author: WALTER J. ROTHSCHILD, Judge.

text:
    Robert M. BECNEL v. Kathleen Finney BECNEL.
    No. 10-CA-1011.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.
    Rehearing Denied July 18, 2011.

      Brenda B. Birner, Attorney at Law, La-Place, LA, for Plaintiff/Appellee.
    Robert C. Lowe, Marynell L. Piglia, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

12This is an appeal from judgments of the trial court partitioning the community property between Kathleen Finney Becnel and Robert M. Becnel. For the reasons stated more fully herein, we affirm in part, amend in part and reverse and vacate in part the trial court’s judgments.

Kathleen Finney Becnel and Robert M. Becnel were divorced by judgment rendered on October 30, 1995. Thereafter, on November 3, 1995, Ms. Becnel filed a Petition for Partition of the Community Property. In December of 1995, she also sought and obtained injunctive relief prohibiting Mr. Becnel from alienating, transferring or disposing of any assets of the community pending the partition thereof. A sworn descriptive list of assets and liabilities of the community was filed into the record on September 29, 2000. In 2005, Mr. and Ms. Becnel each filed into these proceedings a separate supplemental descriptive list. In May of 2005, the parties executed a consent judgment for a partial partition of the property which was signed by the trial court on July 5, 2005. In 2007 and again in 2009, Ms. Becnel filed supplements to the descriptive list of assets and liabilities of the |scommunity. The record also contains a Joint Descriptive List which was used at trial in the partition.

Trial of the community property partition was held on January 8-9, 2009. The matter was taken under advisement by the trial court and judgment was rendered on June 10, 2009, determining the claims of the parties and ordering both parties to file amended proposed allocations of community assets based on these findings. Ms. Becnel moved for a partial new trial which was denied by the trial court on August 18, 2009. On August 31, 2009, the trial court rendered judgment that the community be divided in accordance with the proposed allocation of community assets submitted by the parties. Ms. Becnel was granted a devolutive appeal from these judgments.

Ms. Becnel assigns the following errors:

1. The trial court erred in denying her claim for damages in connection with Mr. Becnel’s sale of Hibernia Bank stock in violation of the injunction against alienation of community property;
2. The trial court erred in denying Ms. Becnel’s claim for dividends on the Hibernia Bank stock which were received by Mr. Becnel after termination of the community and those dividends which would have been received if the stock had not been improperly sold;
3. The trial court erred in denying Ms. Becnel’s claim for prejudgment interest in connection with Mr. Bec-nel’s sale of Hibernia Bank stock and in connection with legal fees and costs received by Mr. Becnel after the community terminated;
4. The trial court erred in holding the partition proceedings open regarding a $100,000 community liability owed to Mr. Becnel’s brother; and
5. The trial court erred in denying Ms. Becnel’s motion for partial new trial.

14Sale of Hibernia Bank Stock

Testimony at trial indicated that during the community, Robert M. Becnel owned shares of stock in Bank of St. John, which later merged with Hibernia Bank. The testimony and evidence indicated that as of July 1, 1995, the Becnels held 27,110 shares of Hibernia Bank stock which emanated from the original Bank of St. John stock. The testimony further indicated that on February 18, 2000, after the termination of the community, Mr. Becnel sold the Hibernia Bank stock and received two payments totaling $243,903.00. Further, the evidence shows that in November of 2005, Hibernia Bank merged with Capital One Bank.

In the Joint Descriptive List, Ms. Becnel made a claim for damages in connection with losses incurred by Mr. Becnel’s February 2000 sale of the 27,110 shares of Hibernia Bank stock. The amount of the claim was for $523,358.00 or one-half of $1,046,746, which would have been the amount of the value of the Capital One stock including legal interest had Mr. Bec-nel held the stock on the date of trial.

In its judgment of June 10, 2009, the trial court resolved Ms. Becnel’s claim as follows:

The evidence does not, in this Court’s view, show mismanagement by Mr. Bec-nel. Hindsight is always 20-20, and the management of a community as large as this requires decisions which may not always be successful, but nevertheless may be reasonable given the time and circumstances of the event. Handling assets such as stocks may be difficult with no guarantees offered.
The claims of losses by Mrs. Becnel through the calculations of her accountant are speculative and not acceptable by this Court.
The Court will value these shares of stock at the price for which they were sold, namely, $243,903.82, each party entitled to 50% thereof.

|sBy this appeal, Ms. Becnel argues that the trial court’s findings regarding her reimbursement claim are erroneous. In support of this claim, Ms. Becnel relies on La. C.C. art. 2369.3 which provides:

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.

In refusing Ms. Becnel’s claim, the trial court found that Mr. Becnel’s actions in selling the Hibernia Bank stock did not amount to mismanagement which resulted in any losses to the community. Ms. Bec-nel now argues that the trial court misapplied La. C.C. art. 2369.3 and erroneously failed to find that Mr. Becnel breached his duty to preserve the assets of the community. Further, Ms. Becnel argues that Mr. Becnel violated an injunction which enjoined alienation of the community property and that she is entitled to damages pursuant to La. C.C.P. art. 3611. Ms. Becnel argues that these are legal errors which require this Court to conduct a de novo review of the record.

We fail to find legal error in the application of the pertinent statute in this case. Rather, we find that the trial court made a factual finding that Mr. Becnel’s actions did not violate the statutory provisions. Accordingly, we find no basis for a de novo review.

This Court held in Saacks v. Saacks, 05-365 (La.App. 5 Cir. 9/26/06), 942 So.2d 1130, 1134-36:

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. The trial judge is |fiafforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99. A court of appeal may not set aside a trial court’s finding of fact in absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989); Madere v. Madere, 93-610 (La.App. 5 Cir. 2/9/94), 632 So.2d 1180.
La. C.C. art. 2369.3, comment (a) notes that this article imposes a higher standard of care in managing and maintaining former community property than the standard imposed during the marriage. The reason for the higher standard of care is that, after termination of the community property regime, the presumption that a spouse will act in the best interest of the community no longer exists. Knighten v. Knighten, 00-1662 (La.App. 1 Cir. 09/28/01), 809 So.2d 324, writ denied, 01-2846 (La.01/04/02), 805 So.2d 207.
The spouse alleging improper management bears the burden of proving that the former spouse failed to manage and prudently preserve the former community property prior to partition. Anding v. Anding, 32,084 (La.App. 2 Cir. 8/18/99), 740 So.2d 253; Drobnak v. Drobnak, 97-0021 (La.App. 1 Cir. 2/20/98), 708 So.2d 1162. La.C.C. art. 2369.3, comment (c) provides that a spouse who asserts a claim under this article is required to prove that the other spouse failed to act prudently in a manner consistent with the mode of use of the property under his control immediately prior to termination of the regime, not simply that he had former community property under his control. Bad faith is not required under La. C.C. art. 2369.3 because the spouse is “answerable for any damage caused by his fault, default or neglect.” Gibson v. Gibson, 96-1472 (La.App. 3 Cir. 4/02/97), 692 So.2d 708, 710.

The question for our review is whether Ms. Becnel met her burden of proving that Mr. Becnel failed to preserve and manage prudently the Hibernia stock prior to the partition. To meet this burden, Ms. Bec-nel submitted the testimony of Michael Kingsberry, a CPA who had been 17accepted as an expert by the trial court. Mr. Kingsberry testified that Mr. Becnel sold 27,110 shares of Hibernia Bank stock in violation of an injunction in February of 2000. Mr. Kingsberry also testified that if Mr. Becnel had not sold the stock and had held it through the bank’s merger with Capital One Bank, the stock would have been worth $1,046,715.00 at the time of trial including legal interest. Mr. Kings-berry testified that half of this amount, or $523,358.00, is the basis for the reimbursement claim made by Ms. Becnel in the Joint Descriptive List. Mr. Kingsberry also testified regarding two alternative claims made by Ms. Becnel regarding the sale of this stock. First, Mr. Kingsberry calculated legal interest through 2008 on the amount received by Mr. Becnel from the stock sale in 2000, $243,904.00. This interest amounted to $151,392.65, for a total of $395,296.65, and Ms. Becnel’s half would amount to $197,649.00. The second alternative claim amounted to $169,157.50, which according to Mr. Kingsberry represented one-half of the amount of the value of the stock had Mr. Becnel held it on the date of trial.

