text:
    STATE of Louisiana v. Samuel GORDON, Jr.
    Nos. 11-KA-373, 11-KA-374.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.

      Ricky L. Babin, District Attorney, Don-aldsonville, LA, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for PlaintiffAppellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for DefendanVAppel-lant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|20n July 29, 2008, defendant, Samuel Gordon, Jr., was charged by bill of indictment with one count of aggravated rape, in violation of LSA-R.S. 14:42. He was also charged by bill of information with one count of second degree kidnapping, in violation of LSA-R.S. 14:44.1. Defendant pled not guilty to both charges.

On March 17, 2009, trial began before a 12-person jury and ended the following day with a verdict of guilty as charged on both charges. On June 15, 2009, the trial court sentenced defendant to life imprisonment for the aggravated rape conviction and ten years for the second degree kidnapping conviction, to run concurrently. The trial court granted defendant an out-of-time appeal.

1 ¿FACTS

On May 7, 2008, J.K., who was 14 years old at the time, lived with her grandmother and her mother at 228 South Sycamore Street in Gramercy, Louisiana. At approximately 6:00 p.m., J.K. was riding her bike on Oak Street on her way to play basketball with some friends. J.K. testified that while en route, she was stopped by defendant, who asked her to use her bike. Although she did not know defendant; she allowed him to use her bike, because he was elderly. J.K. walked down the street to her friends, and when she walked back to get her bike, it was parked on the side of defendant’s house. According to J.K., as she attempted to mount her bike, defendant grabbed her, with his hands over her mouth, and dragged her inside. Once inside, defendant brought J.K. to a bedroom, threw her on the bed, and pulled her clothes down. Defendant then pulled out his penis, which had a condom on it, opened J.K’s legs, and inserted his penis into her vagina. J.K. could not scream because defendant’s hand was over her mouth; however, she fought back and eventually got out of the house.

J.K. testified that the ordeal lasted for approximately five to ten minutes. Defendant instructed J.K.: “don’t tell nobody [sic], keep this our little secret.” J.K. picked up her bike, immediately went home, and told her grandmother what had happened.

On cross-examination, J.K. explained that she ran out of the house with her pants down, and she pulled them up once she reached her friend’s yard. J.K. also declared that she never parked her bike on the side of defendant’s home to use his phone. On redirect, J.K. stated that she had no doubt in her mind that defendant was the man who pulled her into the house and raped her.

|4R.J., who is J.K.’s grandmother, testified that J.K. returned home around 6:15 p.m., with her hair disheveled, screaming and crying, exclaiming that a man on Oak Street “had put his thing in her.” J.K. was holding her mouth, so R.J. asked if he put it in her mouth and J.K. responded negatively and said he “put it inside of her.” At that point, R.J. knew that her granddaughter had been raped so she immediately called 9-1-1 and reported the incident to the police.

L.K., who is J.K’s mother, testified that she left the residence as J.K. was leaving. When she later arrived home, J.K. was hysterical. R.J. and J.K. told her what had happened. L.K. stated that J.K. was a good child and she was not sexually active before the incident.

Sergeant Joseph Hamilton testified that on May 7, 2008, he was dispatched to a residence on Sycamore Street in Gramer-cy, where he observed J.K., who was distraught and crying. Sergeant Hamilton was attempting to speak with J.K’s grandmother when he received a dispatch to South Oak Street relative to a home invasion at defendant’s home. Eloise Riley, who later testified for the defense, stated that she observed J.K.’s father and a group of men beating on defendant’s door and walking around his house. Detective Claude Louis, Jr. of the St. James Parish Sheriffs Office also responded to the call. Upon arriving at defendant’s residence, both officers observed that the front door was kicked open. After searching the residence twice, defendant was discovered hiding in a closet underneath a pile of clothes. Defendant gave the officers the name Sammy Gordon with an incorrect date of birth, but the discrepancy was resolved. Defendant was transported to St. James Hospital, where he was unable to respond to any questions.

Detective Louis photographed defendant’s residence and also recovered a condom wrapper from a bedroom floor. After processing the scene, Detective | ¿Louis developed a photographic lineup, which was shown to J.K. J.K. immediately identified defendant as the person who had forced her inside and raped her at 266 South Oak Street.

After meeting with the police, L.K. took J.K. to St. James Hospital. Dr. Taylor Sanders treated J.K., who appeared to be calm, in the emergency room. A vaginal examination was performed and evidence was collected for the rape kit. Doctor Sanders discovered fluid in J.K.’s vaginal cavity, but he could not determine if it was semen. Dr. Sanders also testified that J.K. complained of light bleeding after the incident. Dr. Sanders’ medical report reflected that J.K. was 5'6", 226 pounds, and in good physical condition. Dr. Sanders did not observe any trauma or bruises on the victim, but he stated that lack of signs of trauma does not rule out consensual or forced penetration.

Sergeant Mary Kliebert, a juvenile officer with the St. James Parish Sheriffs Department, testified that after receiving a dispatch regarding a sexual assault, she proceeded to St. James Hospital where she interviewed J.K. In her audio-taped statement to Sergeant Kliebert, J.K.’s account of the events was substantially similar to her testimony at trial. However, Sergeant Kliebert indicated that J.K. did not state that she allowed the suspect to use her bicycle; rather, J.K. indicated that he pulled her off of it when she told him he could not use it. J.K. related that she did not know the suspect, but she described him as being older and bald with some gray facial hair.

On May 9, 2008, a search warrant to obtain defendant’s DNA and a warrant for defendant’s arrest were obtained. Defendant was arrested, and after-being advised of and waiving his Miranda rights, he gave a statement to the police. Sergeant Kliebert testified that when defendant changed his story three times, the | (¡interview was terminated. Defendant first stated that J.K. had knocked on his door. Then, he said he was watering his plants when she asked to use the phone, and his story continued to change so the interview was concluded.

On cross-examination, Sergeant Kliebert admitted that neither J.K.’s clothes nor defendant’s clothes were ever tested for forensic evidence. Sergeant Kliebert also confirmed that her report stated that the doctor indicated that seminal fluid was found in J.K.’s vagina. Sergeant Kliebert stated that subsequent testing revealed that the fluid did not match defendant’s DNA. Sergeant Kliebert later explained that the crime lab results indicated that there was no seminal fluid at all found in the rape kit, and that the doctor may have given her the wrong information.

Detective Louis also participated in defendant’s interview. Detective Louis recalled that defendant was asked whether his DNA would match from the sample taken from the victim’s rape kit, and he responded: “I don’t think so.”

Lieutenant Patricia Boudoin of the St. Charles Sheriffs Office testified that after receiving a phone call from Sergeant Klie-bert, she interviewed J.K. at the Children’s Advocacy Center on May 15, 2008. The videotaped interview was played for the jury. J.K.’s taped statement was substantially similar to her testimony during trial. Notably, however, the victim stated that she lent her bike to defendant, which was different from her earlier statement to police.

The defense called Morris Lodrigue, who was defendant’s neighbor, to the stand. Lodrigue testified that at around 6:00 p.m. on the day of the incident, he was outside when he saw J.K. riding up and down the street. Lodrigue never observed defendant ask to borrow J.K’s bike or pull her inside of his house. He did observe J.K. exit defendant’s home, walk on the side of the house to her bike, and ride off; however, she was not screaming and was fully dressed.

|7On cross-examination, Lodrigue admitted that he had never seen the girl at defendant’s house before so he asked defendant why she was inside and he responded that she wanted to use the phone. This made Lodrigue suspicious because she could have used the phone outside.

Ryan Miller, who was 43 years old at the time of trial, testified that she was sexually involved with defendant at the time of the incident. Miller stated that she and defendant were sexually intimate on the night before the incident and defendant used a condom. Miller also testified that defendant was disabled. He had type II diabetes and knee surgeries, which caused him to have difficulty walking, as well as a heart condition, hypertension, and high blood pressure.

LAW AND DISCUSSION

In his sole assignment of error on appeal, defendant claims that the evidence was insufficient to uphold his convictions for aggravated rape and second degree kidnapping. He asserts that it was “a near physical impossibility” for the elderly and sickly defendant to have committed the charged crimes against J.K. who was in good physical shape, weighing 226 pounds and being 5 foot 6 inches in height. In addition, he argues that the physical evidence tested had no detectable DNA and other evidence that was collected was not tested.

The constitutional standard for testing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and I «determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Bolden, 03-0266 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050,1056.

Defendant was convicted of aggravated rape. Aggravated rape is defined in LSA-R.S. 14:42 in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.

Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime. LSA-R.S. 14:41.

Defendant was also convicted of second degree kidnapping. LSA-R.S. 14:44.1 states in relevant part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(3) Physically injured or sexually abused;
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any. person from one place to another.

Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. | ^State v. Rogers, 494 So.2d 1251, 1254 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). Accordingly, the reviewing court’s role is not to assess credibility or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79, cert, denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).

J.K. testified that as she attempted to mount her bike, defendant grabbed her and dragged her into his home, where he inserted his penis into her vagina. During the encounter, J.K. was fighting defendant, who had his hand over her mouth, and finally escaped. J.K. testified that there was no doubt in her mind that defendant was the person who forced her off of her bike and raped her in his home.

We note that there are some inconsistencies between J.K.’s original statement to the police and the statement she gave to Lieutenant Boudoin. In particular, Sergeant Kliebert testified that in her original statement, J.K. stated that she did not lend defendant her bike; however, in her subsequent statement, she stated that she allowed defendant to borrow her bike. However, at trial, J.K. explained that she had allowed defendant to use her bike and in the first statement she was referencing the events that took place after she gave defendant the bike and she was re-claiming it.

J.K.’s testimony also contradicts the testimony of Morris Lodrigue, who indicated that he saw J.K. riding her bike, but never observed defendant ask to borrow it. Lo-drigue also testified that he saw J.K. exiting defendant’s home; however, she was fully clothed and did not appear to be in distress. The jury was presented with these discrepancies and apparently chose to believe J.K.

1 ^Defendant also attacks J.K’s credibility suggesting that defendant was too old and ill to have committed the crimes. Ryan Miller testified that defendant was disabled, and he had type II diabetes, knee surgeries, which caused him to have difficulty walking, hypertension, and high blood pressure. However, Miller also testified that defendant was sexually active and could walk, albeit with difficulty. Despite Miller’s testimony, there is nothing in the record which reflects that defendant irrefutably could not have committed the crimes. The jury apparently did not believe defendant’s claim that his physical limitations would have made it impossible for him to commit the crimes alleged.

The jury heard all of the evidence and apparently found the victim, J.K., to be credible and determined that defendant forcibly took J.K. into his home thereby kidnapping her, and raped her despite her continuous struggle to break free and flee. A review of the record as a whole shows the jury’s determination was reasonable.

Defendant also relies on a lack of scientific evidence to support his claim that the evidence was insufficient to prove he committed aggravated rape. However, in the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243, p. 13 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. See also State v. Tapps, 02-0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1001, writ denied, 02-2921 (La.4/21/03), 841 So.2d 11789, where this Court held that the victim’s testimony alone, even absent any additional physical evidence, was sufficient to establish the elements of the offense of forcible rape.

The testimony of the victim and other witnesses was sufficient to establish all of the elements of the crimes of aggravated rape and second degree kidnapping. We note that the victim provided a reasonable explanation for her seemingly inconsistent statements and the jury made credibility determinations when considering conflicting testimony of the witnesses. Considering all of the testimony and evidence, we find that the record contains sufficient evidence to uphold defendant’s convictions for aggravated rape and second degree kidnapping.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review did not reveal any errors that require corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED

      . The victim's initials, and those of certain family members, are used under the authority of LSA-R.S. 46:1844(W)(3), which allows the court to protect the identity of a crime victim who is a minor or a victim of a sex offense by using his or her initials. See State v. Greene, 06-667, p. 3 (La.App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229, writ denied, 07-0546 (La. 10/26/07), 966 So.2d 571.

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

      . Defendant also claims that the fact that the victim's father kicked in his door is inexplicable when J.K. stated that she did not know who had raped her. However, J.K. explained in both of her statements that the incident occurred on Oak Street in a house that was pink and tan or cream. R.J. also confirmed in her statement that J.K. had indicated that the house was pink and white. Given a street and description of the house, it is reasonable that J.K.'s father could have located defendant's home.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Erlich Joel ROSALES.
    No. 11-KA-674.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellant.
    Robert J. Pastor, Attorney at Law, New Orleans, LA, for Defenant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gThe State of Louisiana appeals the granting of a Motion to Quash Predicates in favor of Defendant, Erlich Joel Rosales, for two prior DWI convictions in the 24th Judicial District Court, Division “P”. For the following reasons, we reverse and remand for further proceedings.

STATEMENT OF THE CASE

On June 17, 2010, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Erlich Joel Rosales, with driving while intoxicated (DWI), third offense, in violation of LSA-R.S. 14:98. The bill of information alleged that Defendant had two prior convictions for DWI. The first predicate alleged was on June 12, 2003, in case number F1436651 in First Parish Court, Division “B,” in Jefferson Parish. The second predicate alleged was on March 3, 2009, in case number 539311 in the 29th Judicial District Court, Division |S“E,” in St. Charles Parish. Although Defendant did not appear at the arraignment on June 30, 2010, a plea in absentia of not guilty was entered on his behalf.

Thereafter, on September 24, 2010, Defendant filed a “Motion to Quash Predicates with Memorandum.” On September 29, 2010, a hearing was held on the motion to quash. On December 1, 2010, Defendant’s motion to quash was granted, and the State orally moved for an appeal. On December 8, 2010, the State filed a written motion for appeal, which was granted on the same date. The State’s appeal follows. FACTS

The bill of information was quashed in this matter, and therefore, the case did not proceed to trial. Nevertheless, the facts are not at issue.

ASSIGNMENT OF ERROR

The State’s sole assignment of error asserts the trial court erroneously granted Defendant’s Motion to Quash the Predicates.

DISCUSSION

The State argues Defendant did not meet his burden under State v. Carlos, 98-1366 (La.7/7/99); 738 So.2d 556, by failing to produce affirmative evidence for either predicate plea that he suffered an infringement of his Boykin rights because he did not understand the English language and he was not advised of potential deportation consequences by the court or his attorneys. The State asserts that neither alleged deficiency is a constitutional violation that would render his predicate pleas unconstitutional for purposes of enhancement. The State argues 14that the transcript shows that Felix Reyes was present to translate for the first predicate; defense counsel admitted that he represented Defendant in the second predicate; and that a translator was present at the time of the plea. Further, the State argues that Padilla v. Kentucky does not apply in the instant proceeding as a collateral attack on a predicate plea. The State argues Defendant was not at risk of deportation, and even if the Defendant could prove that he was not advised of the potential deportation consequences, he cannot prove he was prejudiced. The State concludes that Defendant’s predicate pleas were knowing and voluntary and were taken in conformity with the procedural safeguards set forth in Boykin v. Alabama, and later codified in LSA-C.Cr.P. arts. 556 and 556.1.

Defendant responds that he has a very limited understanding of the English language and was not granted the full range and force of his constitutional rights because his Boykin rights, the consequences of any future DWI convictions, and the deportation consequences of his pleas were inadequately explained to him. Defendant argues that the State presents its opinion about his ability to understand English, noting that his apparent ability at the hearing in September of 2010 cannot be used to judge his ability at the time of his predicate convictions in 2003 and 2009. Defendant contends there is an indication that a translator was present for the first predicate plea, but there is no information regarding his qualifications and competency. He further suggests that there is no evidence that the waiver of rights form was translated to him, noting that the cer-tifícate at the end of the form is incomplete. Defendant argues there is no signed waiver of rights form for the second predicate plea, and the transcript does not show a translator was present. Further, Defendant contends he was not made aware of the enhanced penalties of a third offense in neither of the proceedings, nor was he notified of any possible 1 immigration consequences of his guilty plea to a third offense. Finally, Defendant argues that for the second predicate, the District Attorney in St. Charles Parish agreed that the first conviction was inadequate and Defendant pleaded to a first offense, instead of a second offense.

In the instant proceedings, Defendant filed a motion to quash the predicates, arguing that he was a “non-national” with a limited understanding of the English language. He argued that he did not have a translator present in either.of the predicate proceedings to explain to him the repercussions of his plea. He further claimed that he was not notified in either case of the immigration consequences that the predicates would initialize. Defendant filed a memorandum in support of his motion. In the memorandum, he argued that his pleas were not made with the full knowledge of his rights and the nature of the charges against him as required by LSA-C.Cr.P. art. 556. He argued that a translator was present for the proceeding for the first offense, but the waiver of rights form, which he signed on June 12, 2003, does not reflect that the form was translated for him. He further argued that the certification was incomplete and undated. As for the second offense, Defendant argued that there was no signed waiver, and the March 3, 2009 transcript shows no evidence that a translator was present to assist him. He argued that, in both cases, he was not made aware of the consequences of his enhanced penalties that could come into play with a third offense, nor was he informed of possible immigration consequences of the guilty pleas, citing Padilla v. Kentucky, supra. Defendant argued because of his limited English proficiency at the time of the predicates, the aid of an interpreter was essential in ensuring he understood his rights and the consequences of the pleas. He argued that there was “at least significant doubt with respect to whether the defendant was made fully aware of | fithat information through the use of an interpreter.” He argues that the pleas were made without his full understanding of the proceedings against him in violation of LSA-C.Cr.P. art. 25.1(A).

