author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Kevin E. HOWARD.
    No. 10-KA-869.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plain-tifiyAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Kevin E. Howard, I.P.P., Jonesboro, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

1 ¿This is defendant’s second appeal.

Defendant, Kevin Howard, was convicted of possession with intent to distribute heroin, a violation of LSA-R.S. 40:966 A and possession of 28 grams or more, but less than 200 grams of cocaine, a violation of LSA-R.S. 40,:967 F. He was sentenced to 15 years at hard labor on each count, to be served concurrently with each other, and with any other sentences he was currently serving. The court also imposed a fine of $50,000 as to Count 2. State v. Howard, 09-928 (La.App. 5 Cir. 5/25/10), 37 So.3d 1099.

On appeal, this Court conditionally affirmed the defendant’s convictions, and his sentence on count 2. This Court further remanded the case to the trial court ■with instructions for it to conduct an evi-dentiary hearing on the issue of whether defendant executed a valid waiver of his right to a jury trial, reserving defendant’s right to appeal in the event of an adverse ruling. State v. Howard, 37 So.3d at 1105, 1107. This Court also remanded for a contradictory hearing on the claims of ineffective assistance of counsel to allow defendant the opportunity to develop an adequate record on those issues, reserving defendant’s right to appeal in the event of an adverse decision. State v. Howard, 37 So.3d at 1107.

Lastly, this Court vacated the sentence on Count 1 and remanded for resentencing so the trial court could order at least five years to be served without benefit of parole, probation, or suspension of sentence in accordance with LSA-R.S. 40:966 B(1). State v. Howard, 37 So.3d at 1107.

On remand, an evidentiary hearing was held in the trial court as ordered by this Court. After considering the evidence, the trial judge found that the jury waiver was given knowingly, intelligently, and persistently, and that defendant’s attorney, Jake Lemmon, had not been ineffective as counsel. The transcript indicates that the trial judge sentenced defendant on Count 1 to imprisonment at hard labor for fifteen years, with the first five years to be served without benefit of parole, probation, or suspension of sentence. This appeal followed.

In his first allegation of error in this second appeal defendant argues that, on remand, the trial judge erred by finding that the jury waiver was made knowingly and intelligently.

During the evidentiary hearing held on remand, defendant testified that during the course of the trial, he met with his trial attorney, Mr. Lemmon, and that Mr. Lem-mon told him that it was probably a bad idea to have a judge trial given his history. Defendant further testified that he (defendant) asked for a judge trial and that it was his idea to do so. Defendant testified that Mr. Lemmon did not discuss with him the voir dire process of selecting a jury, the qualifications of a juror, or the number of individuals on a jury panel. He asserted that Mr. Lemmon did not discuss with him the number of jurors that would be seated at his trial or 14the number of jurors it would require to obtain a verdict. Defendant also asserted that Mr. Lemmon did not discuss with him jury challenges or the consequences of a jury failing to reach a verdict. He explained that Mr. Lemmon told him it was his (defendant’s) choice as to whether he should be tried by a jury or the judge, but that it was “a bad idea just going with one man, the judge.” When asked whether he was aware that he had the right to a jury trial, defendant replied, “I just thought it was better with the judge, I just went with my own feelings.” Defendant stated that on the morning of trial, the judge said that he was going to have a bench trial as “That’s what you wanted from the get-go;” He said the judge did not explain to him that he had a constitutional right to a jury trial. Defendant did not recall the commissioner informing him of his right to a jury trial when he was arraigned, or the commissioner telling him that he had 15 days from the date of the arraignment to make the selection. Defendant testified that he had no legal training.

On cross-examination, defendant admitted that he told Mr. Lemmon he wanted a judge trial instead of a jury trial. Defendant also admitted that he understood that it was his choice as to whether to have a judge trial or a jury trial. He understood that he could have had a jury trial if he had wanted one. Defendant told Mr. Lemmon he wanted a judge trial, even though Mr. Lemmon said it was a bad idea, and that it was his right to do that.

The trial judge then asked defendant some questions. Defendant testified that he was in the graduate program at Southern University when this incident occurred, and was nearing completion of his master’s degree in public administration. He said he was proceeding successfully in that program. Defendant asserted that he was a drug addiction counselor at the Baton Rouge Detox Center. He admitted that he had two prior convictions, and that he had asked the trial judge on a number of occasions for a bench trial.

| ¡-.Defendant also recalled that the trial judge twice refused his request for a bench trial, prior to granting the request on the day of trial, and that his request was against defense counsel’s advice.

Defendant testified that the trial judge did not tell him he had a constitutional right to a jury trial. He admitted that he knew what a jury and a judge were, and he understood that he could have a jury trial if he wanted a jury trial. Instead, defendant chose not to have a jury trial, but to have a judge trial.

Mr. Lemmon testified that he remembered this case and recalled the trial preparations he engaged in, and the discussions he had with defendant. He stated that from the very beginning, defendant wanted to waive a jury trial and be tried by the court alone. Mr. Lemmon explained that they had discussed that topic at length on multiple occasions in court and in meetings at the public defenders’ office. He thought he had to file a special motion asking the court to reconsider its position on allowing defendant to waive the jury and be tried by the court alone.

Mr. Lemmon’s position as a defense attorney was he would never elect to try a case before a judge when a defendant has a prior criminal history. Nevertheless, Mr. Lemmon testified that he prepared for both a jury and a judge trial hoping defendant would change his mind. He remembered the issue was addressed a lot in court because it was a serious point of contention in his eyes.

On cross-examination, Mr. Lemmon testified that he advised defendant he had a right to a jury trial. He believed that defendant knowingly and intelligently waived his right to a jury trial. Mr. Lem-mon stated that defendant adamantly wanted a judge trial. He pleaded with defendant and his family from the very beginning when he first met defendant not to take a bench trial. Mr. Lemmon was relieved when the trial judge initially denied defendant the ability to have a judge trial because he thought that was his first successful step in defending defendant. | i;Mr. Lemmon stated that he indicated on the day of trial in front of the judge that it was against his advice that defendant was electing to have a judge trial.