Although the testimony at trial indicates that the value of the Hibernia stock increased after the bank’s merger with Capital One, we fail to find that this fact supports a finding that Mr. Becnel’s actions in selling the stock amounts to mismanagement. As the trial court stated, the increase in value became evident in hindsight, and there is nothing in the record to indicate that Mr. Becnel should have known that the stock value would increase. Further, Ms. Becnel claims that Mr. Bec-nel’s sale of the stock amounted to a violation of La. C.C. art. 2369.3 in failing to “preserve” the stock under his control. However, the article does not prohibit sale of former community property. The full text of the article requires the former spouse to preserve |sthe property “in a manner consistent with the mode of use of that property immediately prior to termination of the community regime.” See, La. C.C. art. 2369.3, comment (c). Our review of the record fails to indicate that Ms. Becnel met her burden of proving her entitlement to damages.

Ms. Becnel also argues that her reimbursement claim should have been granted as damages for Mr. Becnel’s violation of the injunction issued in this case prohibiting him from alienating the former community property. La. C.C. P. art. 3611 provides:

Art. 3611. Penalty for disobedience; damages
Disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court. The court may cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.

The record in this case indicates that an injunction was issued by the trial court in December of 1995. Ms. Becnel argues that this injunction was still in effect in 2000 when the stock was sold by Mr. Becnel, citing Hendrick v. Hendrick, 470 So.2d 449 (La.App. 1 Cir.1985). While we agree that injunctive relief remains as long as the necessity for it continues, we fail to find Ms. Becnel entitled to recover damages as part of the partition of the community property.

Although the Hibernia stock was sold by Mr. Becnel in February of 2000, Ms. Bec-nel failed to move for contempt or to request the trial court impose appropriate damages for this alleged violation of the injunction. For various reasons, this claim for damages was not made prior to these partition proceedings, almost 10 years after the stock was sold. At this point in the ^proceedings, we fail to find that Ms. Bec-nel’s current reimbursement claim to be appropriate damages for violation of the injunction.

The damages sustained by Mr. Becnel’s share of the stock are too speculative to support an award of damages in this case. We therefore find no error of the trial court in denying Ms. Becnel’s claim for reimbursement based on the sale of the Hibernia Bank stock.

Dividends

Ms. Becnel next claims that she is owed reimbursement for dividends paid on the Hibernia Bank stock between the termination of the community and the date the stock was sold by Mr. Becnel. We agree.

At trial, Mr. Kingsberry testified that Ms. Becnel’s claim for loss of dividends could be divided into two components. First, Mr. Kingsberry calculated the amount of dividends that would have been paid on the Hibernia stock between 2000 and 2005 had Mr. Becnel held the stock during this period prior to the bank’s merger with Capital One. This claim was for $45,905.54, which Mr. Kingsberry stated was one-half of the total dividends, or $91,905.94, the amount that would have been paid during the period. Secondly, Mr. Kingsberry calculated the amount of dividends actually paid on the stock after the termination of the community but prior to the time Mr. Becnel sold the Hibernia stock. Ms. Becnel claimed $21,552.45, or one-half of the actual dividend payment of $43,104.90.

The record contains an exhibit admitted during the testimony of Mr. Kingsberry without objection by Mr. Becnel. This document lists the dividends which were paid on the 27,110 shares held by Mr. Becnel between July 28, 1995 and November 1, 1999. At trial, Mr. Becnel did not dispute that he received dividends on the Hibernia Bank stock in his possession | inbetween the termination of the community and the subsequent sale of the stock. There is also no dispute that as fruits of the community property, Ms. Becnel is owner of one-half of these payments. La. C.C. art. 2369.2.

The Joint Descriptive List contained in the record fails to account for this asset, although Ms. Becnel’s claim for reimbursement for one-half of the actual dividend payment of $43,104.90 is clearly supported by testimony and evidence in the record. However, the dividends which would have been paid between 2000 and 2005 had the stock not been sold are speculative and not clearly supported by the record. We therefore find that the trial court erred in denying Ms. Becnel’s claim for reimbursement in the amount of $21,552.45, and the trial court’s judgment of June 10, 2009 is hereby amended to include this item.

PreJudgment Interest

Ms. Becnel contends that the trial court erred in denying her claim for prejudgment interest on the proceeds from the sale of the Hibernia Bank stock and on community legal fees and costs received by Mr. Becnel after the community terminated. Ms. Becnel argues that the trial court should have awarded Ms. Becnel interest on the proceeds from the sale of the Hibernia Bank stock from the date of sale, which the uncontroverted testimony of Ms. Becnel’s expert accountant, Michael Kings-berry, calculated to be $197,648.32 in interest. Additionally, Ms.-Becnel should be awarded interest on the community legal fees and costs recovered by Mr. Becnel following termination of the community, which Mr. Kingsberry calculated to be $507,553 in interest.

|nIn denying her claim for pre-judgment interest, Ms. Becnel contends that the trial court erred on relying on the Supreme Court’s decision in Reinhardt v. Reinhardt, 99-723 (La.10/19/1999), 748 So.2d 423 as that decision only applies to equalizing payments which arise upon partition of the community. Ms. Becnel contends the facts in Reinhardt are distinguishable from the facts of the present case. In the present case, Ms. Becnel argues that the assets were not valued in this case at the time of the partition, but rather at the time the assets became available to Mr. Becnel.

We find the decision in Reinhardt to be controlling in the present case. In that case, the Supreme Court found that reimbursement claims are among the types of claims that arise from the legal regime and which are properly asserted in a community property partition. Reinhardt v. Reinhardt, 748 So.2d at 425. Although the funds and legal fees claimed by Ms. Becnel may have been received by Mr. Becnel prior to the trial on the partition, they were not classified as community property subject to a reimbursement claim until the date of judgment in this case. Thus, according to the rationale set forth in Reinhardt, pre-judgment interest is not applicable. The ruling of the trial court on this issue is not erroneous.

Holding Partition Proceedings Open

Ms. Becnel next contends that the trial court erred in holding open the proceedings with regard to Mr. Becnel’s claim that he has a $100,000 liability in the form of a debt owed to his brother, Mr. Danny Becnel. This liability is listed on the Joint Descriptive List as “Daniel E. Becnel, for services provided in the breast implant cases.”

Robert Becnel testified at trial that he owed $100,000 to his brother for legal work done in personal injury claims against Dow Corning. 112However, the testimony indicated that Dow Corning was involved in bankruptcy proceedings, and the legal fees for these claims had not yet been collected. Mr. Becnel testified that the amount of this debt was set in 1998 by verbal communication with his brother. There was no writing evidencing the obligation. Ms. Becnel contends that as Mr. Becnel was unable to prove the existence of this claim at the trial of this matter, the claim should have been denied.

In its judgment of June 10, 2009, the trial court found that it was unclear from the testimony and evidence presented whether this was a valid community debt and whether it has been paid, or was still outstanding. However, the trial court held the matter open for a subsequent determination of the existence and status of the alleged debt.

We find the trial court correctly found that the record failed to evidence a valid community debt owed by Mr. Becnel to his brother. According to Mr. Becnel’s testimony, the debt was incurred in 1998 or shortly before, which in any event is several years after the termination of the community. Further, the debt was only evidenced by the testimony of Mr. Becnel, and our review of the record indicates that Mr. Becnel failed to meet his burden of proving the liability. In the settlement of the community and the partitioning of community property, the court must value the assets, determine the liabilities, adjudicate the claims of the parties, and then divide the community assets and liabilities between the parties. La. R.S. 9:2801(A).

As the evidence presented at trial failed to support a community liability, the claim should have been denied. There is no legal basis for holding this matter open for the liability to be established at a later date. 1 ^Accordingly, we hereby vacate the trial court’s decision to hold this matter open for further evidence of the debt. Mr. Becnel’s listing of the liability is denied.

Motion for Partial New Trial

Ms Becnel moved for a partial new trial following the trial court’s judgment on June 10, 2009 regarding the contested issues between the parties at the partition trial. Ms. Becnel argued that the trial court judgment was contrary to law and evidence presented at trial. The arguments made by Ms. Becnel in the motion for new trial are substantially similar to the arguments advanced by this appeal. We fail to find that the trial court’s findings as stated in its June 10, 2009 judgment are contrary to law or evidence. Further, after review of the entire record in this case, including all pleadings and the transcripts of partition trial, we find no good ground for the granting of a new trial. Accordingly, we find no error in the trial court’s ruling denying Ms. Becnels’ motion for partial new trial.