On September 29, 2010, a hearing was conducted on the motion to quash. Defense counsel argued that, when he was charged in St. Charles Parish, Defendant was not charged with a second offense because the District Attorney indicated he felt the predicate from First Parish Court was not sufficient. However, he recognized the record was silent as to this. He further argued that the trial judge only discussed the enhanced second offense and did not go any further. Counsel also argued neither he nor the court advised Defendant of the immigration consequences he faced if he pleaded to an offense that resulted in a sentence of greater than one year.

The State responded by arguing that it was Defendant’s burden of proof, and that there was no evidence that Defendant was a “non-national.” The State introduced two exhibits into evidence. State’s Exhibit 1 involved the predicate from Division “B” in case number F1436651. The State noted that page two reflected that Felix Reyes acted as an interpreter on June 12, 2003. The State also pointed out that the transcript showed that Defendant was answering questions, suggesting that he obviously understood the English language. The State also presented State’s Exhibit 2, which involved the second predicate, case number 539311. The State argued that for this predicate, Defendant had an attorney who claimed he went over everything with him and acknowledged that Defendant understood. Again, the State contends that the transcript suggests that Defendant was able to answer questions. The State argued that both exhibits demonstrated 17that Defendant knew what was occurring during the proceedings. The State also claimed the Padilla argument was irrelevant, noting that the case stemmed from a deportation proceeding. The State argued that he could not be deported for the two misdemeanor convictions, and that Defendant suffered no prejudice because he had not been deported. The State further argued that the scope of Boykin had not been expanded beyond the right to a trial by jury, the right to confrontation, and the privilege against self-incrimination.

After the State submitted its argument at the hearing, an interpreter (Jeannette Zapata) was sworn in for Defendant’s testimony. Defendant was asked if he understood the English language, and he responded, “Not too much.” He explained that Ms. Zapata was always present when he discussed things with his counsel and was present in St. Charles Parish when he answered the judge’s questions. He also testified that he had been in this country for 13 years and was a permanent resident in the United States. He said that on that day he had discussed the immigration problems he faced if he was sentenced to more than one year. Defendant testified that he had a translator in First Parish Court for his predicate, but that the translator did not correctly translate what was going on.

During Defendant’s testimony at the hearing, the trial judge interrupted and said the following, “[w]ait one second. If he can answer the questions in English, why do we need her? He’s answering the questions before she can ever interpret to you.” Defense counsel said, “[w]ell, I want to make sure — [.]” The judge interrupted again by stating,

Well, if he can answer — ma’am, I’m getting ready to let you have a seat. If he can answer the questions, we don’t need to go through all of this. Have a seat, ma’am. If he can answer the questions, let him answer the questions. We’re wasting time here with this.

| ^Defendant then testified that he was from Honduras.

Defense counsel ceased in his questioning of Defendant and, instead, made further arguments to the court. He claimed that his argument regarding deportation was not a collateral issue, but became a substantial right because of the serious repercussions. Counsel argued that this should have been explained to Defendant. The State responded that the “transcripts speak for themselves.” The court noted that the matter was submitted and would be taken under advisement. Thereafter, on December 1, 2010, the trial court granted Defendant’s motion to quash, without giving reasons.

A presumption of regularity attaches to prior convictions in habitual offender DWI cases. State v. Collins, 04-255, p. 5 (La.App. 5 Cir. 10/12/04); 886 So.2d 1149, 1153, writ denied, 04-2798 (La.3/11/05); 896 So.2d 62. In State v. Balsano, 09-0735, p. 8 (La.6/19/09); 11 So.3d 475, 479 (per curiam), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under LSA-R.S. 15:529.1, State v. Shelton, 621 So.2d 769, 774-80 (La.1993), or in habitual offender D.W.I. prosecutions, State v. Carlos, 98-1366 (La.7/7/99); 738 So.2d 556. This line of jurisprudence sets forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the recidivist habitual offender and driving while intoxicated statutes. Furthermore, this Court recognizes a motion to quash is the proper vehicle to challenge the constitutional validity of a prior DWI guilty plea. See State v. Lowry, 00-107, pp. 3-4 (La.App. 5 Cir. 6/27/00); 762 So.2d 1275,1277.

The Louisiana Supreme Court’s decision in Carlos established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced |3PWI proceedings. Balsano, supra. Adopting the Court’s prior opinion in Shelton, and acknowledging the presumption of regularity that attaches to prior final convictions, Carlos placed on the State the initial burden of proving the existence of the prior guilty pleas, and that the defendant was represented by counsel when the pleas were taken. Balsano, supra (citing Carlos, 98-1366; 738 So.2d at 559). If the State meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Balsano, supra (quoting Carlos, 98-1366; 738 So.2d at 559). If the defendant makes the required showing, the burden reverts to the State to produce a “perfect” Boykin transcript, i.e., one “which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin.” Id. (quoting Carlos, 98-1366; 738 So.2d at 559, n. 4 and Shelton, 621 So.2d at 775, n. 12). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Balsano, supra (quoting Carlos, 98-1366; 738 So.2d at 559).

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. State v. Davis, 03-488, p. 7 (La.App. 5 Cir. 11/12/03); 861 So.2d 638, 642, writ denied, 03-3401 (La.4/2/04), 869 So.2d 874. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981).

| ipThe Balsano court explained that Carlos spoke more broadly about the prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemeanor offenses as to which the defendant does not have the right to a jury trial, shrinking the three-right rule to two rights. Balsa-no, 09-0735 at 9; 11 So.3d at 479-80.

Whenever a misdemeanor guilty plea is to be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives these enumerated constitutional rights. State v. Vu, 02-1243 (La.App. 5 Cir. 4/8/03); 846 So.2d 67, 71. The trial judge must also ascertain that the accused understands what the plea connotes and its consequences. “While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” Id.

In the present case, Defendant challenged the constitutionality of his two predicate DWI guilty pleas. As such, under this line of jurisprudence, the State had the initial burden of showing the existence of the guilty plea, and that Defendant was represented by counsel when the plea was entered.

For the first predicate, case number F1436651 from First Parish Court, the State presented minute entries, a waiver of rights form, and a commitment reflecting the guilty plea. As such, the State met the first prong of its initial burden by providing proof of the existence of the predicate guilty pleas. However, it appears that defendant was not represented by counsel at the time he pleaded guilty to this offense. The waiver of rights form reflects the word “None” by the signature line for counsel. Further, Defendant produced the June 12, 20031 ^transcript of the guilty plea, which reflects Defendant was “IN-PROPER PERSON.”

Defendant had a right to counsel at the time of his predicate plea. Regardless of whether imprisonment is actually imposed, Article 1, Section 13 of the Louisiana Constitution guarantees a defendant the right to counsel in any case punishable by a term of imprisonment. State v. Wise, 04-1445, p. 3 (La.App. 5 Cir. 5/31/05); 905 So.2d 387, 390. A defendant has the right to counsel under the Sixth Amendment of the United States Constitution only where a sentence of imprisonment is imposed. Id. A sentence of imprisonment includes a suspended sentence in which the defendant is placed on probation. Id. In this case, Defendant received a sentence for his predicate plea that included imprisonment, which was suspended. Defendant was placed on active probation. As such, Defendant was entitled to counsel. The right to counsel is a fundamental right guaranteed by the state and federal constitutions. State v. Rodrigue, 01-377 p. 6 (La.App. 5 Cir. 8/28/01); 795 So.2d 488, 493. Once informed of the right to counsel, however, an accused may intentionally waive the right. Id.