After hearing arguments of counsel, the trial judge found that defendant knowingly, intelligently, and persistently waived his right to a jury trial. The trial judge noted that defendant knew before trial that there was the element of having to announce that he lied, that his sister’s testimony would be less than truthful, (if not damaging to him,) and that defendant’s strategy was that he was to be the sole voice of reason when he testified and that the trial judge would understand. The trial judge commented that defendant’s attorney knew otherwise and counseled him against taking the witness stand in front of a judge since defendant had two prior convictions and a disclaimer of the truthfulness of the statement he gave to the police.

The trial judge further stated that the following factors led him to conclude that defendant knowingly and intelligently waived his right to a jury trial, and that Mr. Lemmon did nothing that would have impacted the trial judge’s decision to find defendant guilty beyond a reasonable doubt: defendant’s intelligent waiver of the jury trial, his desire to conduct his own trial strategy, the fact that defendant was wise as to life and to the ways of the criminal justice system by virtue of two prior convictions, his education evidenced by the fact that he was near the completion of a master’s degree, and defendant’s “curiously” having attained the level of being an addiction counselor.

Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. LSA-C.Cr.P. art. 780 A. Waiver of this right is never presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976); State v. Zeringue, 03-697 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, 193, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298. Although it remains the preferred method 17for the district court to advise a defendant of the right to a jury trial in open court before obtaining a waiver, that practice is not statutorily required. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321 (per curiam); State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04), 889 So.2d 1151, 1154, writ denied, 04-3195 (La.5/6/05), 901 So.2d 1093. It is likewise preferred, but not necessary, for the defendant to waive the right to a jury trial personally. Id. Counsel may waive the right on the defendant’s behalf, provided the defendant’s decision to do so was made knowingly and intelligently. Id.

We find that defendant was advised he had the right to a jury trial, and that he knowingly and intelligently waived that right. Defense counsel testified that he advised defendant he had the right to a jury trial, but that defendant adamantly wanted a judge trial. Defendant admitted at the hearing that he understood that it was his choice as to whether to have a judge trial or a jury trial. He also admitted that he knew what a jury and a judge were, and that he asked for a judge trial. Accordingly, the trial judge did not err in allowing defendant to waive his right to trial by jury. Compare State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. This allegation lacks merit.

In his second allegation of error defendant argues, as he did in his first appeal, that his trial counsel was ineffective because he entered into several stipulations regarding the evidence at trial, and those stipulations prejudiced his ability to refute the evidence against him. Specifically, defendant contends that his trial counsel was ineffective because he employed a poor defense strategy; stipulated to the lab report and the weights of the drugs; stipulated that men’s clothing found in the residence belonged to defendant; and stipulated that items found in a briefcase belonged to defendant. Defendant also contends that his trial ^counsel was ineffective because he failed to call his sister, Wondra Howard, as a witness at trial.

Mr. Lemmon indicated that he made several stipulations at trial. When asked what the purpose was for those stipulations, Mr. Lemmon responded that it would have been different if there had been a jury trial. Mr. Lemmon explained that the judge had the case for a very long time and was aware of the laboratory analysis. He further explained that most of those stipulations were made in the interest of judicial economy, but that was in conjunction with his defense that defendant was not aware of the drugs, that he did not know of the drugs, and that the drugs were not his.

With respect to the application for the search warrant, Mr. Lemmon was aware that defendant had been named by the confidential informant, however his defense was that he had been living in Texas and was not around the area where the drugs were found. Therefore, regardless of the admissibility, “it would have been the purpose of my entire defense was [sic] to remove Mr. Howard from the residence,” and that the defense contended that defendant was only at the residence for a funeral that weekend, and it would have been impossible for defendant to have been selling narcotics prior to the date of his arrest.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63.

| aUnder the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, supra, citing, Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. This requires showing that counsel’s errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Dabney, 908 So.2d at 63, citing, Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” State v. Dabney, 908 So.2d at 63, quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. There is no precise definition of reasonably effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of the case, and must take into consideration the counsel’s perspective at the time. State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, 1078-79, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance. Id.

As was stated previously, defendant contends that his trial counsel was ineffective for many reasons. First, defendant complains that the defense his counsel presented at trial — that defendant confessed his guilt to police to protect his hosister — was a poor one. It is well established that “hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. An attorney’s level of representation is not determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987), citing Strickland v. Washington, supra. See also, State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1093, writ denied, 09-1394 (La.2/26/10), 28 So.3d 268. Counsel’s theory of the case was consistent with defendant’s own trial testimony. Therefore, defendant cannot now complain that counsel’s performance was deficient simply because the strategy was unsuccessful.

Second, concerning the defense’s stipulation to Mr. Krone’s credentials and report, concerning the nature and amount of the drugs, we do not find that counsel was deficient in so stipulating. Such stipulations are often entered into by counsel in the interest of judicial economy and trial strategy. See State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 147, writ denied, 02-0209 (La.2/14/03), 836 So.2d 134. In this instance, counsel’s stipulations served the ends of judicial economy as well as trial strategy. In agreeing to these stipulations defense counsel commented, “[T]he weight of the cocaine has no bearing on my defense in this matter.” The stipulations to Mr. Krone’s report did not adversely affect defendant’s case. Therefore, defendant did not suffer prejudice as contemplated by Strickland.

Regarding defense counsel’s stipulation that the articles of men’s clothing found in the Helen Street residence belonged to defendant, we do not find that counsel was deficient in entering into this stipulation, or that defendant was prejudiced by it. During his own trial testimony, defendant admitted the clothing found in the apartment belonged to him. He further testified that he put his clothes |1Tin a drawer in his nephew’s dresser. Defendant’s testimony was actually more specific than counsel’s stipulation.