Decree

For the reasons assigned herein, we hereby reverse that portion of the June 10, 2009 judgment which denies Ms. Becnel’s claim for reimbursement as stated in Item 33 of the Joint Descriptive List: dividends earned on community Hibernia Bank stock after the termination of the community to the date of the sale of this stock (dividends received by Robert M. Becnel). We hereby grant this claim for reimbursement and amend the Allocation of Assets and Liabilities to allocate an additional $21,552.5 to Kathleen Finney Becnel. We also vacate that portion of the trial court’s June 10, 2009 judgment which holds open the proceedings with regard to the $100,000 liability to Daniel E. Becnel, Jr. Mr. Becnel’s claim of that liability is | thereby denied. In all other respects, the judgments of the trial court are affirmed. Each party shall bear its own costs of this appeal.

AFFIRMED IN PART; AMENDED IN PART; REVERSED AND VACATED IN PART

      . The trial court determined that this stock was community property, and this finding is not the subject of this appeal.


source: Caselaw Access Project

author: FREDERICKS HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Steve HAYES, Jr.
    No. 10-KA-685.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Donaldsonville, LA, for Plaintiff/Ap-pellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKS HOMBERG WICKER, Judge.

| gin this criminal matter, Stephen Hayes, Jr., defendant/appellant, appeals his second degree murder jury trial conviction and his life sentence at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, Mr. Hayes raises two assignments: (1) The trial court erred in denying his motion for mistrial when a state witness/detective mentioned that the defendant had a couple of arrests. (2) There is insufficient evidence to support the conviction. For the reasons that follow, we affirm.

Facts

On November 7, 2005 at 11:00 PM, Shanikra Striggs died as a result of a single gunshot wound to the head. Five hours later, Mr. Hayes gave a statement to the police and revealed the gun’s location. Detective Juliet Zeringue testified that the bullet taken out of Ms. Striggs’s head matched the gun and the casing that they found at the scene. Mr. Hayes was arrested and subsequently charged by indictment with second degree murder, La.R.S. 14:30.1. Mr. Hayes, who admitted Rhe was present when the gun was fired, maintained that the shooting was accidental and unintentional.

At the time, Ms. Striggs, who was also known as “Neeky,” and Mr. Hayes, who was also known as “Beware,” had resided in the home of Ms. Striggs’s mother, Joyce Harris, for nine months. Ms. Striggs, however, recently broke up amicably with Mr. Hayes and he was expected to leave by the end of November.

On the night of the shooting, Ms. Harris, Ms. Striggs, and Mr. Hayes were in the home shortly before the shooting occurred. According to Ms. Harris, she never saw the couple argue that night. She also never saw Mr. Hayes strike her daughter. There were, however, reports of jealousy on Mr. Hayes’s part, which Mr. Hayes disputed.

Mr. Hayes also disputed Brian Larva-dain’s testimony that two to four weeks before the shooting, Mr. Hayes spoke of killing Ms. Striggs. Mr. Larvadain, Mr. Hayes’s long-time friend, testified that Mr. Hayes told him that he and Ms. Striggs had been fighting. Mr. Hayes joked about killing Ms. Striggs. Mr. Larvadain explained that Mr. Hayes said that he “got a mind to kill his old lady” and he was “gonna kill his old lady.” After Mr. Hayes told him about killing his girlfriend, Mr. Larvadain told Mr. Hayes “you know you clowning.” And, Mr. Hayes started laughing. Mr. Larvadain thought Mr. Hayes was joking although Mr. Larvadain was concerned about that statement. Mr. Lar-vadain told the police that he did not take the comment seriously because they were clowning around and joking.

Thereafter, on the night of the shooting, two witnesses heard the events that occurred immediately before the incident— Ms. Harris and Michael Williams (also known as Michael Benberry, “Black,” and Niafeece Jamaal Bey).

^According to Ms. Harris, she heard the gunshot, ran outside, and saw her daughter slumped in the driver’s seat of her vehicle with her legs outside the vehicle. She saw Mr. Hayes run quickly from the scene without asking her to call an ambulance. Although Mr. Hayes admitted that he panicked and left the scene, he stated that he immediately attempted to get help from an aunt who lived nearby. He said that the aunt, however, did not respond to his knocking at the door. Also, he denied running. Mr. Hayes testified that he could not run because of an injury. He explained that his actions evidenced no intent to kill and run away because he did not bring money, identification, or a phone with him when he went outside.

According to Mr. Williams — who unlike Mr. Hayes had previous convictions — Mr. Williams spoke to Ms. Striggs several times on the telephone that night and immediately before the shooting. Detective Juliet Zeringue testified that telephone records verified those calls. She said that the last call from the Striggs’s number to Mr. Williams was a four minute call at 9:58 PM, only six or seven minutes before the police were dispatched.

The pertinent events leading up to the final call began after Ms. Striggs returned home from her work as a security guard. After her return, Ms. Striggs and Mr. Hayes amicably went for a walk in a local park.

According to Ms. Harris, upon their return, Ms. Striggs took the cordless house phone in the bathroom with her. Mr. Hayes asked to use the telephone and she allowed him to use it momentarily.

Different versions of that evening’s telephone conversations and their effect on Mr. Hayes were presented at trial.

Mr. Williams, who lived out of town with his fiancée, testified that he and Ms. Striggs were friends who regularly spoke on the telephone. That night, Ms. Striggs called him around 7:00 PM and they spoke for about an hour. Twenty | Sminutes later, she called again and they spoke for another hour or so. Two minutes later, she called again. At that point Mr. Hayes wanted to speak to Ms. Striggs. Mr. Williams agreed to end the conversation. He heard Mr. Hayes say: “Get off the f- - - phone. You on the phone with him again?” Two minutes after ending the conversation, Ms. Striggs called Mr. Williams and told him that she would continue the conversation in her car.

In contrast, Mr. Hayes testified there was no animosity between himself and Ms. Striggs that evening. He admitted that he asked to use the telephone when Ms. Striggs was in the bathroom but he denied knowing that she was actually using the phone, being upset, asking who was on the phone with her, and asking Ms. Striggs to get off the phone. After he used the phone, he returned it to her. Mr. Hayes testified that he did not know Mr. Williams. He stated that Mr. Williams lied when he said he heard Mr. Hayes tell the Ms. Striggs to get off the f— phone.

Ms. Harris and Mr. Hayes presented somewhat different accounts of the events that transpired after the bathroom exchange.

Ms. Harris testified that upon completing her bath, Ms. Striggs approached Mr. Hayes, spoke to him, and then went outside with the telephone. Ms. Striggs told her mother that she was going to her car. Ms. Harris was under the impression that her daughter wanted to have a private conversation. Ms. Harris stated that she then observed Mr. Hayes briefly walk outside and reenter. She testified that Mr. Hayes did not appear upset at the time. Next, Mr. Hayes went outside at which time Ms. Hayes heard her daughter yell the defendant’s nickname, “Beware.” Then Ms. Harris heard a gunshot. At this point, Ms. Harris ran to the door and saw Mr. Hayes leave the scene.

Mr. Hayes denied that Ms. Striggs screamed his name. However, Mr. Williams, like Ms. Harris, also testified that he heard Ms. Striggs scream “Beware” Rbefore the phone went dead. According to Mr. Williams, he heard the car door open and close, making a familiar dinging sound. Then, he could hear the dinging sound when the door opened once more. Approximately three minutes after he first heard the sound, he heard Ms. Striggs scream: “No, Beware, no, no, no, no, no.” Then, the phone went dead.

At trial as well as in his statement to the police (after receiving Miranda warnings and waiving his Miranda rights), Mr. Hayes stated that he went outside to place a gun in the car’s glove compartment out of concern for the safety of children who had recently been playing in the gun’s vicinity. The gun belonged to Ms. Harris’s husband. According to Ms. Harris, approximately three months before the incident, she asked Mr. Hayes to place the gun — which at that time was in a drawer— in a safe place. She stated that the gun and the clip were separated and the gun was not loaded. Mr. Hayes, however, testified that the gun was together, not separated. Ms. Harris stated that Mr. Hayes told her that he placed the gun in a closet. She never suggested to him that it would be safer to keep the gun in the car rather than in the residence.