Because the predicate plea was uncounseled, the State had the burden of proving a valid waiver of counsel. An uncounseled misdemeanor conviction, absent a valid waiver of counsel, may not serve as a predicate for enhancement of a subsequent DWI offense. State v. Bush, 03-1438, p. 4 (La.App. 5 Cir. 4/27/04); 873 So.2d 795, 798. The State bears the burden of proving that an unrepresented defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI offense. Id. The determination of the validity of the accused’s waiver of counsel rests on the totality of the circumstances in each case. Id.

| lgBefore accepting a misdemeanor guilty plea, the trial judge should expressly advise the defendant of his right to counsel and to appointed counsel if he is indigent. Rodrigue, 01-377 at 6; 795 So.2d at 493. The trial judge should determine if the waiver is knowing and intelligent under the circumstances. Id. In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. Id. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question which depends upon the facts and circumstances of each case. Id. (citing State v. Strain, 585 So.2d 540, 542 (La.1991)). The critical issue on review of the waiver of rights is whether the defendant understood the waiver. State v. Nabak, 03-919, pp. 5-6 (La.App. 5 Cir. 12/30/03); 864 So.2d 758, 762.

In Strain, 585 So.2d at 542, the Louisiana Supreme Court explained that in accepting a waiver of counsel at trial, the trial judge should advise the accused of the nature of the charges and the penalty range, should inquire into the accused’s age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver. In State v. Stevison, 97-3122 (La.10/30/98); 721 So.2d 843, 844-45 (per curiam), the Louisiana Supreme Court stated that Strain, supra, did not establish inflexible criteria or a magic word formula for determining the voluntariness of a waiver.

In State v. Simmons, 05-1462, pp. 1-2 (La.3/17/06); 924 So.2d 137, 138 (per curiam), the Louisiana Supreme Court emphasized that Strain did not establish rigid criteria for determining the voluntariness of a plea in misdemeanor cases and an accompanying waiver of counsel. This is because a trial judge who personally | TSaddresses the accused during the colloquy is in a position to assess the extent of inquiry necessary to determine the knowing, intelligent, and voluntary nature of the waiver of counsel' as well as of the guilty plea. Id.

In the present case, the waiver of rights form reflects that Defendant was advised that he had a right to have an attorney present at every stage of the proceeding, and if Defendant was unable to financially employ counsel, one would be appointed to represent him. The form further informed Defendant of his right to counsel at trial and to be appointed counsel if he could not afford to hire counsel. Defendant signed this form. Further, Defendant received a benefit by pleading, in that he pleaded guilty pursuant to LSA-C.Cr.P. art. 894. In fact, the minute entries show that, when Defendant completed his probation, his conviction was set aside, and his case was dismissed. The statement regarding counsel was not limited to representation at trial, especially because the form later included a statement about trial representation. Further, Defendant was specifically told by means of the form that he had a right to counsel at every stage of the proceedings. Further, the transcript of the colloquy reflects that the judge advised Defendant that he had a right to be represented by an attorney, and if he could not afford one then an attorney would be appointed to represent him. Defendant acknowledged his right.

The transcript from this predicate plea reflects that the judge confirmed with Defendant that he wished to plead guilty to driving while intoxicated. Defendant was told of his right to go to trial and, if convicted, his right to appeal the judge’s decision. He was further told that he had a right to cross-examination and a privilege against self-incrimination. Defendant indicated that he understood these | urights. Defendant denied that he had been forced to plead guilty. Defendant agreed that he was pleading guilty because he in fact was driving while intoxicated on May 19, 2002. The judge then went on to explain to Defendant that, if he was charged with another offense within the next ten years, it would be considered a second offense. He also informed him of the possible sentence for a second offense. Defendant indicated that he still wanted to plead guilty. The judge found that Defendant made a knowing and intelligent, free and voluntary act of pleading guilty and accepted his plea under the provisions of LSA-C.Cr.P. art. 894(B). Defendant was then sentenced.

The minute entries and the waiver of rights form indicate that Defendant was informed of his Boykin rights. The waiver of rights form reflects that Defendant was informed that he had a right to a trial by judge and if convicted could appeal, that he had a right of cross-examination, and the privilege against self-incrimination. He was also told that by pleading guilty under Article 894 he was waiving all of those rights. The form explained the potential penalties for first offenses, second offenses, third offenses, and fourth or subsequent offenses. The form explained that the current conviction could be used against him in the future to enhance or increase the sentence or penalties for any subsequent convictions of driving while intoxicated. The form further reflected that, if Defendant elected to have a trial, he had a right to have competent counsel represent him at trial, and if he was unable to pay for counsel one would be appointed to represent him. Defendant signed the form, indicating that he was fully satisfied with the way the court handled his case, and that no promises had been made to him in connection with the plea. Defendant’s date of, birth and social security-number was included on the form. Defendant signed the certifícate on the form, which stated that the rights had been read and explained to him to his full satisfaction and that he had no 11fifurther questions to ask concerning his rights. Defendant failed to date the certificate or fill in the blank to identify who had read and explained his rights to him.

The evidence presented does not include any indication of Defendant’s education, and the transcript does not include any discussion regarding Defendant’s mental condition or specific inquiries about Defendant’s understanding of his waiver of counsel. However, the determination of whether a Defendant understood his waiver of counsel prior to pleading guilty to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. State v. Kerwin, 02-103, p. 5 (La.App. 5 Cir. 5/15/02); 821 So.2d 28, 31. The Louisiana Supreme Court has recognized that crimes of driving while intoxicated are non-complex crimes, and are almost self-explanatory, thus requiring less judicial inquiry to determine if defendant understood his waiver of counsel in the case of a guilty plea. See Nabak, 03-919; 864 So.2d at 762. See also State v. Theriot, 00-870, pp. 2-13 (La.App. 5 Cir. 1/30/01); 782 So.2d 1078, 1084, where this Court recognized that the judge did not make an inquiry into the defendant’s background and competency. However, this Court determined that in light of the totality of the circumstances, there was a valid waiver of counsel.

In the present case, the judge granted Defendant’s motion to quash, without reasons and without addressing whether he believed there was a valid waiver of counsel. Defendant did not challenge the waiver of counsel in his motion to quash and does not raise such an issue on appeal.

Nevertheless, as recognized by the jurisprudence, Defendant pleaded to uncomplicated, misdemeanor offenses. The record reflects that Defendant did not ask questions during the proceedings. See Theriot, 00-870, 782 So.2d at 1085, 11fiwhere this Court, in determining the validity of a waiver of counsel, considered that the defendant signed a waiver of rights form acknowledging his right to ask questions, and the transcript of the plea indicated that the defendant did not ask questions or hesitate in pleading guilty. Further in the present case, Defendant received the benefit of pleading under LSA-C.Cr.P. art. 894, a factor considered relevant by this Court in Theriot, supra. Further, the transcript reflects that the clerk mentioned that other charges would be dismissed.

The trial judge for the first predicate concluded that there was no need to inquire further to establish the knowing, intelligent, and voluntary nature of the waiver of counsel. The trial judge was in the position to assess the extent of the inquiry necessary to determine the knowing, intelligent, and voluntary nature of the waiver of counsel. See State v. Clement, 08-296, pp. 12-13 (La.App. 5 Cir. 11/25/08); 1 So.3d 547, 554, writ denied, 08-2989 (La.10/16/09); 19 So.3d 468.' Under these circumstances, we find that the State met its burden of showing the knowing, intelligent, and voluntary nature of the waiver of counsel under the totality of the circumstances. The burden then shifted to Defendant to make an affirmative showing of an infringement of his rights or a procedural irregularity in the taking of the first predicate plea.

In the second predicate plea, case number 539311, from the 29th Judicial District Court, the State presented a transcript of the guilty plea colloquy. As such, the State presented proof of the existence of the predicate guilty plea. Further, the transcript reflects that Defendant was represented by counsel. As such, the burden shifted to Defendant to produce an affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the predicate plea.

Defendant sought to meet this burden as to both predicates by making two arguments. First, he argues that he was a “non-national” and had difficulty | ^understanding English. Second, Defendant argues that he was not informed of the possible immigration consequences of the guilty pleas. He argues that his pleas were not made with the full knowledge of his rights and of the nature of the charges against him as required by LSA-C.Cr.P. art. 556.

LSA-C.Cr.P. art. 556 provides the following:

A. Except as otherwise provided in Paragraph B of this Article or in R.S. 32:57 or in any other applicable law, in a misdemeanor case, if the defendant is not represented by counsel of record, the court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary and is made with an understanding of the nature of the charge and of his right to be represented by counsel.
B. In a misdemeanor case in which the court determines that a sentence of imprisonment will actually be imposed or in which the conviction can be used to enhance the grade or statutory penalty for a subsequent offense, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to have a trial, and if the maximum penalty provided for the offense exceeds imprisonment for six months or a fine of one thousand dollars, a right to trial by a jury or by the court, at his option.
(4) At that trial he has the right to confront and cross-examine witnesses against him and the right not to be compelled to incriminate himself.
(5) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
C.The court shall require either:
UP That a verbatim record of the proceedings at which the defendant enters a plea be made.
(2) That a form reflecting the court’s advice to the defendant and the court’s inquiry into the voluntariness of the plea be signed by the court and the defendant and filed in the record at the time of the plea.
D.Any variance from the procedures required by this Article which does not affect substantial rights of the defendant shall not invalidate the plea.