Defendant also maintains that his trial counsel entered into a stipulation that all of the items located in the briefcase belonged to defendant. There is no such stipulation in the portion of the record cited by defendant, nor does there appear to be such a stipulation elsewhere in the record. In any case, defendant essentially admitted to ownership of the briefcase during his testimony. When defense counsel asked him, “Any drugs in your briefcase?” defendant responded, “No, sir.”

Next, defendant contends that his trial counsel was ineffective because he stipulated to incriminating facts contained in the search warrant, thereby passing on the opportunity to cross-examine Detective Módica, one of the officers who worked with the confidential informant. At the evidentiary hearing, Mr. Lemmon, defendant’s trial counsel, testified that he stipulated to the search warrant as part of his trial strategy, since his defense was that defendant was living in Texas and that he was only at the residence that weekend for a funeral, and it would have been impossible for defendant to have been selling narcotics prior to the date of his arrest. Because his defense was that defendant did not know about the drugs and that the drugs did not belong to him, the issues stipulated to were not germane. Further, when asked why he would stipulate to an identification that placed defendant at the scene engaged in criminal activity not before the court, Mr. Lemmon answered that it went to the credibility of the police officers who were alleging that defendant possessed the drugs for which he was convicted, because if the judge had believed defendant’s testimony, it would have shown the lack of credibility of the officers who prepared the search warrant. He also testified that not making the stipulations in question would not have definitely altered the outcome of the trial.

|12We find that defendant has not overcome the presumption that, under the circumstances, counsel’s stipulations might be considered trial strategy. Furthermore, defendant cannot now complain that counsel’s performance was deficient simply because the strategy was unsuccessful.

Finally, defendant argues that his trial counsel was ineffective because he failed to call his sister, Wondra Howard, as a witness at trial. Defendant suggests counsel could have questioned Ms. Howard about why defendant was staying at her apartment, and about a friend of hers was sprayed by the police.

A defense counsel’s decision to call or not call a witness is a matter of trial strategy and is not per se evidence of ineffective assistance. State v. Allen, 06-778, p. 11 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 751, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754.

At the evidentiary hearing, counsel asked Mr. Lemmon why the individual who was tasered at the residence was not called as a witness, and Mr. Lemmon replied that he believed that that person was the boyfriend or husband of Mr. Howard’s sister, whose testimony would have been detrimental to Mr. Howard. Mr. Lemmon testified that he made a decision not to call that person or defendant’s sister because they would not have given testimony that would have been beneficial to defendant.

We find that the trial strategy employed by defendant’s trial counsel was reasonable under the circumstances, and that counsel was not deficient in failing to call defendant’s sister or her husband or boyfriend as witnesses at trial. Defendant has failed to show under the Strickland test that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms, or that the deficient performance prejudiced the defense. This allegation lacks merit.

^Defendant filed a pro se brief in which he alleges that the State withheld Brady evidence by failing to provide him with the name of the confidential informant, whose information was used to obtain the search warrant.

As a general rule, an informant’s identity is privileged information. State v. Clark, 05-61, p. 12 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, 1014, 1014 n. 18, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538 (citing State v. Broadway, 96-2659, p. 19 (La.10/19/99), 753 So.2d 801, 815, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000)). This privilege is founded upon public policy and seeks to further and protect the public interest and law enforcement by encouraging people to supply information to the police by protecting their anonymity. Clark, 05-61 at 12, 909 So.2d at 1014-15, 1015 n. 19 (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957)). However, exceptions to this privilege exist. See LSA-C.E. art. 514(C). The identity of an informant should be made known to the accused only when his right to prepare his defense outweighs the need for protection of the flow of information. State v. Smith, 09-259 (La.App. 5 Cir. 11/24/09), 28 So.3d 1092. The burden is on the defendant to show exceptional circumstances warranting disclosure of the name of a confidential informant. State v. Smith, supra.

Here, defendant’s theory of the case was that he was not present at the time of the buy, and that he lived in Texas and was only at the apartment for a funeral. The confidential informant’s information may have provided the evidence to support the search warrant, however it did not contribute to the crime charged, which was possession of the drugs found at the apartment. Therefore the defense was not entitled to disclosure of the identity of the confidential informant. State v. Regis, 09-0806 (La.App. 4 Cir. 11/12/09), 25 So.3d 183, writ denied 10-0003 (La.6/18/10), 38 So.3d 322; State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied 05-0830 (La.11/28/05), 916 So.2d 143, 916 So.2d 143.

In addition, the defendant was resen-tenced on remand. We have reviewed the record for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find the following error.

This Court vacated the sentence on Count 1 and remanded for resentencing so the trial court could order at least five years of the sentence to be served without benefit of parole, probation, or suspension of sentence in accordance with LSA-R.S. 40:966 B(1). State v. Howard, 09-928 at 13, 37 So.3d at 1107. On remand, the trial judge sentenced defendant to imprisonment at hard labor for fifteen years, with the first five years to be served without benefit of parole, probation, or suspension of sentence, as this Court ordered.

However, at the time of the offense on August 3, 2007, LSA-R.S. 40:966 B(1) provided that at least five years of the sentence were to be served without benefit of probation or suspension of sentence. LSA-R.S. 40:966 B(1) did not restrict parole eligibility. Accordingly we amend the defendant’s sentence on Count 1 to delete the restriction on parole eligibility. We also order the trial court to correct the commitment accordingly, and to transmit the amended commitment to the officer in charge of the institution to which defendant has been sentenced. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam); State v. Watts, 98-2594 (La.1/29/99), 736 So.2d 821; State v. Uloho, 04-55, p. 25 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 934, writs denied, 04-1640 (La.11/19/04), 888 So.2d 192 and 08-2370 (La.1/30/09), 999 So.2d 753.

We also find that there are inconsistencies between the commitment and the transcript, in that the commitment reflects that defendant was convicted of ^“SCHEDULE 1 DIST/WITD OF A CDS — HEROIN;” however, defendant was actually convicted on Count 1 of possession with intent to distribute heroin.