Moreover, Ms. Harris testified that at no point did Mr. Hayes tell her that he was going outside to put the gun in the car. She testified that she did not see the gun that night. Mr. Hayes admitted that he walked past Ms. Harris with the gun under his shirt. He denied hiding the gun; he merely wanted to keep the gun out of sight of a youngster in the household.

Mr. Hayes also testified that Ms. Striggs told him to place the gun in storage. So, he intended to place it in the glove compartment and from there place it in a storage facility.

[ ./According to Mr. Hayes, when attempting to place it in the glove compartment, he went to the driver’s side because there was oil on the ground on the passenger’s side and he had showered and worn slippers. He did not know that Ms. Striggs was in the car until he found it locked and knocked on the door. Also, he could not see her at first because of the tinted windows and the fact that it was dark outside. He expected the car door to be unlocked because he left it that way after they returned from the park.

Additionally, in his statement and at trial, Mr. Hayes stated that both the gun’s safety and clip did not work well — the clip was always slipping out. Furthermore, in his statement, he recounted that he thought there were two or three bullets in the gun although the gun was never fully loaded. At trial, however, he testified that he did not know whether there was a bullet in the chamber because he never checked the gun. In his statement, Mr. Hayes agreed with Detective Zeringue that for safety reasons, he should have unloaded the gun and separated the clip from the gun.

According to Mr. Hayes the gun accidentally discharged. He explained that Ms. Striggs, who was sitting in the locked car while on the telephone, “freaked out,” and grabbed the barrel when she saw the gun. When he initially pulled the gun out to tell his girlfriend to place it in the glove compartment, she “banged” him and “it ejected.” The gun went off. He did not know whether Ms. Striggs’s hand hit the trigger when she banged him. He explained that Ms. Striggs was a large woman, who weighed 250 to 260 pounds in comparison to Mr. Hayes, who weighed only 160 pounds. At trial, he stated that because of the degree of force Ms. Striggs exerted, his arm hit the inside of the door panel, injuring his right arm.

Detective Zeringue testified that the keys were in the ignition when she arrived at the scene. She stated that she had two different accounts as to whether |sthe door was locked before the shooting. On one hand, Mr. Hayes said that the door was locked. According to Mr. Williams, however, the door was not locked; Mr. Williams told the detective that he heard Ms. Striggs open the car door and he heard the dinging sound. Detective Ze-ringue recounted her experience with cars and testified that the key must be in the ignition in order for the dinging sound to occur, thus appearing to dispute Mr. Hayes’s testimony that when he encountered Ms. Striggs, the car’s door was locked. But, Detective Zeringue acknowledged that Mr. Williams was not an eyewitness and therefore would not be in a position to see whether or not the key was in the ignition at the time that he heard the sound.

Shortly after the shooting, police officers searched the nearby area for Mr. Hayes. Then about five hours later, Mr. Hayes, who was shoeless, approached a patrolling police unit as he lifted his shirt. Mr. Hayes explained that he raised his shirt in order to show the police that he had nothing on him. Mr. Hayes cooperated with the officers and after being advised of his Miranda rights, informed them that he had hidden the gun under a shed where he had been hiding. After taking Mr. Hayes to the unit, the officers took the precaution of moving to a safer location given that Mr. Hayes was near the scene and the victim’s family was nearby.

According to Mr. Hayes, the nearby presence along with a voiced threat to kill him, prompted him to hide. In addition, he did not want to confront Ms. Striggs’s mother.

In addition to testimony regarding the shooting, the state presented forensic evidence. That evidence established that Ms. Striggs died as a result of a single close contact gunshot wound to the head. And, Ms. Striggs had no defensive injuries although she had a broken fingernail.

| ^According to Dr. James C. Traylor, the expert in forensic pathology who provided the autopsy report, the gun was one inch or closer to the wound. He stated that if the victim had grabbed the gun while it discharged, he would have expected to see soot or possibly blood on her hand, which he did not see. But, he acknowledged that soot could be present but undetected by him. He also agreed with defense counsel that the gun was close enough to her body that Ms. Striggs could have touched it with her hand.

Defense counsel pursued a line of questioning regarding whether the shooting was an accident. At one point, Dr. Traylor said: “What the h — is a muzzle end of the weapon doing next to somebody’s head that’s an accident?” Dr. Traylor testified that based on his experience with over 3,000 autopsies — with the vast majority being gunshot wounds — Dr. Traylor had never seen a gun accidently discharged in that manner. Dr. Traylor, however, stated that although he did not think it was possible, he was not testifying that it was not possible that an accident occurred.

Jim Churchman, an expert in forensic science, testified that he actually fired the gun three times in the laboratory. He explained that the weapon was functional although it had a missing spring that could cause the magazine to slip out. Mr. Churchman stated that someone would sustain an injury, such as a hole or abrasion, from contact with the slide, if at the time the gun was fired the person had a hand wrapped around the barrel. The injury would occur when the violent pull on the slide snagged a hand as the cartridge case ejected.

Detective Zeringue agreed that the gun had a slide. She explained that if someone grabbed the barrel of the gun it would do one of two things. Either the gun would not fire because the person would be able to hold the slide on the gun, or if the casing ejected, it would cut the hand due to gun’s force. The only thing 110that she noted on the victim’s hands was a broken nail. There was no cut on the inside of her hand.

Mr. Churchman also testified to a weakness in this type weapon; it could accidentally discharge if dropped on a hard surface. But, in his opinion, the impact of the gun being brushed or banged while it was in someone’s hand was not the type of force that he would expect to cause an accidental discharge. He explained that in order for a semi-automatic single-action weapon like this one to fire, the trigger pull required pressure in the range of five to seven pounds.

In addition to evidence regarding the gun, the state presented DNA evidence. Jasmine Thomas, an expert in forensic DNA analysis, examined DNA profiles from swabs taken from the gun (the handle, trigger and barrel), the door handle, Ms. Striggs, and Mr. Hayes. She testified that she did not get any DNA on the trigger. The DNA profiles on the barrel and the handle of the gun were consistent with the DNA profile obtained from Mr. Hayes. There was no DNA on the gun (including the barrel) from the victim. Ms. Thomas testified that she would have expected to see the victim’s DNA if it were present. She stated, however, that the absence of the victim’s DNA could possibly be explained by two factors: (1) the gun was handled by different people and the machine might pick up only the more dominant person; or (2) the victim might not have left enough DNA there.

Furthermore, gunshot residue tests were performed. Detective Zeringue performed gunshot residue tests of Mr. Hayes’s hands. On his right hand, the test came back positive. She only tested Ms. Striggs’s right hand because the family told her that the victim was right-handed. The results were negative. She stated it was a mistake on her part that she did not have another instant shooter kit to do the |nleft hand. Therefore, she could not determine how close the victim’s left hand was to the gun when it went off.

According to Mr. Hayes, Ms. Striggs had contact with the gun. She grabbed the gun barrel, and swung at him, causing his arm that held the gun to hit the inside of the doorframe. He testified that as a result, his wrist was swollen. He stated that when he arrived at the police station, Deputy Percy Louque gave him Ziploc ice packs for a swollen wrist.

Deputy Percy Louque testified that after Mr. Hayes was in the St. James Parish Jail a couple of days, he gave Mr. Hayes ice to put on his hand. He stated that Mr. Hayes appeared to be sincere when he said that his hand was hurting.

In contrast to Deputy Louque, who did not see Mr. Hayes when he first arrived at the jail, three officers who saw Mr. Hayes shortly after the shooting testified that Mr. Hayes did not complain of an injury.

One of those officers, Detective Ze-ringue, testified that she interviewed Mr. Hayes about eight hours before he was booked. Although she never asked Mr. Hayes if he was injured, Mr. Hayes did not appear to be in any type of physical distress and he did not complain. Moreover, Mr. Hayes showed no signs of injury when she examined his wrist and the back of his hand while performing the gunshot residue test on Mr. Hayes’s hands. If Mr. Hayes had asked for ice, she would have noted that and immediately informed the jailer.