Defendant failed to show that any alleged violation of LSA-C.Cr.P. art. 556 affected his substantial rights. Defendant claimed that his immigration status would be affected if he faced deportation for imposition of a sentence that was greater than one year. He argued that he should have been advised of this during the proceedings for his predicate convictions. The predicate convictions did not involve sentences over one year. Even if Defendant was not told of the effect that a future conviction would have on his immigration status, the record does not reflect that Defendant was involved in any deportation proceedings. At the motion to quash hearing, he testified that he was a permanent U.S. resident.

Further, Defendant cited Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) in support of his argument. However, this case, which was only recently decided in 2010, involved post-conviction relief proceedings. The Padilla court held that defense counsel engaged in deficient performance by failing to advise defendant that his plea of guilty made him subject to automatic deportation. This case abrogated State v. Montalban, 00-2739 (La.2/26/02); 810

So.2d 1106, cert, denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002), which had held that defendant’s possible deportation, based on his conviction for a felony, was a “collateral consequence” of his guilty plea, and thus, defense counsel was not required to explain the possibility of deportation to defendant to insure that his guilty plea was free and voluntary.

[ ¶ ¡Defendant is attempting to make arguments regarding his predicate proceedings that should have been raised as a post-conviction relief claim, directly in those predicate cases. Defendant should have raised an ineffective assistance of counsel claim in the predicate in which he was represented. The prescriptive periods for doing so with these predicate convictions have expired, and none of the exceptions to prescription are applicable. See, LSA-C.Cr.P. art. 930.8.

In addition, after reviewing the transcripts of both predicate proceedings, there is no indication that Defendant did not understand the proceedings. The transcripts do not reflect any demonstration of difficulty in understanding English or any of the proceedings. Nevertheless, there was a translator available at both predicate proceedings. The evidence submitted for the first predicate conviction indicates that a translator was present. The minute entries in State’s Exhibit 1 and the transcript in Defendant’s Exhibit 1 show an interpreter was present. Further, Defendant testified at the motion to quash proceeding that a translator was present at the second predicate proceeding in St. Charles Parish. The transcript of the motion to quash proceeding also suggests that Defendant understood the English language. The judge at this proceeding had the interpreter take a seat after realizing that Defendant was interpreting and answering questions before the interpreter had time to speak, apparently believing that the interpreter was unnecessary.

Further, Defendant argues that -he was not advised previously of the enhanced penalties of a third offense. However, the waiver of rights form executed in the first predicate conviction reflects an advisal of potential penalties for third and subsequent offenses, and defendant signed this form. There is no evidence that Defendant did not understand these consequences.

120Pefendant failed to meet his burden of making an affirmative showing of an infringement of his rights or a procedural irregularity in the taking of the predicate pleas. As such, the burden never returned to the State. Nevertheless, we find that the State did produce a “per-feet Boykin transcript” for the second predicate, which reflected a voluntary, informed, and articulated waiver of the Boy-kin rights. The State presented State’s Exhibit 2, which included the March 3, 2009 transcript, reflecting Defendant’s guilty plea to a first offense DWI. Defendant was represented, and his counsel explained that he had gone over the Boykin form with Defendant. The State described the agreement as to sentencing, and Defendant confirmed the agreement. Defendant was questioned by the court, and Defendant responded to the court’s questions. Defendant gave his name and address and agreed that he understood that he was giving up his right to a trial by a judge and a right to be represented by an attorney, who would be required to represent him at trial, and that one would be appointed if he could not afford one. He was also told that he had a right to confrontation and a privilege against self-incrimination. Defendant agreed that he ■understood this. Defendant was advised of the penalty he faced for the first offense and was informed that the offense could be enhanced. Defendant indicated that he understood this. Defendant agreed that he was guilty, and that he had not been forced, threatened, or intimidated into making the plea. The court found a factual basis for the plea and accepted the plea as freely, knowingly, and voluntarily made. Defendant was sentenced, and when asked if he had any questions, Defendant responded that he did not.

For the first predicate, the State presented a minute entry and a waiver of rights form that reflected the waiver of Defendant’s Boykin rights. It appears from the motion to quash transcript that the defense produced the transcript of the first predicate at the beginning of the hearing. Nevertheless, even if the State had not |21 produced a “perfect Boykin transcript,” the judge would have had to weigh the evidence submitted by both sides and determine whether the Boykin rights were prejudiced. In the present case, the record does not suggest that Defendant’s Boykin rights were prejudiced.

The two predicate convictions were not constitutionally infirm and could be used for enhancement purposes. As such, we find the trial judge erred by granting defendant’s motion to quash. Accordingly, the trial court’s granting of the motion to quash is reversed.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveawc, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (LaApp. 5 Cir.1990). The review reveals no errors patent in this case.

DECREE

The trial court’s granting of Defendant’s Motion to Quash Predicates is reversed. The matter is remanded for further proceedings.

REVERSED AND REMANDED

      . A “Motion, Affidavit and Order to Waive Defendant’s Presence at Arraignment” is included in the record. An order was signed, allowing Defendant to waive his presence and appear through counsel.

      . It appears from the record's index that the September 29, 2010 minute entry was a nunc pro tunc entry, although not marked as such. Page 3 of the record includes a September 27, 2010 minute entry that appears identical to that of the September 29th entry. The June 22, 2011 letter included in the record reflects that the court reporter was unable to locate any proceedings on September 27, 2010.

      . The December 1, 2010 minute entry reflects that the State would take a "writ” to the Fifth Circuit, and the return date for the “appeal” was January 25, 2011. The transcript reflects that the State gave its intent to take an appeal, and the judge gave the State 30 days from December 1, 2010, to do so.

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

      . Padilla v. Kentucky,-U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

      . We note that there is no evidence of these discussions regarding the inadequacy in the transcript presented at the hearing.

      . It is noted that this article was added by Acts 2008, No. 882, § 2. Subsection A provides the following: "If a non-English-speaking person who is a principal party in interest ... has requested an interpreter, a judge shall appoint, after consultation with the non-English-speaking person or his attorney, a competent interpreter to interpret or to translate the proceedings to him and to interpret or translate his testimony.”

      . LSA-C.Cr.P. art. 894(B)(2) provides that "The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender.”

      . See State v. Garrity, 97-958, pp. 5-6 (La. App. 5 Cir. 1/27/98); 708 So.2d 1096, 1098, where this Court recognized that the guilty plea form only advised the defendant of the right to counsel at trial and noted that the form did not explain the defendant's right to be represented by counsel at all stages of a criminal proceeding; in considering the record as a whole, this Court found that this was insufficient.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Brandon DORSEY.
    Nos. 11-KA-745, 11-KA-955.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

li>On June 7, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Brandon Dorsey, with the following offenses: aggravated flight from Deputy Bob McNulty in violation of LSA-R.S. 14:108.1 C (Count 1); possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1 (Count 2); attempted armed robbery of Jena Moorman while armed with a firearm in violation of LSA-R.S. 14:27 and 14:64 (Count 4); and armed robbery of Enola Jackson while armed with a firearm in violation of LSA-R.S. 14:64 (Count 5). Defendant was arraigned on June 22, 2010 and pled not guilty.

On December 7, 2010, the State amended Count 4 of the bill of information to allege that both defendant and co-defendant, Glenn Dickerson, committed the armed robbery of Jena Moorman while armed with a firearm in violation of LSA-R.S. 14:64. On that same date, the State also amended Count 6 of the bill of information to allege that both defendant and Dickerson committed the armed robbery of Gregory Barbier while armed with a firearm in violation of LSA-R.S. 14:64. Defendant was arraigned on the amended bill and pled not guilty on December 13, 2010.

On December 8, 2010, the State filed a “Notice of Intent to Invoke Firearm Sentencing Provision Under Louisiana Revised Statute 14:64.3.” On December 15, 2010, the trial judge denied defendant’s motion to sever offenses. After a | shearing, defendant’s motion to suppress statement was denied on March 2, 2011. On March 2 and 3, 2011, the case was tried before a 12-person jury that found defendant guilty as charged on Counts 1, 2, and 4 and not guilty on Counts 5 and 6.