Because the commitment appears to indicate distribution as the charge, we remand the matter to allow the trial judge to correct the commitment to conform to the transcript and other parts of the record. State v. Woolridge, 08-340, p. 9 (La.App. 5 Cir. 10/14/08), 996 So.2d 618, 623-24, writ denied, 09-179 (La.10/30/09), 21 So.3d 281.

Second, the commitment reflects that the trial judge ordered the sentence on Count 1 “to run concurrently with count 2 and any other Sentence the Defendant is serving from this date forward.” However, the transcript does not show that the trial judge ordered the sentence on Count 1 to be served concurrently with any other sentence. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Lastly, the commitment states that defense counsel “objected to the Court’s findings and advised he will file a Motion for Appeal;” however, the transcript only shows that defense counsel objected to the ruling. It does not reflect that defense counsel advised that he would file a motion for appeal. The transcript prevails. State v. Lynch, supra.

For the above discussed reasons, defendant’s convictions affirmed. Defendant’s sentence on count 1 is amended to delete the provision excluding parole eligibility, and as such, his sentences are affirmed. This matter is remanded to the trial court with instructions to correct the commitment to conform to the transcript in the above respects, to correct the commitment to reflect that the sentence on Count 1 has been amended to delete the restriction on parole eligibility, and to transmit the amended commitment to the officer in charge of the | ^institution to which defendant has been sentenced. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

AMENDED AND AFFIRMED; REMANDED WITH ORDER.

      . The underlying facts supporting defendant’s convictions can be found in this court’s prior opinion. State v. Howard, supra.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael D. GLAUB.
    No. 10-KA-761.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

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

12Pefendant, Michael D. Glaub, was indicted by a Jefferson Parish Grand Jury on March 20, 2008, and charged with second degree murder in violation of LSA-R.S. 14:30.1. He pled not guilty. On November 18, 2008, defendant proceeded to trial, and a jury found him guilty of the lesser included offense of manslaughter, a violation of LSA-R.S. 14:31, on November 20, 2008.

On February 13, 2009, defendant was sentenced to 40 years imprisonment at hard labor. On the same day, the State filed a multiple offender bill of information and defendant denied the allegations therein. At the multiple bill hearing on August 7, 2009, the trial court found that defendant was a second felony offender. The trial court vacated defendant’s original sentence and imposed an enhanced sentence of 80 years imprisonment at hard labor, without benefit of probation or suspension of sentence. Defendant appeals.

FACTS

At trial, Timothy Radecker and Brandon Jensen testified that they were with the victim, Kenneth Musgrove, on November 26, 2007. They went with Mr. Musgrove to defendant’s house to pick up the money Mr. Musgrove claimed ^defendant owed him for a broken window on Mr. Mus-grove’s truck. Mr. Radecker testified that Mr. Musgrove and defendant had previously argued regarding an incident in which the window of Mr. Musgrove’s truck was broken and that, in a fight between Mr. Musgrove and defendant, Mr. Mus-grove had punched defendant in the face, giving him a broken nose and swollen eyes. Mr. Jensen testified that, following the fight, Mr. Musgrove and defendant made “a little payment plan,” pursuant to which defendant agreed to give Mr. Musgrove money for the window. Mr. Jensen further testified that, after the agreement had been made, defendant said something to Mr. Musgrove on the phone which caused another argument and prompted Mr. Mus-grove to go to defendant’s house.

When the three men arrived at defendant’s house, Mr. Musgrove exited the truck. Defendant was standing outside. Mr. Musgrove and defendant argued briefly. Mr. Radecker testified that when defendant suddenly walked inside, Mr. Mus-grove turned around and started to walk back around the front of his truck. At that point, defendant came out of the house and started shooting. Mr. Radecker recalled defendant firing eight to ten shots, and he testified that after defendant shot Mr. Musgrove, he looked at Mr. Ra-decker and Mr. Jensen and said “Ya’ll want some too?” Mr. Radecker testified that Mr. Musgrove’s back was turned toward defendant when he was shot and that no one 'in Mr. Musgrove’s truck had a weapon.

Mr. Jensen’s testimony was similar to that offered by Mr. Radecker. Mr. Jensen testified that as Mr. Musgrove walked up the sidewalk, defendant ran inside. Mr. Jensen yelled a warning to Mr. Musgrove to run, and as Mr. Musgrove turned and started running, defendant came out the front door and started shooting. Mr. Jensen heard seven shots and indicated that Mr. Musgrove’s back was toward defendant when the shots were fired. Mr. Jensen thought they were going to 14defendant’s house to pick up money, and he did not hear Mr. Musgrove say he was planning on fighting or killing defendant. Mr. Jensen further testified that no one else at the scene had a firearm.

Brandon LeLeaux testified that, while he and several others were at his house on the day of the shooting, he witnessed Mr. Musgrove speaking to defendant on the telephone. Following this conversation, Mr. LeLeaux spoke with defendant on the telephone and warned him to stay inside because he knew that Mr. Musgrove was going to defendant’s house. Shortly thereafter, Mr. Musgrove, Mr. Radecker and Mr. Jensen left Mr. LeLeaux’s home. When Mr. LeLeaux arrived at defendant’s house a short while later, Mr. Musgrove was dead.

Chantel Dufrene testified for the defense. She stated that Brandon LeLeaux told her that a weapon was removed from the deceased’s body after he was shot. Ms. Dufrene was not at the scene at the time of the shooting and did not contact the police regarding this information. Mr. Radecker, Mr. Jensen, and Mr. LeLeaux each testified that they did not see anyone remove a weapon from the deceased’s body. Two of defendant’s neighbors, Brooke Holeton and Marlene Heintz, both testified that they observed the scene from their houses and did not see anyone remove a weapon from the deceased’s body.