After weighing the evidence presented, the jury found Mr. Hayes guilty as charged.

Sufficiency

On appeal, Mr. Hayes challenges the sufficiency of the evidence used to convict him of second degree murder. More specifically, he contends that the evidence presented at trial failed to demonstrate that he had the specific intent to 112harm Ms. Striggs. He asserts that his actions amounted to no more than a tragic accident or negligent homicide — a case of good intentions but poor judgment.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the Jackson v. Virginia standard enunciated by the United States Supreme Court. State v. Captville, 448 So.2d 676, 678 (La. 1984). Where circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 mandates that: “Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. State v. Porretto, 468 So.2d 1142, 1146 (La.1985) citing State v. Wright, 445 So.2d 1198 (La.1984). The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Kestle, 07-1573, p. 5 (La.12/2/08), 996 So.2d 275, 278 (citation omitted).

Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm, or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies even though he has no intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(A); State v. Bauman, 08-1169, p. 9 (La.App. 5 Cir. 5/12/09), 15 So.3d 177, 184, unit denied, 09-1533 (La.5/23/10), 34 So.3d 300. In the instant case, the state proceeded under the first theory of second degree murder: specific intent.

11sSpecific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). The determination of specific criminal intent is a question of fact. Specific intent may be inferred from the circumstances surrounding the offense and from the defendant’s action, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Lawson, 08-123, p. 6 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 522 (citations omitted).

On appeal, and in the proceedings below, Mr. Hayes asserted that the gun accidentally discharged as a result of Ms. Striggs’s banging his arm and grabbing the barrel of the gun. Presented with Mr. Hayes’s conflicting testimony regarding the events that occurred before and after the shooting, the jury made a credibility determination and rejected the defendant’s hypothesis that the shooting was accidental. We find that jurors did not unreasonably or irrationally reject the defense’s construction of the evening’s events.

Ms. Harris’s and Mr. Williams’s testimony together with that of Mr. Larvadain supported a reasonable inference that the shooting was not accidental. Ms. Harris and Mr. Williams, although not eyewitnesses to the actual shooting, each testified that they heard Ms. Striggs yell Mr. Hayes’s name shortly before the shooting. In particular, Mr. Williams, whose telephone conversations were corroborated by telephone records, testified that just before the phone went dead, he heard Ms. Striggs screaming Mr. Hayes’s name while yelling “no”. Mr. Larvadain testified that a few weeks before the shooting Mr. Hayes told Mr. Larvadain that he and Ms. Striggs had been fighting and he wanted to kill her. Although Mr. Larvadain thought Mr. Hayes was joking, nevertheless he was concerned about the statement. The jury also heard testimony from Mr. 114Churchman that this type of weapon did not accidentally discharge unless it was dropped.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of La.R.S. 14:80.1 beyond a reasonable doubt. Thus, this assignment is without merit.

Mistrial/Instruction/Closing Argument

Defense counsel objected to trial court rulings concerning Detective Ze-ringue’s testimony. During defense counsel’s cross-examination, Detective Ze-ringue testified that Mr. Hayes had a couple of arrests. Counsel objected to the denial of a mistrial and the failure to give an admonition to the jury. He further asserts on appeal that the adverse rulings, along with the trial judge’s limiting counsel’s closing argument, denied Mr. Hayes the right to a fair trial.

The rulings arose following defense counsel’s question to the detective: “And you checked and isn’t it true that he [Mr. Hayes] has no criminal convictions of any kind?” Detective Zeringue responded: “To my knowledge he just had a couple arrests and that was it; no convictions.”

Outside the presence of the jury, defense counsel asked that the court declare a mistrial because the statement about the arrests was inadmissible and nonrespon-sive to the question. The state responded that defense counsel had previously opened the door to that line of questioning by defense counsel’s cross-examination of Mr. Williams.

During defense counsel’s cross-examination of Mr. Williams, Mr. Williams admitted that he was currently incarcerated for a parole violation until 2013. He also admitted to several felony convictions. In response to defense questions, he testified he did not know the defendant. Counsel asked: “You never find out | ^anything about him?” He answered: “I wasn’t looking for nothing.” Counsel then asked: “Nothing. He’s never been convicted of a thing in his life? You know anything about that?” Mr. Williams answered that he did not know the defendant. The state objected to that line of questioning and the court sustained the objection. Next, defense counsel asked whether he knew why the defendant might be upset with a multiple-convicted felon getting involved with a good woman. Before Mr. Williams answered, the prosecutor objected and the court sustained the objection.

The trial judge denied the motion for mistrial and agreed that defense counsel opened the door by previously eliciting character evidence regarding Mr. Hayes’s criminal history. Mindful, however, that the specific question of whether or not Mr. Hayes had an arrest was generally not admissible, the trial judge considered whether he should cure that by an admonition to the jury. Defense counsel argued that the jury be instructed to disregard arrests at this point as there were no convictions.

The trial judge, however, believed that if he were to give the jury the admonition, then defense counsel would argue to the jury in closing that Mr. Hayes had no criminal history. Therefore, the trial judge ruled that because defense counsel opened the door to the testimony, the statement would remain with no admonition. The trial judge then imposed a limitation on closing argument. He instructed the prosecutor that in the event defense counsel argued Mr. Hayes’s good character and that Mr. Hayes had no arrests, then on rebuttal, the prosecutor would be able to rebut that allegation. However, the trial judge would not allow the prosecutor to refer to arrests in the state’s initial closing argument.

11fiDefense counsel resumed questioning Detective Zeringue. Defense counsel asked: “The question to you, Detective Zeringue, is does the defendant have any criminal convictions for anything?” The officer responded: “No, sir.” Defense counsel asked whether she would be in a position to know that. She responded that she had access to his rap sheet and it did not show any convictions.

Thereafter, defense counsel and the prosecutor were presented with the trial judge’s jury charges. No limiting instruction was given. The defendant did not request any changes.

Preliminarily, we note that now on appeal, counsel argues that his closing argument was limited insofar as arguing the defendant’s lack of any convictions because if he did so, the state would be allowed to argue in rebuttal that the defendant had a criminal record based on these nebulous arrests. Even assuming that the defendant raised an objection below to the limitation of argument, that concern did not arise. During closing, defense counsel argued that the jury had to look at the fact that the defendant “has never been convicted of anything in his life at this point, nothing.” He added: “He’s not known to cause fights. He has no convictions for any batteries or assaults or anything.” In rebuttal, the state did not argue nebulous arrests. Also, the state did not mention arrests in its initial closing statements.

At another point during closing, defense counsel argued that:

And then to get to second degree murder at this point you’ve got to believe that despite the fact that there’s been no problems, no issues, no nothing, that he decides to go out there basically in his night slippers to execute her in a coldblooded fashion, totally contralti [sic] to his personality, his past track record, the events of his life, the experiences his family had at this point with him, and his whole being at this point ...

Thus, the prosecutor was not allowed in closing to refer to the detective’s statement that Mr. Hayes had a couple of arrests. However, if defense counsel |17argued in closing that Mr. Hayes had no arrests, the trial judge stated that the prosecutor could use the detective’s statement in rebuttal. Defense counsel’s closing argument was solely limited to that extent. Counsel was not precluded from otherwise arguing Mr. Hayes’s good character, including the lack of convictions, which counsel did extensively argue. Therefore, even assuming counsel preserved an objection, the argument lacks merit.

We now turn to defense counsel’s objections raised below.

Mr. Hayes contends that the trial court should have granted a mistrial due to Detective Zeringue’s testimony regarding the defendant’s previous arrests. He asserts that Detective Zeringue was an experienced police officer who knew that it was improper to mention any arrests that might be on the rap sheet. And the answer was nonresponsive to counsel’s question. The only possible reason for the officer to answer counsel’s question that way was to portray the defendant as a “bad” person who had a criminal history. He argues he was prejudiced by the failure to grant a mistrial and admonish the jury that guilt was to be determined solely on the facts of this case. He also argues the testimony about arrests was not harmless error.

The state responds that the defendant opened the door and that he failed to request a jury instruction to address his concerns.

Absent jurisprudential and statutory exceptions, evidence of other crimes is generally inadmissible in the guilt phase of a criminal trial unless the probative value of the evidence outweighs its prejudicial effect and unless other safeguards are met. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 99 (citations omitted). This general rule ensures that a defendant who has committed other 11scrimes will not be convicted of a present offense simply because he is perceived as a “bad person,” irrespective of the evidence of his guilt or innocence. Id.