Defendant’s motion for new trial and motion for post-verdict judgment of acquittal were denied on April 1, 2011, after a hearing. On that same date, defendant waived sentencing delays, and the trial judge sentenced him on Count 1 to imprisonment at hard labor for two years, on Count 2 to imprisonment at hard labor for ten years, and on Count 4 to imprisonment at hard labor for thirty-five years.

The State filed a multiple bill alleging defendant to be a third felony offender, and defendant denied those allegations. Defendant later filed a “Response and Objection to Habitual Offender Bill of Information” on April 21, 2011. On April 29, 2011, defendant filed a motion for appeal that was granted.

On June 27, 2011, the trial judge found defendant to be a third felony offender after a hearing. Defendant’s “Motion to Depart from Mandatory Minimum Sentence Pursuant to LSA-R.S. 15:529.1” was denied. The trial judge then vacated the original sentence on Count 4 and re-sentenced defendant under the multiple bill statute to imprisonment at hard labor for 67 years to be served without benefit of probation or suspension of sentence. Defendant’s motion to reconsider sentence was denied. On July 21, 2011, defendant filed a timely motion for appeal that was granted.

The following was adduced at trial. On April 24, 2010, at approximately 1:00 a.m., Enola Jackson arrived home and parked in front of her house at 2905 Dove Avenue on the Westbank in Jefferson Parish, after which a dark-colored car pulled up behind her. Two black males with guns approached her vehicle, one on peach side, and told her to give them what she had. When they subsequently asked for her purse, Ms. Jackson told them she did not have one. Afterward, the males took her cell phone and an old radio and then left in their car. She thought that there might have been a third person in the suspects’ car because the car was running.

Ms. Jackson called 911 and reported the incident. She described one of the males as very dark-skinned with a low haircut, and the other male as being a lighter color ■with dreadlocks and a gold tooth in the top of his mouth. Later that night, a police officer took her to a scene, where she identified Glenn Dickerson as the robber with the dreadlocks. Her level of certainty of the identification was between “a seven and eight.” Ms. Jackson believed that defendant looked like the other robber, but she was not as sure of that identification as she was of her identification of Dickerson.

On April 24, 2010, at approximately 1:80 a.m., Gregory Barbier pulled in his driveway at 1009 Curtis Drive in Harvey. His girlfriend, Jena Moorman, and her 10-year-old son were in the truck with him. Mr. Barbier exited the truck and walked to the front of it. At that point, a black male put a gun in his face and said, “Give me my money.” When Mr. Barbier said he did not have any money, the robber said, “Give me my f.cking money.” Again Mr. Barbier said he did not have any money as he put his hands up and took a couple of steps backwards.

At that point, he heard Ms. Moorman scream, and when he turned and looked, there were two other black males on the other side of the truck. All three males were armed. Mr. Barbier ran around to the back of the truck, and one of the males hit him in the back of the head and knocked him down. As Mr. Barbier was standing up, he saw the three males run to their car, a black Ford Contour, and take |Boff. The robbers took Ms. Moorman’s purse. They also took a bag of clothes and a cosmetic bag Mr. Barbier had in his hand.

After checking on Ms. Moorman and her son, Mr. Barbier ran after the car with á cell phone in his hand and called 911. While he was on the phone, Ms. Moorman picked him up in the truck, and they drove across the expressway to the other side of Farington, but they lost track of the vehicle. Mr. Barbier described the first person who approached him as a big guy with a dark-colored shirt and dreadlocks. He also described one of the other robbers as having dreadlocks and the other one as having short hair.

Later on, Mr. Barbier viewed a photographic lineup and positively identified Glenn Dickerson, the perpetrator who was the “big guy” with the dreadlocks. He was not able to identify anyone else. Mr. Barbier identified numbers 2 and 3 in the lineup as possible perpetrators; however, defendant’s photograph was in position number 6. Ms. Moorman was not able to identify anyone in the photographic lineups.

After the robberies, Officer Renoid Ber-thelot of the Jefferson Parish Sheriffs Office (JPSO) was advised to be on the lookout for a small-four-door sedan occupied by three black males. A vehicle matching that description with three black males was found at the Discount Zone gas station at 7840 Westbank Expressway parked in front of a gas pump. The vehicle was occupied by two subjects, and there was a black male with long dreadlocks who was pumping gas at the vehicle.

A deputy parked behind the -suspects’ vehicle. As soon as- Officer Berthelot pulled up, the male pumping gas turned and took off running, leaving the pump in the gas tank of the car. The suspects’ vehicle immediately took off, ripping the gas pump nozzle out of the car. The suspects led numerous police officers on a high-tspeedfi chase to St. Charles Parish, disregarding traffic signals and signs. When they got to Interstate 310 onramp in Luling, the back seat passenger pointed a gun out of the back glass in Deputy Bobby McNulty’s direction. Deputy McNulty then rammed the back of the suspects’ vehicle. The front seat passenger passed a handgun to the back seat passenger, and the back seat passenger subsequently threw two guns out of the window, which caused sparks to fly as the guns hit the ground.

Afterward, the underside of the suspects’ vehicle was engulfed in fire from the front tires to the back of the car. The suspects’ vehicle came to a stop, the doors opened, and the driver and passenger exited the vehicle. They attempted to run; however, after a struggle, they were subdued and apprehended. A semi-automatic handgun and a .357 revolver were recovered from Interstate 310 onramp.

Defendant was subsequently booked as a fugitive in St. Charles Parish, after which Deputy McNulty took defendant to University Hospital in New Orleans. After defendant was treated at the hospital for injuries he sustained in the altercation with police officers, he was transported to the Jefferson Parish Correctional Facility.

John Carroll, who was employed by the JPSO on April 24, 2010, then met with defendant and advised him of his rights. After defendant indicated he understood them and waived them, he gave a statement that was played for the jury.' In that statement, dated April 24, 2010 at 1:23 p.m., defendant said that the night before he was with Dickerson and “Black.” They were riding around when “Black” suggested they should rob someone. Defendant asserted that “Black” had a semi-automatic gun and Dickerson had a .357 revolver. Defendant denied having a gun. He stated that they first robbed an “old black woman.” “Black” |7went to the driver’s side door, and Dickerson went to the passenger’s side door. When they came back to the car, they had a phone and something else.

Defendant said in his statement that they next robbed a white man and woman in a truck parked in a driveway. He remembered Dickerson went up to the vehicle and said, “Give me the money.” He also remembered the woman saying that her child was in the vehicle. “Black” talked to the woman, and then took her brown purse and ran back to the car. After that, defendant was driving, Dickerson was in the back seat, and “Black” was in the passenger’s seat. They had the same guns they had the first time. They drove off in the car that Dickerson told him was a “rock rental.”

In his statement, defendant said they subsequently went to a gas station, and “Black” got out of the car and went inside the store to pay for the gas. Defendant saw the police so he pulled off and left “Black” because he did not want to go to jail. He fled through Westwego almost to Luling. During the chase, the officer rammed them in the back. Defendant gave Dickerson the gun from the front seat and told him to throw it out the window because defendant was on probation and not allowed to have a firearm.

Dickerson threw two guns out of the window. After that, defendant saw the back of the car on fire, so he stopped. Defendant put the car in park, opened the door, and he and Dickerson exited the vehicle and both were apprehended. Defendant was shown a photograph of Dickerson, and he positively Dickerson as the person who participated in the robberies with him that night.

During the investigation of the robberies, JPSO Detective David Canas learned that the dark green Ford Contour used during the robberies belonged to Janet Harris, who informed him that she loaned her vehicle to “Joe” for three pieces of crack cocaine. When the detective showed Ms. Harris a photograph of |sGlenn Dickerson, she positively identified him as the person she loaned the car to the day before the robberies.

After obtaining a search warrant, JPSO Detective Randy Thibodeaux searched the Ford Contour and recovered Ms. Moor-man’s purse along with some bills in her name. Detective Thibodeaux also recovered a weapon from the vehicle. He testified that in his report, he wrote that Ms. Jackson, the victim of the first armed robbery, was positive that defendant was not one of the two subjects who approached her vehicle window.

Deputy McNulty identified defendant in court as the front seat driver he assisted in pursuing on the night in question. He also testified that the backseat passenger was Glenn Dickerson.

Glenn Dickerson testified that he did not know defendant, and that he pled guilty to three counts of armed robbery because the State offered him 25 years. He then refused to answer any more questions and was found in contempt of court.