Dr. Susan Garcia performed the autopsy on Kenneth Musgrove. She testified at trial that the cause of death was multiple gunshot wounds, primarily to the victim’s back and side. Dr. Garcia testified that at least one of the wounds appeared to have been sustained by a projectile that had lost most of its kinetic energy and was “certainly not indicative of a close range wound.” Dr. Garcia further testified that the victim sustained at least four wounds to the back, a couple of wounds to the side, and one to the abdomen. Thus, Dr. Garcia opined that “at some point in time, the decedent’s back was facing the firearm at the time of |sdischarge.” The toxicology report revealed the presence of several drugs in the victim’s system.

Defendant testified at trial about the events leading up to, and surrounding, the shooting. A couple of nights before the shooting, he and Mr. Musgrove went to Boomtown Casino in Mr. Musgrove’s truck. When defendant ran out of money, he asked Mr. Musgrove for his keys so he could sleep in the truck. When Mr. Mus-grove returned and was unable to rouse defendant, he broke the window of his truck and, when defendant woke up, Mr. Musgrove told defendant “[y]ou know you’re going to have to pay for my window.” Defendant replied that he was not going to pay for the window because Mr. Musgrove broke it. In response, Mr. Mus-grove stated “well when we get back to Avondale, we’re going to fight.”

Defendant testified that he and Mr. Musgrove stopped to pick up Mr. Radecker on their way to Mr. LeLeaux’s house, where he and Mr. Musgrove engaged in a physical altercation in which Mr. Mus-grove broke defendant’s nose. During the fight, Mr. Musgrove retrieved a trailer hitch from the back of his truck and broke one of defendant’s car windows. Defendant further testified that he and Mr. Mus-grove argued again later at his house, but the dispute was resolved when he agreed to pay Mr. Musgrove for the window once he got a job.

Later that day, on his way home from the store, defendant passed by Mr. Le-Leaux’s house, where he saw Mr. Le-Leaux, Mr. Musgrove, Mr. Jensen and Mr. Carter. Defendant did not stop and went straight home. Shortly thereafter, defendant received a call from Mr. Carter, who asked why defendant did not stop at Mr. LeLeaux’s house. Mr. LeLeaux spoke with defendant and warned him that Mr. Musgrove was on his way to defendant’s house. After speaking with Mr. LeLeaux, defendant retrieved his stepfather’s gun.

| (¿Defendant testified that when Mr. Musgrove arrived, he was “acting violent” and said if defendant would not fight, he would drag defendant out of his house. Defendant told Mr. Musgrove that he did not want any trouble. Mr. Musgrove stopped, turned around, and walked back to his vehicle. Defendant testified that it appeared to him that Mr. Musgrove was retrieving a weapon. When Mr. Musgrove turned back around, defendant reached inside, grabbed the gun, and shot Mr. Mus-grove. Contrary to the testimony offered by Mr. Radecker and Mr. Jensen, defendant claimed that Mr. Musgrove was coming toward him when he fired the first shot.

When questioned about the shooting on cross-examination, defendant admitted that the deceased had never threatened him with a gun and that, although he assumed the deceased was returning to his vehicle to retrieve a weapon, he did not see a weapon in the deceased’s hands when he began shooting. Defendant further admitted that, even though he felt that he had to shoot the deceased, he could have called 911 when the deceased arrived at his house or he could have closed the door. Defendant also admitted that, when he shot the deceased, he fired every bullet in the gun and reloaded the weapon when he was finished. After reloading the weapon, defendant could have shot Mr. Radecker and Mr. Jensen, but he stated that he did not feel any threat from them. Defendant then called the police.

DISCUSSION

In his first assignment of error, defendant contends that the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense and that the evidence presented by the State was insufficient to support the verdict of manslaughter. Defendant asserts that Kenneth Musgrove provoked the confrontation that ended in his death and that defendant’s actions were justified, |7because he was in fear for his life or great bodily harm. He argues that the evidence shows that he had no choice other than to shoot Kenny. Defendant contends that, because the State failed to eliminate the reasonable hypothesis of self-defense, reversal of defendant’s conviction is warranted.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Scott, 06-134, p. 12 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, 470, writ denied, 06-2133 (La.3/30/07), 953 So.2d 61. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. at 7, 985 So.2d at 240.

In the instant case, defendant was charged with second degree murder and convicted of manslaughter under LSA-R.S. 14:31. Defendant does not deny that he shot and killed the victim, but he contends he acted in self-defense.

|8When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Hyman, 09-409, p. 9 (La.App. 5 Cir. 2/9/10), 33 So.3d 271, 278, writ denied, 10-0548 (La.10/1/10), 45 So.3d 1094. According to LSA-R.S. 14:20, a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” The determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. Hyman, 09-409 at 10, 33 So.3d at 278.

The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Id. The trier-of-fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651. It is not the function of the appellate court to assess the credibility determinations of the trier-of-fact or to re-weigh the evidence. Id.

In the instant case, the jury was confronted with conflicting testimony offered by defendant and various witnesses for the State. The two primary witnesses to the incident, Timothy Radecker and Brandon Jensen, offered testimony that was inconsistent with defendant’s claim of self-defense. Though both men confirmed that there had been an ongoing disagreement between defendant and Mr. Musgrove regarding the broken truck window, which involved a physical altercation, their testimony did not support a conclusion that defendant [ flacted in self-defense (i.e., that the defendant could reasonably have believed his life to be in imminent danger or that deadly force was necessary to prevent the danger).

As stated above, Mr. Radecker testified that when defendant suddenly walked inside, Mr. Musgrove turned around and started to walk back around the front of his truck. At that point, defendant came out of the house and started shooting. Mr. Radecker testified that Mr. Mus-grove’s back was turned toward defendant when he was shot and that no one in Mr. Musgrove’s truck had a weapon. Mr. Jensen testified that as Mr. Musgrove walked up the sidewalk, defendant ran inside. Mr. Jensen yelled a warning to Mr. Mus-grove to run, and as Mr. Musgrove turned and started running, defendant came out the front door and started shooting. Mr. Jensen indicated that Mr. Musgrove’s back was toward defendant when the shots were fired. Mr. Jensen further testified that no one else at the scene had a firearm.