However, the introduction of evidence of “good character” places character at issue, thereby permitting the state to cross-examine the defendant’s character witness about his or her knowledge of the defendant’s particular conduct, prior arrests, or other acts relevant to the moral qualities pertinent to the defendant’s crime and to introduce evidence of the defendant’s bad character in rebuttal of the testimony of the defendant’s character witness. State v. Taylor, 07-869, p. 6 (La.App. 5 Cir. 4/29/08), 985 So.2d 266, 268, citing among other cases State v. Rault, 445 So.2d 1203 (La.1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984).

In Taylor, supra, 07-869, pp. 6-7, 985 So.2d at 269-70, this Court held that even if the assignment was preserved on appeal, character evidence was properly admitted because counsel opened the door. Defense counsel questioned a witness about her knowledge of the defendant’s general reputation in the community thereby opening the door to the state’s questioning the witness whether she was aware that her nephew “was on probation when he was arrested?”

We find that counsel opened the door to testimony about the defendant’s criminal history when he asked Mr. Williams whether he knew that Mr. Hayes had never been convicted and then followed the question with whether he knew “anything about that.” Thus, the evidence concerning arrests was properly admitted.

But, even assuming that counsel did not open the door, we find that the defendant was not denied a fair trial.

|lflThe thrust of the defendant’s argument is that he was denied a fair trial because of inadmissible other crimes evidence. Mr. Hayes relies on La.C.Cr.P. arts. 771 and 775 rather than Article 770.

Article 775 pertinently provides:

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.

Article 771, concerning admonition and mistrial provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

La.C.Cr.P. art. 770(2) is not germane here. The article in pertinent part mandates the granting of a mistrial if a judge, district attorney, or a court official refers within the hearing of the jury referring directly or indirectly to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” The jurisprudence interpreting this article has held that an impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the State and would also mandate a mistrial. State v. Madison, 345 So.2d 485, 494 (La.1977).

|2nThe unsolicited and unresponsive testimony from a police officer is not chargeable against the state to provide a ground for mandatory reversal of a conviction. State v. Fowlkes, 352 So.2d 208, 212 (La.1977). Moreover, there is no indication that the detective deliberately uttered the comment about arrests to prejudice the defendant.

Mistrial is a drastic remedy, and is warranted only where remarks result in substantial prejudice sufficient to deprive the defendant of a fair trial. State v. King, 06-554, p. 15 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 394, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600 (citation omitted). A determination of whether prejudice has resulted lies within the sound discretion of the trial judge. The decision to grant or deny a mistrial is within the sound discretion of the trial court. The denial of a motion for a mistrial will not be reversed on appeal unless the trial court has abused its discretion. Id.

Furthermore, to trigger the need for an admonition the remark must refer to a crime alleged to have been committed by the defendant. It must be an unambiguous reference to crimes alleged to have been so committed. State v. Hayes, 414 So.2d 717, 721-22 (La.1982)

In State v. Gordon, 504 So.2d 1135, 1141 (La.App. 5 Cir.1987), counsel objected to the officer’s statements, alleging that the officer testified to other crimes under investigation which the defendant was suspected of having committed. This court found no need for an admonition because neither of the challenged comments was an unambiguous reference to crimes alleged to have been so committed.

In State v. Celestine, 98-1166 (La.App. 5 Cir. 3/30/99), 735 So.2d 109, 114, writ denied, (La.10/8/99), 750 So.2d 178, a police officer testified regarding his identification of the defendant and stated in response to questioning at trial, “And |2twhen I got that name, I ran that subject’s name through the national crime computer and got a pass [sic] criminal history and got a ...” 98-1166 at 6, 735 So.2d at 114. Defense counsel moved for a mistrial, but did not seek an admonition. This Court found no abuse in the trial judge’s refusal to grant a mistrial, stating, “In the present case, the officer did not refer to any specific crime committed by the defendant. He merely stated that he ran the defendant’s name through the national crime computer, got a past criminal history and obtained a photograph.” 98-1166 at 7-8, 735 So.2d at 114.

Similarly, the detective’s nonresponsive answer indicating that Mr. Hayes had been arrested for other crimes did not warrant the drastic remedy of mistrial where any permissible inference referred to ambiguous arrests and the detective did not indicate for what offenses Mr. Hayes might have been arrested on other occasions. Mr. Hayes’s contention that the trial court abused its discretion in failing to admonish the jury to disregard the remark is equally without merit.

Finally, even if the evidence was improperly admitted, the improper admission of other crimes evidence is subject to harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Id. at 96. Chapman tests whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 100, quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Chapman was refined in Sullivan, supra. The Sullivan inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. quoting Sullivan, 113 S.Ct. at 2081. Furthermore, La.C.Cr.P. art. 921 provides the ^proper scope for appellate review; i.e., a judgment or ruling shall not be reversed due to error unless the error affects substantial rights of the accused. Id. at 101.

Considering the strength of this case, particularly Mr. Larvadain’s testimony that a few weeks before the incident, Mr. Hayes threatened to kill Ms. Striggs, and Mr. Williams’s testimony that Ms. Striggs yelled the defendant’s name and “no” shortly before the phone went dead, we cannot say that the trial court’s decision to permit the introduction of other crimes evidence was harmless error beyond a reasonable doubt and that the jury’s verdict was surely unattributable to this error.

Accordingly, this assignment lacks merit.

Error Patent

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review for errors patent reveals none requiring corrective action. See: La.C.Cr.P. arts. 920, 921.

However, we address defense counsel’s concern expressed in brief that credit for time served was evidently not given. See La.C.Cr.P. art. 880. The sentencing transcript and the minute entry do not reflect that Mr. Hayes was given such credit. Such an allowance of credit is mandatory, even for a defendant who is serving a life sentence without benefit of parole, probation or suspension of sentence. La.C.Cr. P. art. 880; State v. Leeming, 612 So.2d 308 (La.App. 5 Cir.1992), writ denied, 616 So.2d 681 (La.1993). See also: State v. Hannon, 98-0957, pp. 1, 12 (La.App. 4 Cir. 5/26/99), 736 So.2d 323, 326, 331, writ denied, 99-1911 (La.12/17/99), 751 So.2d 872; State v. Hebert, 96 1884, p. 18 (La.App. 1 Cir. 6/20/97), 697 So.2d 1040, 1050, writ denied, 97-1892 (La.12/19/97), 706 So.2d 450; State v. Keys, 29,369, p. 21 (La.App. 2 Cir. 5/7/97), 694 So.2d 1107, 1120, units denied, 97-1387, 97-1497 (La.10/31/97), 703 So.2d 21; State v. Guillory, 97-179, pp. 1, 7 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, 403, 405, writ denied, 98-0955 (La.10/9/98), 726 So.2d 17.

But, the failure of the trial court to give credit for time served requires no corrective measures. La.C.Cr.P. art. 880, as amended by Act 788 of 1997, effective August 15,1997, makes credit for time served self-operating even on a silent record. State v. McCorkle, 97-966, (La.App. 5 Cir.2/25/98), 708 So.2d 1212, 1219. Thus, the granting of credit for time served has long been self-operating under La.C.Cr.P. art. 880. State v. Page, 08-531, pp. 17-18 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 453-54, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299 (citation omitted). Therefore, although the trial judge did not state that the defendant was given credit for time served, credit will be given pursuant to La.C.Cr.P. art. 880 as amended.

Conclusion

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

CONVICTION AND SENTENCE AFFIRMED

      . The trial judge conducted a Prieur hearing, State v. Prieur, 277 So.2d 126 (La. 1973), after the state noted its intent to introduce evidence of these statements. The judge ruled the evidence was admissible.

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

      . Detective Zeringue testified that there was an insufficient amount of DNA on the trigger of the gun so that it could not be tested.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . See, La.C.E. art. 609.1(A) and (B):
      A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
      B. Convictions. 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.

      . La.C.E. art. 404 provides that evidence of other crimes, acts or wrongs is generally not admissible,


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Shawn A. MARTIN.
    No. 10-KA-710.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2The defendant/appellant appeals his conviction and sentence for armed robbery in violation of La. R.S. 14:64, arguing that his jury waiver was invalid. Based on the following, we find that the defendant’s jury waiver was knowingly and intelligently made. The conviction and sentence is affirmed.