Since defendant was charged with possession of a firearm by a convicted felon, the State had to prove that defendant had a prior conviction. To that end, Aisha Prudhomme, an expert in the field of taking, analyzing, and identifying latent prints, obtained defendant’s fingerprints in court. She testified that defendant’s fingerprints matched the fingerprints found in the certified conviction for possession of cocaine.

In his first allegation of error, defendant argues that the trial judge erred by denying his motion for mistrial, which was based upon the mid-trial discovery that one of the jurors was acquainted with Jena Moorman, a victim, a fact that the juror communicated to his fellow jurors before he was excused.

The record reflects that after Ms. Moor-man testified, a break was taken. The trial judge then stated that he had just been informed by the bailiff that juror, James | aHinchey, knew Ms. Moorman. He further stated that they had a conference in chambers with Mr. Hinchey, and that he was going to have Mr. Hinchey testify regarding the situation. Mr. Hinchey subsequently testified that he knew Ms. Moor-man, one of the victims, from his stepdaughter, and that Ms. Moorman was at his house as recently as Christmas Day. Mr. Hinchey stated that he had not spoken with Ms. Moorman about the armed robbery and did not know anything about it.

When asked if he mentioned that fact in the jury room to other jurors, Mr. Hinchey replied that he only told them that he knew one of the victims. He said that he made a phone call from the jury room to his wife to find out Jena’s last name, because he was unsure of it. His wife, in turn, called her daughter, and her daughter called her back and told her the last name, and it matched. The trial judge asked Mr. Hinchey if the other jurors overheard his conversation, and Mr. Hin-chey responded that they were all in the same room, which was small. It was only afterward, Mr. Hinchey told the bailiff.

After hearing arguments of counsel, the trial judge denied the motion for mistrial, finding that the extent of which Mr. Hin-chey “told the other members of the jury that his knowledge of the victim I [the judge] don’t think that prejudices your client.” After the trial, defense counsel filed a motion for new trial, arguing that a new trial should be granted based on several grounds, one of which was that Mr. Hinchey knew the victim, had her over for Christmas, and then relayed that information to the jury in violation of the court’s order not to discuss the case. After hearing arguments of counsel, the trial judge denied the motion for new trial.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Davis, 08-165, p. 17 (La.App. 5 Cir. 7/29/08), 993 So.2d 295, 305, writs denied, 08-2188 (La.5/1/09), 6 So.3d 810, and 08-2200 (La.5/1/09), 6 So.3d 811. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. Id.

LSA-C.Cr.P. art. 775 provides, in pertinent part, “upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” The trial court has discretion to use the services of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. State v. Tatum, 09-1004, p. 17 (La.App. 5 Cir. 5/25/10), 40 So.3d 1082, 1092.

On review, we find that the trial judge did not abuse his discretion by denying defendant’s motion for mistrial. Initially, it is noted that no mandatory grounds for mistrial under Article 770 are presented here. The testimony at the hearing revealed that the juror, Mr. Hinchey, and the victim, Ms. Moorman, did not have a close relationship. In fact, the juror did not even realize he was acquainted with the victim until he called his wife to inquire as to the victim’s last name. Additionally, there is no evidence to show that the juror’s acquaintance with the victim gave the victim credibility or otherwise tainted the jury or prejudiced defendant. As the State noted in its brief, prospective jurors frequently hear other prospective jurors inform the parties that they are acquainted with prospective witnesses during jury selection. Moreover, the trial judge corrected any perceived prejudice by dismissing the juror from the jury and replacing him with an alternate. Compare State v. Adams, 30,815 (La.App. 2 Cir. 6/24/98), 715 So.2d 118, writ denied, 98-2031 (La.3/19/99), 739 So.2d 774, (the victim’s mother talked to a juror during the trial. The juror was dismissed from the jury and replaced with an | ^alternate to correct the perceived prejudice.); State v. Delore, 381 So.2d 455 (La.1980), (a personal friendship between a juror and a State witness. The evidence did not establish a close relationship between the two, and that the two had only met a few times at the home of mutual friends.)

We find no merit to this assignment of error.

In his second allegation of error, defendant argues that the trial judge erred by prohibiting him from questioning former sheriffs deputy John Carroll regarding alleged leverage the State held over him with respect to charges of distribution of cocaine and steroids, and domestic battery.

Prior to the hearing on the motion to suppress and the trial, the prosecutor requested a ruling regarding the scope of cross-examination as it pertained to John Carroll. The prosecutor noted that the Attorney General’s Office refused the drug charge, but that the domestic battery charge was still pending. She stated that Carroll was not being prosecuted by the District Attorney’s Office for the misdemeanor charges he was currently facing. The prosecutor argued that issues regarding Carroll’s arrests should not be permitted under LSA-C.E. art. 609. Defense counsel contended that under LSA-C.E. art. 607 D(l), he could question Carroll regarding bias, corruption, and interest and whether Carroll expected to receive a benefit in exchange for his testimony in connection with his pending charges. The trial judge disagreed with defense counsel and ruled that he would not be allowed to cross-examine Carroll regarding his drug or domestic battery charges. Before Carroll testified at trial, defense counsel made a continuing objection.

The Sixth Amendment to the United States Constitution guarantees the right of the accused in a criminal prosecution “to be confronted with the witnesses against him.” Additionally, the confrontation clause of the Louisiana Constitution | Tpdirectly affords the accused the right to “confront and cross-examine the witness against him ... ”, La. Const, art. I, Sec. 16.

The credibility of a witness may be attacked by any party, including the party calling him. LSA-C.E. art. 607 A. The right to impeach a witness for bias or interest is encompassed in the right of confrontation, and is specifically dictated by LSA-C.E. art. 607 D. State v. Hollins, 97-627, p. 5 (La.App. 5 Cir. 11/25/97), 704 So.2d 307, 309, writ denied, 99-507 (La.8/25/99), 747 So.2d 50. However, LSA-C.E. art. 608 B provides: “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 a crime as provided in Articles 609 and 609.1 or as constitutionally required.” LSA-C.E. art. 609.1 B provides that “[generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.”

Despite the general rule, the possibility that the prosecution may have leverage over a witness due to that witness’s pending criminal charges is recognized as a valid area of cross-examination. State v. Wiley, 10-811, p. 15 (LaApp. 5 Cir. 4/26/11), 68 So.3d 583, 592 (citing, State v. Rankin, 465 So.2d 679, 681 (La.1985), and State v. Brady, 381 So.2d 819, 822 (La.1980)). It is well-settled that a witness’s “hope or knowledge that he will receive leniency from the State is highly relevant to establish bias or interest.” Wiley, supra (citing, State v. Bowie, 00-3344, p. 10 (La.4/3/02), 813 So.2d 377, 385, cert, denied, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002)).

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less | ^probable than it would be without the evidence.” LSA-C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible. LSA-C.E. art. 402. However, relevant evidence may be excluded 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. LSA-C.E. art. 403. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230, p. 11 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La.10/3/03), 855 So.2d 308.

In State v. Gorman, 11-491 (La.App. 5 Cir. 2/14/12), 88 So.3d 590, defendant claimed the trial court erred by denying his request to question Detective John Carroll on his then-pending criminal charges. This Court found that the trial judge did not err by disallowing cross-examination of Carroll regarding his arrests, noting that the Attorney General’s Office was handling the screening and prosecution of Carroll’s case and, therefore, the District Attorney’s Office had no ability to affect the outcome of Carroll’s case. This Court further noted that the record did not indicate and defendant did not allege that Carroll was promised anything by the District Attorney’s Office or the Attorney General’s Office in return for his testimony. Also, this Court stated that the allegations against Carroll regarding possession of steroids and conspiracy to distribute cocaine were irrelevant to the case and, therefore, there was little probative evidentiary value to disclosing the nature of Carroll’s arrest. Lastly, this Court asserted that there was no evidence that Carroll acted inappropriately in the case. Gorman, 88 So.3d at 596-97. See also State v. Wiley, 10-811 (La.App. 5 Cir. 4/26/11), 68 So.3d 583.

|HIn the instant case, we find that the trial judge did not err by prohibiting the defense from cross-examining Carroll regarding his arrests and pending charges. As in Gorman, the prosecutor in the instant case represented that the District Attorney’s Office was not prosecuting Carroll on his misdemeanor charges, and that the misdemeanor charges were being handled by the Attorney General’s Office. The prosecutor in the instant ease also represented that the Attorney General’s Office had refused the charges regarding conspiracy to distribute cocaine and steroids. It is noted that the State represents in its brief that the misdemeanor charges were referred by the Attorney General to the District Attorney of the 21st Judicial District, and were subsequently rejected as well.