Other than Chantel Dufrene’s testimony that Brandon LeLeaux told her a weapon was removed from the deceased’s body after he was shot, defendant offered no evidence to suggest that Mr. Musgrove had a weapon of any kind. Moreover, defendant’s testimony that Mr. Musgrove was advancing on defendant at the time of the shooting was contradicted by testimony offered by the State’s witnesses indicating that Mr. Musgrove was attempting to flee when defendant shot him.

Finally, the testimony offered by Dr. Susan Garcia corroborates the testimony that Mr. Musgrove’s back was facing defendant at the time of the shooting. Dr. Garcia testified at trial that the cause of death was multiple gunshot wounds, primarily to the victim’s back and side. Additionally, Dr. Garcia testified that at least one of the wounds was not a close range wound.

|inIn contrast, defendant testified that when Mr. Musgrove arrived, he threatened to drag defendant out of his house if he would not fight. According to defendant, Mr. Musgrove walked to his vehicle and appeared to retrieve a weapon. In response, when Mr. Musgrove turned back around, defendant shot Mr. Musgrove. Contrary to the testimony offered by Mr. Radecker and Mr. Jensen, defendant claimed that Mr. Musgrove was coming toward him when he fired the first shot. However, on cross-examination, defendant admitted that the deceased had never threatened him with a gun and that, although he assumed the deceased was returning to his vehicle to retrieve a weapon, he did not see a weapon in the deceased’s hands when he began shooting. Finally, defendant testified that, even though he felt that he had to shoot the deceased, he could have called 911 when the deceased arrived at his house or he could have closed the door.

The jurors clearly found the testimony offered by the State’s witnesses to be more credible than the testimony of defendant. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Jones, 08-20 at 7, 985 So.2d at 240.

In the instant case, the jury was presented with all of the evidence and apparently rejected defendant’s testimony regarding self-defense. Based on the record before us, we find that the State met its burden of proving defendant did not act in self-defense, and the evidence was clearly sufficient to support his conviction for manslaughter. As such, this assignment of error is without merit.

In his second assignment of error, defendant contends that, under the circumstances, the trial court erred by imposing the maximum sentence provided for under the Habitual Offender Law. Specifically, defendant asserts that the trial court, in imposing an 80-year sentence, failed to consider that the deceased was the ^instigator and that it was reasonable for defendant to believe he was in grave danger. Defendant further contends that the trial court improperly put the onus on him to withdraw from his own home and retreat from the situation. Finally, defendant argues that the trial court failed to consider these mitigating factors: (1) defendant had no criminal history of violent crimes (only a prior felony for possession of Xanax); (2) he had strong family support; (3) he was not likely to commit a similar act; (4) he had withdrawn repeatedly from threats and abuse by the deceased; (5) he had a work history and is a father; and (6) he believed, as did others, that the deceased would kill or seriously injure him. Thus, defendant contends that the trial court’s failure to consider mitigating factors was contrary to the sentencing requirements of LSA-C.Cr.P. art. 894.1 and LSA-R.S. 15:529.1.

Defendant did not make or file a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1 subsequent to his original sentencing or after he was re-sentenced pursuant to LSA-R.S. 15:529.1. Instead, defendant merely objected to his sentences at the sentencing hearings, without alleging any specific grounds for the objection. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108; LSA-C.Cr.P. art. 881.1(E). As such, defendant is limited to a 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. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655. A sentence is considered excessive, even when it is within the applicable statutory |, grange, if it imposes needless pain and suffering and is grossly disproportionate to the seriousness of the offense. Warmack, 07-311 at 7, 973 So.2d at 109.

In reviewing a sentence for ex-cessiveness, 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. Pearson, 07-332 at 15, 975 So.2d at 655-56. 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. Pearson, 07-332 at 15-16, 975 So.2d at 656. 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. Id. at 15, 975 So.2d at 656.

Defendant was found guilty of manslaughter, in violation of LSA-R.S. 14:31. LSA-R.S. 14:31(B) provides that whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years. On February 13, 2009, defendant was sentenced to 40 years at hard labor. In imposing defendant’s sentence, the court noted as follows:

Mr. Glaub, you had ample opportunity. You knew how to use 9-1-1 after you shot him. You could have used 9-1-1 when he came to the house. You evidently knew the number.
What disturbed me the most about that was the first words out of your mouth on that 9-1-1 tape is you’re pleading self defense. Okay?
There were many options given to you that day. My problem is that there were a number of the gunshot wounds to the back. This individual did not come to your house with a gun. There was no evidence to suggest there was a gun. There was evidence to suggest there wasn’t one from that lady that was standing in the doorway who called 9-1-1.
My problem is, is that you shot in a residential area and created a risk of harm or great bodily harm to more than one person.
I believe that you are in need of correctional treatment, that you need to be put in an institution, because I believe that you are a danger to society. And I believe that based on this, and I’m doing this under [ 1sArticle 894.1 of the Code of Criminal Procedure of the sentencing guidelines, that you used a dangerous weapon in the offense of this, being a gun, and that I believe that any lesser sentence that I sentence you to would deprecate the seriousness of this offense.