Procedural Background

On April 15, 2008, the Jefferson Parish Sheriffs Office filed a bill of information against the defendant/appellant, Mr. Shawn Martin, charging him with three offenses. In Counts One and Two, Mr. Martin was charged with armed robbery in violation of La. R.S. 14:64. In Count Three, he was charged with attempted armed robbery in violation of La. R.S. 14:27 and La. R.S. 14:64. He pled not guilty to each offense.

Mr. Martin waived his right to a jury, and the case proceeded before the judge on February 22, 2010, as to Count Two. At the trial, Mr. Amin Joudeh | ..¡testified that as he was leaving the Boomtown Casino in Harvey, Louisiana, Mr. Martin approached him in the parking lot and asked for a cigarette. He further testified that he told Mr. Martin that he did not smoke, and thereafter got into his car and drove away. While driving home, however, Mr. Joudeh noticed he was being followed. He pulled over to the side of the road to allow the vehicle to pass. When the vehicle passed him, it pulled into the driveway of one of the homes in his neighborhood. Feeling no threat, Mr. Joudeh pulled into his own driveway and exited his vehicle. He testified that once he exited the vehicle, Mr. Martin jumped from behind a pile of dirt that was in the next door neighbor’s yard, put a gun in his face, and demanded money. Mr. Joudeh gave him $520 in cash as well as his keys, which Mr. Martin also demanded. After the perpetrators left, Mr. Martin called the police to report the incident.

Sgt. John Carroll, a detective in the robbery division for the Jefferson Parish Sheriffs Office, also testified at the trial. Sgt. Carroll testified that his investigation led to the arrest of Mr. Martin as well as his two co-defendants. Sgt. Carroll testified that he compiled a six-person photographic lineup in which Mr. Joudeh positively identified Mr. Martin as the person who robbed him.

At the conclusion of the hearing, Mr. Martin was found guilty. The state subsequently dismissed Counts One and Three. Mr. Martin was, thereafter, sentenced to 40 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The state then filed a multiple bill pursuant to La. R.S. 15:529.1, alleging Mr. Martin to be a second felony offender. He pled not guilty to the multiple bill, and the matter was heard on May 6, 2010.

Mr. Martin was adjudicated to be a second felony offender at the multiple-bill hearing. The trial court vacated the previously imposed 40-year sentence and resen-tenced him to 55 years in the Department of Corrections without the benefit |4of probation or suspension of sentence. Mr. Martin appeals his conviction and sentence alleging that his jury waiver was invalid.

Discussion

In his sole assignment of error, Mr. Martin argues that his conviction and sentence should be reversed because his jury waiver was not knowingly and intelligently made.

Prior to the commencement of trial, Mr. Martin’s attorney, Mr. Brown, informed the trial court that he discussed the matter at length with Mr. Martin and that Mr. Martin wished to waive his right to a jury trial. Thereafter, the trial judge engaged in the following colloquy with Mr. Martin — the witness:

THE COURT:
Okay. Mr. Martin, you are aware you have a right to trial by jury which the jury may find you guilty as charged, guilty of a lesser charge, or not guilty, correct?
THE WITNESS:
Yes, ma’am.
THE COURT:
And you know you have a right to waive trial by jury and be tried by the court alone?
THE WITNESS:
Yes, ma’am.
$ ⅜ $ ⅜
THE COURT:
And your attorney has enrolled today indicating he is ready for trial and indicated your wish to waive your right to trial by jury and to be tried by the Court alone; is that correct?
THE WITNESS:
Yes, ma’am.
mIüT ⅜ *⅜
THE COURT:
In connection with waiving trial by jury, you understand that this is your decision not your attorney’s decision?
THE WITNESS:
Yes, ma’am.
THE COURT:
Your attorney can give you advice, but the decision in the end is up to you as to whether you want a jury or you want to be tried by the, [sic] Judge.
THE WITNESS:
Yes, ma’am.
THE COURT:
And you want to be tried by the, [sic] Judge?
THE WITNESS:
Yes, ma’am.
THE COURT:
Okay. What is your educational background?
THE WITNESS:
My educational background?
THE COURT:
Uh-huh.
THE WITNESS:
I graduated from school.
THE COURT:
You graduated from high school?
THE WITNESS:
Yes, ma’am.
|fiTHE COURT:
And you understand that from [sic] you have a right to have a juror hear but you want the judge to try your case?
THE WITNESS:
Yes, ma’am.

The court then engaged in the following colloquy with Mr. Brown:

THE COURT:
Mr. Brown, you’ve discussed this at length with your client?
MR. BROWN:
Yes, Your Honor, I did.
THE COURT:
And he understands his rights and still wants to proceed with a judge trial?
MR. BROWN:
Yes, Your Honor.
THE COURT:
And he is knowingly and intelligently waiving his right to jury trial?
MR. BROWN:
Yes, Your Honor.
⅜ * * ⅜
THE COURT:
Do you want to confer with your client one more time to be sure that he wants a judge trial because I want to be absolutely certain before we start, [sic]
MR. BROWN:
Okay.
* ⅜ ⅜ ⅝
MR. BROWN:
|7I’m going to talk to him before I even leave this court.
THE COURT:
Talk to him one more time. There’s still jurors downstairs if that’s what he wants.
⅜ ⅜ ⅜ *

After a brief recess, the court engaged in another colloquy with Mr. Martin:

THE COURT:
Okay. Mr. Martin, you are still under oath. You’ve had an additional opportunity to confer with your counsel. Do you want to proceed by judge and waive jury trial, is that what you want to do?
THE WITNESS:
Yes, Your Honor.
THE COURT:
Okay. All right. Then the court finds that the defendant has waived jury trial, and he has made a knowing, intelligent, free and voluntary act of doing so.

The right to a jury trial, protected by both our state and federal constitutions, holds a place of major importance in the panoply of rights afforded a person accused of a crime. State v. Muller, 351 So.2d 143, 146 (La.1977); La. Const, art. I, §§ 16-17 (citations omitted). So, when a defendant waives this right, the waiver must be knowingly and intelligently made. Id., State v. McCarroll, 337 So.2d 475 (La. 1976). A waiver of this right is never presumed. State v. McCloud, 04-1112, p. 5 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, citing, State v. McCarroll, 337 So.2d 475, 480 (La.1976).

Although it remains the preferred method for the district court to advise a defendant of his right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. State v. Pierre, 02-2665, p. 1 (La.3/28/03), 842 So.2d 321, 322 see La.C.Cr.P. art. 780 (citations omitted). Nevertheless in |8this case, the trial judge thoroughly questioned Mr. Martin to ensure he understood that it was his decision and not his attorney’s as to whether his case proceeded before a jury or the judge. The trial judge then engaged in a colloquy with Mr. Brown who stated that Mr. Martin was knowingly and intelligently waiving his right to a jury trial. Even though Mr. Brown informed the court that Mr. Martin was aware of his rights, the trial judge instructed him to speak with Mr. Martin one final time about his decision before the case proceeded to trial. The record reflects that after having a final discussion with his attorney, Mr. Martin returned to court and again stated that he wanted a bench trial.

Based on the foregoing, we find that Mr. Martin’s jury waiver was knowingly and intelligently made. Therefore, this assignment of error is without merit.

Error Patent Discussion

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

A review of the record reflects that Mr. Martin was not properly advised of the time delay within which to file an application for post-conviction relief. Although the commitment reflects the correct time delay, the trial transcript only states that Mr. Martin was informed that he had “two years to seek post-conviction relief.”

In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that defendant received the notice. However, in State v. Morris, 40,322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363, the Second Circuit corrected this error patent by way of its opinion rather than a remand. State v. Davenport, 08-463, p. 10-1 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 457.

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

We also note that at the time Mr. Martin was resentenced at the multiple-offender hearing, the trial judge imposed a sentence of 55 years in the Department of Corrections rather than stating the sentence was imposed at hard labor. Nevertheless, when the trial judge states that the sentence is to the Department of Corrections, the sentence is necessarily at hard labor. Rodion v. Blackburn, 97-2799, p. 4 (La.App. 1 Cir. 12/28/98), 727 So.2d 602, 604. Therefore, no corrective action is necessary.