Also as in Gorman, the record in the instant case does not indicate and defendant does not allege that Carroll was promised anything by the District Attorney’s Office or the Attorney General’s Office in return for his testimony. Similar to Gorman, the allegations in the instant case against Carroll regarding conspiracy to distribute cocaine and domestic battery are not relevant to the instant case and, therefore, there would be little probative evidentiary value to disclosing the nature of Carroll’s arrests. Lastly, in the instant case as in Gorman, there is no evidence that Carroll acted inappropriately. Although Carroll took defendant’s statement, the record does not reveal and defendant does not allege any irregularities in that statement.

In light of the foregoing, we find that the trial judge did not err by prohibiting the defense from cross-examining Carroll regarding his arrests and pending charges. We find this allegation of error to be without merit.

In his third allegation of error, the defendant alleges that his 67-year enhanced sentence is constitutionally excessive, considering his youth, the non-violent nature of his predicate offenses, and the fact that no one suffered any | ^lasting physical harm during the armed robbery in the instant case. The State responds that the trial judge did not abuse his discretion in imposing a sentence one year greater than the mandatory minimum sentence required by the habitual offender law.

On June 27, 2011, a multiple bill hearing was held, after which the trial judge found defendant to be a third felony offender. The trial judge then denied defendant’s “Motion to Depart from Mandatory Minimum Sentence Pursuant to LSA-R.S. 15:529.1.”

Under LSA-C.Cr.P. art. 881.1, a defendant must either move for reconsideration of his sentence at the time of sentencing orally, or file a written motion to reconsider his sentence setting forth the specific grounds upon which the motion is based. The failure to state the specific grounds upon which the motion is based precludes the defendant from raising the issue on appeal. State v. Schieffler, 02-1047, p. 4 (La.App. 5 Cir. 2/25/03), 841 So.2d 1000, 1002, writ denied, 03-0741 (La.9/19/03), 853 So.2d 636. Such a failure limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Carter, 07-270, p. 10 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 203.

Defendant orally moved for reconsideration of sentence at the time of sentencing; however, he did not set forth specific grounds upon which the motion was based. Additionally, he did not file a written motion. As such, defendant is limited to a bare review of his sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Taylor, 06-839, p. 3 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La.6/15/07), 958 So.2d 1179. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless pain[lfiand suffering. Taylor, 06-839 at 3, 956 So.2d at 27. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. Id., (citing State v. Lobato, 603 So.2d 739, 751 (La.1992)). The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence absent a clear abuse of the trial court’s discretion. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Taylor, 06-839 at 3, 956 So.2d at 27; Pearson, 07-332 at 15-16, 975 So.2d at 656. The relevant question on appeal is whether the trial court abused its broad sentencing discretion, and not whether another sentence might have been more appropriate. Taylor, 06-839 at 3, 956 So.2d at 27; State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. Taylor, 06-839 at 4, 956 So.2d at 27 (citing State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 342, cert, denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001)). When a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce |17the sentence to one that would not be constitutionally excessive. Taylor, 06-839 at 4, 956 So.2d at 27-28.

However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. Taylor, 06-839 at 4, 956 So.2d at 28 (citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676). In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... 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.” Id.

Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in rare situations. Taylor, 06-839 at 4, 956 So.2d at 28. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Id., 06-889 at 4-5, 956 So.2d at 28. Compliance with sentencing guidelines pursuant to LSA-C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Jenkins, 07-586, p. 6 (La.App. 5 Cir. 1/22/08), 977 So.2d 142,148.

As a third felony offender with an underlying conviction for armed robbery and two prior convictions for possession of cocaine, defendant faced a habitual offender sentence that ranged from 66 to 198 years. LSA-R.S. 15:529.1 A(b)(i); R.S. 14:64. He was sentenced to 67 years, one year greater than the mandatory minimum sentence.

After a review of the record, we find that the 67-year enhanced sentence is not constitutionally excessive. Defendant has not shown that he is exceptional because of unusual circumstances or that his sentence is not meaningfully tailored 11sto his culpability as the offender, the gravity of the offense, and the circumstances of the case. The record shows that defendant committed a violent offense of armed robbery when he, along with Dickerson and another individual, robbed Ms. Moorman while her ten-year-old son was in the back seat. Afterward, defendant and the other perpetrators led police on a lengthy high speed car chase in their attempt to escape, possibly endangering the lives of people along the way. Defendant received a 67-year enhanced sentence; however, he could have received a 198-year sentence as a third felony offender. Additionally, defendant has an extensive criminal history and, in fact, he committed the instant offense two months after a previous conviction.

Defendant argues that his sentence is excessive because of his youth. He was nineteen at the time of the commission of the crime. However, this Court has held that a defendant’s age is insufficient justification for a downward departure. See State v. Lee, 09-37, p. 8 (La. App. 5 Cir. 5/12/09), 15 So.3d 229, 233-34. Defendant also argues that his sentence is excessive because of the non-violent nature of his predicate convictions. However, while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676.

Lastly, this Court has upheld 66-year sentences for third felony offenders with underlying convictions of armed robbery. See State v. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 568-71; State v. Otero, 09-468, pp. 7-10 (La.App. 5 Cir. 1/26/10), 31 So.3d 1125, 1130-32, writ denied, 10-489 (La.9/24/10), 45 So.3d 1072; and State v. Johnson, 03-620, pp. 14-15 (La.App. 5 Cir.10/28/03), 860 So.2d 180, 189-90, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849.

We find the trial judge did not abuse his discretion in sentencing. This allegation of error is without merit.

In addition, we have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and note the following errors.

On December 15, 2010, the State filed a “Notice of Intent to Invoke Firearm Sentencing Provision Under Louisiana Revised Statute 14:64.3.” LSA-R.S. 14:64.3 provides for an additional penalty of five years without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under LSA-R.S. 14:64 when the dangerous weapon used in the commission of an armed robbery is a firearm. Although the State filed this notice, the jury charges did not reference “armed robbery with a firearm.” The verdict sheet is not in the record and, therefore, it is unknown whether it referenced “armed robbery with a firearm.” At trial, however, the State presented evidence to show that guns were the only weapons used in the commission of the armed robbery.

The trial judge did not reference LSA-R.S. 14:64.3 during sentencing, nor did he state that he was imposing an additional period of incarceration when imposing defendant’s armed robbery sentence. Since the State intended to utilize the provisions of LSA-R.S. 14:64.3, it appears that the armed robbery sentence is indeterminate because the trial judge did not state whether the sentences included the firearm enhancement. Nevertheless, the sentence on the armed robbery conviction, Count 4, was vacated before defendant was resentenced as a multiple offender, and therefore any errors patent relating to this sentence are considered | ?nmoot. State v. Declouet, 09-1046, pp. 29-30 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, 108-09, writ denied, 10-2556 (La.4/8/11), 61 So.3d 681.

Second, the trial judge failed to impose the mandatory fine of not less than $1,000.00 nor more than $5,000.00 as required by LSA-R.S. 14:95.1 B on Count 2. This Court has the authority to correct an illegally lenient sentence. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. In State v. Horton, 09-250, p. 10 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376, this Court noted defendant’s indigent status and declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine. In the instant case, it is noted that defendant is indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine. Horton, supra.

Third, the record reflects that the trial judge did not advise defendant of his multiple offender rights, as required by LSA-R.S. 15:529.1, which provides that the trial court shall inform the 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, and shall require the offender to say whether the allegations are true. LSA-R.S. 15:529.1 implicitly requires that the trial court advise the defendant of his right to remain silent. Nevertheless, we find that this failure was harmless error, because defendant denied the allegations of the multiple bill, and because his multiple offender status was established by competent evidence offered by the State at the hearing, rather than by the admission of defendant. See State v. Muhammad, 03-419 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 35, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669.

| ¾1 Finally, we note that neither the transcript nor the commitment pertaining to the enhanced sentencing reflects that the trial judge advised defendant of the provisions of LSA-C.Cr.P. art. 930.8 at the time of the enhanced sentencing, although the transcript pertaining to the original sentencing reflects such an advisal. We therefore advise the defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

For the above discussed reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED

      . Glenn Dickerson was also charged in that same bill of information with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1 (Count 3), armed robbery of Gregory Barbier while armed with a firearm in violation of LSA-R.S. 14:64 (Count 6), and in Counts 4 and 5 along with Dorsey.

      . On October 27, 2011, this Court granted the State’s motion to consolidate ll-KA-745 and 1 l-KA-955.