Finally, we note that Mr. Martin was sentenced to 40 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on the original armed robbery conviction. However, his multiple-bill sentence was only imposed without the benefit of probation or suspension of sentence. Contrary to the penalty provision for armed robbery, no restriction was placed on parole.

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

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

In addition, the Louisiana Supreme Court stated in State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, that in instances where the restrictions are not recited at sentencing, La. R.S. 15:301.1(A) “deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court.” La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction. Id. Due to the self-activating provision of La. R.S. 15:301.1, Mr. Martin’s multiple-bill sentence on armed robbery is also imposed without the benefit of parole.

Mr. Martin’s conviction and sentence is affirmed.

AFFIRMED.

      . The bill of information charged Mr. Martin as well as two of his co-defendants. At the time of trial, however, the cases were severed.

      . See La. R.S. 14:64.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Lendell JUNIOR.
    No. 10-KA-920.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee, State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Lendell Junior.
    Panel composed of SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS, Judges.
   SUSAN M. CHEHARDY, Judge.

| ^Defendant appeals his convictions and sentences, and counsel for appellant moves to withdraw from this matter. For the reasons that follow, we affirm defendant’s convictions as to all counts and sentences as to the feticide and aggravated battery counts, amend defendant’s enhanced sentence, and affirm that sentence as amended. Further, we remand with instructions. Lastly, we grant counsel’s motion to withdraw.

FACTS AND PROCEDURAL HISTORY

Because the defendant entered guilty pleas and there was no trial, the record contains minimal facts about the offense. However, the record indicates that defendant killed Tanell Williams and her two unborn children on September 20, 2001. Further, defendant committed aggravated battery on Ms. Williams’ twenty-two-month-old son by burning him with hot grease.

On February 28, 2002, the Jefferson Parish grand jury indicted Lendell Junior with one count of second degree murder, in violation of La. R.S.14:30.1; two counts of first degree feticide, in violation of La. R.S. 14:32.6; and one count of aggravated battery, in violation of La. R.S. 14:34. On numerous occasions over lathe next six years, the State and defense moved the trial court to appoint a sanity commission to examine the defendant. The commission examined the defendant at least three times and submitted at least three reports over the years. After several competency hearings, the trial judge found defendant competent to stand trial on August 27, 2008.

On October 27, 2008, defense counsel stated on the record that he was satisfied that his client was competent to go forward with all of the proceedings. Thereafter, defendant withdrew his previous pleas of not guilty and, pursuant to a plea agreement, entered guilty pleas to one count of manslaughter, two counts of feticide and one count of aggravated battery. The trial judge sentenced defendant to imprisonment for 40 years at hard labor for manslaughter, 15 years for each count of feti-cide, and 10 years for aggravated battery; to run concurrently, without diminution of the sentences for good behavior.

That same day, the State filed a multiple offender bill of information alleging defendant to be a second felony offender. Pursuant to a plea agreement, defendant stipulated that he was a second felony offender. Thereafter, the trial court vacated defendant’s manslaughter sentence and imposed an enhanced sentence of 40 years at hard labor without benefit of probation, parole, or suspension of sentence or diminution for good behavior.

Subsequently, on April 23, 2010, defendant filed a Uniform Application for Post-Conviction Relief alleging ineffective assistance of counsel for counsel’s failure to file an appeal and requesting an out-of-time appeal. The trial court granted the out-of-time appeal, pursuant to State v. Counterman, 475 So.2d 336 (La.1985). This appeal follows.

^DISCUSSION

Motion to Withdraw

Counsel for defendant filed an Anders brief and moved to withdraw. Counsel for defendant avers that, after a conscientious and thorough review of the record, no non-frivolous issue exists to raise on appeal. Counsel for defendant further submits that there is no ruling of the trial court that arguably supports an appeal.

We find that Counsel for defendant fulfilled all the necessary criteria outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam); and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. “[I]f counsel finds [the] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders v. California, 87 S.Ct. at 1400.

The Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra. When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the previewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. Id.

In this case, counsel filed a brief detailing the procedural history of the case, a summary of pre-trial hearings and rulings, and a review of defendant’s guilty plea colloquies and sentencing transcripts. Counsel specifically examined the defendant’s sentences, noting that they were imposed in conformity with the plea agreements, so defendant is restricted under the law from appealing those sentences under La.C.Cr.P. art. 881.2(A)(2). Importantly, appellate counsel also noted a patent error with respect to defendant’s enhanced sentence. Specifically, when the trial judge imposed defendant’s enhanced sentence under La. R.S. 15:529.1, the trial judge inadvertently prohibited parole eligibility, which is not proscribed in that statute.

Accordingly, following the procedures outlined in State v. Bradford, supra at 1110-11, this Court conducted an independent review of the pleadings, minute entries, the bill of information, and transcripts in the appeal record. Upon review, we find that the record has disclosed no non-frivolous issues and no rulings that would arguably support an appeal.

Appellant was properly charged by indictment with violations of La. R.S. 14:30.1, R.S. 14:32.6, and R.S. 14:34. The indictment was signed by the Foreperson of the Grand Jury and an assistant district attorney. Defendant was present and represented by counsel at arraignment, during his guilty plea proceedings, and at sentencing. Defendant waived his right to a jury trial and pled guilty to the amended bill of indictment. His guilty plea and sentence were part of a plea bargain. His sentences were legal as authorized by La. R.S. 14:31, 14:32.6, and 14:34. Additionally, defendant’s habitual offender sentence was also legal | f,pursuant to La. R.S. 15:529.1, except for parole ineligibility on his enhanced sentence, which is corrected by this opinion. Defendant also waived his rights in reference to the adjudication on the multiple offender bill of information. Moreover, a defendant cannot seek review of a sentence imposed in conformity with a plea agreement. La.C.Cr.P. art. 881.2(A)(2); State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. The record evidences that defendant has received diligent advocacy from appellate counsel.

Therefore, we find that Counsel conducted a detailed and thorough review of the record and complied with Anders and State v. Jyles, as Counsel’s brief set forth “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (quoting State v. Mouton, 95-0981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177).

Assignment of Error

As the sole assignment of error, appellate counsel requests a review of the record for patent errors. Additionally, appellate counsel has notified the defendant of her motion to withdraw and has advised defendant of his right to file a pro se brief in this appeal. This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 15, 2010 to file a pro se supplemental brief. As of May 11, 2011, when this case was submitted, defendant had not filed a pro se brief. Because defendant has not filed a separate pro se brief raising further issues, this Court’s review is limited to errors on the face of the record pursuant to La.C.Cr.P. art. 920.

17We have found only one that requires correction. As correctly noted by counsel, when the trial judge imposed defendant’s enhanced sentence under La. R.S. 15:529.1, the trial judge inadvertently prohibited parole eligibility. A multiple offender is sentenced according to the law in effect at the time the offense was committed. State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 381-383; State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, 215. The underlying offense was committed on September 20, 2001. At that time, La. R.S. 15:529.1(G) did not authorize the restriction of parole benefits.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C.Cr.P. art. 882. Accordingly, we amend the sentence to delete the parole restriction and remand to the trial court for correction of the commitment and transmission of the amended commitment to the Department of Corrections.

CONCLUSION

For the foregoing reasons, defendant’s enhanced sentence is amended to delete parole ineligibility and affirmed as amended. In all other respects, defendant’s convictions and sentences are affirmed. Further, we remand with instructions. Lastly, we grant counsel’s motion to withdraw.

ENHANCED SENTENCE AMENDED AND AFFIRMED AS AMENDED; AFFIRMED IN ALL OTHER RESPECTS; REMANDED WITH INSTRUCTIONS; MOTION GRANTED.

      . On October 28, 2008, the prosecutor amended the first count of the indictment for the homicide of Tanell Williams on September 20, 2001 to manslaughter, in violation of La. R.S. 14:31.

      . The procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in Bradford, supra.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Defendant's sentencing range was in between 0 and 40 years for manslaughter, between 0 and 15 years each for the two counts of first degree feticide, and between 0 and 10 years for the aggravated battery charge. Furthermore, defendant’s sentencing range as a second felony offender under the habitual offender statute was in between 20 and 80 years.