After defendant was sentenced, the State filed a multiple offender bill of information. At the multiple bill hearing on August 7, 2009, the trial court found that defendant was a second felony offender. The trial court vacated defendant’s original sentence and imposed an enhanced sentence of 80 years imprisonment at hard labor, without benefit of probation or suspension of sentence, in accordance with LSA-R.S. 15:529.1. In resentencing defendant, the trial court noted:

Alright, Mr. Glaub, the Court recalls this case. I remember the testimony in this case. There was never any evidence to suggest that this — that the victim, or this individual, the deceased, had a weapon of any kind; as a matter of fact, when you produced this weapon, he fled, and he was shot multiple times in the back. I understand that you did call 911, but you didn’t call 911 when this individual approached your particular residence. You either had an idea he was coming, or knew he was coming, because you had a fully loaded weapon at your disposal. As a matter of fact, you fired every single projectile from that clip. Because when the police came, that weapon was reloaded with another clip. So you knew enough about the weapon to know how to reload it.
The Court is extremely troubled by that. Things could have been handled a different way, they weren’t. I am not trying to get into those facts. You could have called 911 of the police when this individual showed up at your residence. You didn’t do that. I think that’s a lapse in judgment.
⅜ ⅜ ⅜ ⅜
Therefore, it is going to be the sentence of this Court, and as I do so, as I did in the sentencing, I refer back to the sentencing guidelines, and I know, under this, the sentence can be anywhere from twenty to eighty years without benefit of parole (sic) or suspension of sentence; but as I said at this time, you created an undue risk, or, in my opinion, that risk was in that neighborhood in which you fired multiple shots. And what makes it even worse is that it was your own neighborhood and you’re familiar with all of your neighbors, where people that were living across the street, there were kids in that particular area, I believe that you are in need of custodial correctional environment which will be provided by this multiple bill sentencing, and that any lesser sentence would deprecate the seriousness of this offense, and that the multiple gun shots resulted to cruelty to that victim in which he shot multiple times.

|14As a second felony offender, defendant faced a possible sentencing range of 20 to 80 years imprisonment. LSA-R.S. 15:529.1(A)(1)(a). Defendant received an 80-year sentence. Courts have upheld the maximum sentence of 80 years in similar cases.

In State v. Walker, 99-2868 (La.App. 4 Cir. 10/18/00), 772 So.2d 218, 221, the defendant confessed to strangling a woman with whom he had smoked crack, after she allegedly began hitting and pushing him when he informed her he had no more money or crack. The defendant, who was tried for second degree murder, was found guilty of the lesser offense of manslaughter and sentenced, as a second offender, to 80 years imprisonment, the maximum allowed under the law. Walker, 99-2868 at 2, 10, 772 So.2d at 220, 224. The defendant’s only prior conviction was for theft valued at more than five-hundred dollars, though he had a lengthy history of arrests. Id. at 11, 772 So.2d at 224. The Fourth Circuit affirmed the 80-year sentence.

In State v. Johnson, 09-0706 (La.App. 4 Cir. 5/26/10), 41 So.3d 1188, 1198, the defendant was found guilty of manslaughter and sentenced, as a second-felony offender, to 80 years at hard labor. In sentencing the defendant to the maximum sentence, the trial court stated that it had considered the sentencing guidelines of LSA-C.Cr.P. art. 894.1, and found that the defendant was in need of incarceration. Id. at 32, 41 So.3d at 1208. The trial court also cited his reasons for imposing the sentence. Johnson, 09-0706 at 33, 41 So.3d at 1209. In reviewing and affirming the defendant’s habitual offender sentence, the Court found that although the sentence imposed on the defendant was severe and there was no indication that he had a record of any previous violent offense, the maximum sentence of 80 years could not be said to be grossly disproportionate to the severity of the crime or the purposeless imposition of pain and suffering. Id. at 35-36, 41 So.3d at 1210.

See also State v. Kelson, 09-0204 (La.App. 4 Cir. 6/9/10), 40 So.3d 1194, writ denied, 10-1575 (La.1/14/11), 52 So.3d 901.

It is recognized, as noted by the defendant, that there are similar cases in which the court has found both that lesser sentences imposed on second offenders for manslaughter were not constitutionally excessive and in which lesser sentences have been found to be excessive. However, it is the duty of this Court to determine whether the trial court abused its broad sentencing discretion based on the facts of the present case. State v. Jones, 99-2207, p. 3 (La.1/29/01), 778 So.2d 1131, 1133. While another judge might have weighed the circumstances in this case differently, the question on review is whether the trial judge abused his discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959. Thus, the sentence in this case should only be set aside as excessive if the trial judge abused his broad sentencing discretion by imposing a grossly disproportionate term of imprisonment.

Based on the facts of the instant case, we cannot say that the trial judge abused his sentencing discretion. Defendant was charged with second degree murder and found guilty of manslaughter. Defendant did not deny killing the victim, but rather claimed that he acted in self-defense. By finding defendant guilty of manslaughter, it is clear that the jury did not believe that the homicide was justified. Moreover, the trial judge clearly articulated his reasons for sentence, which show adequate compliance with LSA-C.Cr.P. art. 894.1. As noted by the trial judge, the deceased was unarmed and defendant created a risk of death or great bodily harm to more than one person. Finally, the evidence indicates that the defendant shot the deceased several times in the back, which the trial court found particularly troubling.

h (Although the sentence imposed on defendant is severe and defendant does not have a lengthy prior record or a record of violent offense, we cannot say that the sentence is “nothing more than the purposeless imposition of pain and suffering” or is “grossly disproportionate to the severity of the crime.” Accordingly, because we find that it is not excessive, we affirm defendant’s sentence of 80 years. This assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were noted. However, we note that defendant filed a motion for new trial based on newly discovered evidence, pursuant to LSA-C.Cr.P. art. 851(3), on November 9, 2009. Although a hearing on the motion was originally set for January 4, 2010, the trial court granted defendant’s motion for appeal on November 17, 2009, prior to the scheduled hearing. A minute entry dated August 18, 2010, contains the following notation regarding defendant’s motion for new trial: “Motion moot — not this court jurisdiction.” Thus, it does not appear that the trial court has made a substantive ruling on defendant’s motion for new trial.

Accordingly, while we affirm both defendant’s conviction and sentence, we remand this matter to the trial court for a hearing on defendant’s motion for new trial, reserving him the right to -appeal an adverse ruling on this motion. See State v. Abbott, 29,497, p. 11 (La.App. 2 Cir. 6/18/97), 697 So.2d 636, 642, writ denied, 97-1929 (La.1/9/98), 705 So.2d 1097; and State v. Vampran, 491 So.2d 1356, 1367 (La.App. 1 Cir.1986), twit denied, 496 So.2d 347 (La.1986).

117DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed, and the matter is remanded for a hearing on defendant’s motion for new trial.

AFFIRMED; REMANDED.

      . LSA-R.S. 14:31 provides, in pertinent part:
      A. Manslaughter is:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
      (2) A homicide committed, without any intent to cause death or great bodily harm, (subparts omitted).


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Ryan O. HARRIS.
    No. 10-KA-492.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Ryan 0. Harris, Homer, LA, for Defendant/Appellant In Proper Person.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

^Defendant was charged with one count of distribution of marijuana in violation of La. R.S. 40:966(A) and one count of distribution of cocaine in violation of La. R.S. 40:967(A). He pled not guilty and filed several pre-trial motions, including a motion to suppress identification which the trial court denied after a hearing. Defendant proceeded to trial on February 24, 2010, and a unanimous 12-person jury found defendant guilty as charged on both counts. The trial court sentenced defendant to 25 years at hard labor on each count to run concurrently. The trial court ordered the first two years of defendant’s sentence on count two, distribution of cocaine, be served without benefit of parole, probation, or suspension of sentence.

The State subsequently filed a multiple offender bill of information, using count two as the underlying offense, alleging defendant was a third felony offender. After a hearing, the trial court determined defendant was a third felony offender. The trial court then vacated defendant’s original sentence on count two | .¡and imposed an enhanced sentence of 30 years at hard labor, to run concurrently with the sentence imposed on count one, distribution of marijuana. The multiple offender proceedings are not part of the instant appeal.

Defendant files this appeal contending his 25-year sentence for distribution of marijuana is excessive. In a pro se brief, defendant claims he received ineffective assistance of counsel. For the reasons that follow, we affirm.

FACTS

This case arises from two undercover narcotics transactions that took place in Jefferson Parish in an area that was being targeted by police because of complaints of narcotics activity.

The first transaction occurred on August 24, 2009. On that date, undercover agent Kris Summers, of the Jefferson Parish Sheriffs Office, went to the area around the D & A Food Store in the 2600 block of the Westbank Expressway in Harvey. Once she arrived at this location, she approached a black male, later identified as defendant, and asked him for a “twenty,” which is street slang for twenty dollars’ worth of illegal narcotics. Defendant handed Agent Summers two clear plastic bags of green vegetable matter, and Agent Summers, in turn, gave defendant twenty dollars in prerecorded funds. This transaction was captured on the recording equipment in Agent Summers’ vehicle. The video of the transaction was played for the jury at trial, and Agent Summers testified that the recording accurately reflected the transaction on August 24, 2009.

After Agent Summers completed the buy, she left the area, signed onto the radio, and gave a description of the transaction as well as the suspect. She then met with investigating officers to turn over the evidence. The substance was field tested, and it proved positive for the presence of marijuana. Additionally, Thomas | ¿Angelica, an expert in the testing, analysis, and identification of controlled dangerous substances, testified he analyzed the green vegetable matter and that it was in fact marijuana. He further stated the gross weight of the marijuana, including the bag it was in, was 3.89 grams.

The second transaction occurred on August 25, 2009. On that date, undercover agents Linda Roberts and Juan Castro, of the Jefferson Parish Sheriffs Office, proceeded to the same location in Harvey. When they arrived at the targeted area, Agent Roberts, the driver of the vehicle, called defendant over to her vehicle and asked him for a “twenty.” Defendant apparently did not have the drugs on him, so he left the area and then came back. Defendant approached the passenger side of the vehicle and reached over Agent Castro to conduct the transaction. Defendant handed Agent Roberts some crack cocaine, and, in exchange, she gave defendant twenty dollars in prerecorded funds. This transaction was captured on the recording equipment in Agent Roberts’ vehicle, and the recording was played for the jury at trial. Agent Roberts testified that the recording accurately depicted the narcotics buy on August 25, 2009. In addition, Agent Castro testified that the recording accurately depicted “what he participated in” on August 25, 2009.

Once Agent Roberts departed the area, she gave a description to the officers who were monitoring the transaction. She then met with the case officer and gave him the substance to be field tested and logged as evidence. A field test of the substance proved positive for the presence of cocaine. Additionally, Mr. Angelica testified the off-white material in the evidence bag contained cocaine and that the gross weight of the cocaine was .09 grams.

Agent Castro testified at trial that he witnessed the August 25, 2009 transaction. He stated he observed a black male, wearing a blue bandana and a 15blue shirt with green and white stripes, hand Agent Roberts narcotics, and he observed Agent Roberts give defendant money.

Sergeant Joseph Williams, assistant group supervisor in narcotics, viewed the recordings of the transactions, and recognized defendant because they were raised in the same neighborhood. On August 26, 2009, Sergeant Williams, accompanied by another officer, went to the location where the transactions occurred, stopped defendant, and conducted a field interview. Thereafter, a six-person photographic lineup was prepared.

A few days later, on August 31, 2009, the three undercover officers involved in the transactions were shown the photographic lineup. Each officer positively identified defendant in the photographic lineup as the individual from whom the narcotics were purchased. After these positive identifications were made, an arrest warrant for defendant was prepared.

LAW & ANALYSIS

Excessive Sentence

Appellate counsel’s sole assignment of error is the excessiveness of defendant’s 25-year sentence on count one, distribution of marijuana. The sentencing range for distribution of marijuana is five to 30 years. La. R.S. 40:966(B)(3). Counsel argues that defendant’s upper-end sentence was excessive considering the small amount of marijuana sold. Counsel claims the evidence shows at best that defendant was a small time operator, not a “dope dealer” worthy of a near maximum penalty. Counsel further suggests defendant was given such a lengthy sentence because he was being punished for not agreeing to plead guilty.

|fiThe Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311, p. 5 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109. In reviewing a sentence for ex-cessiveness, 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 court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the appellate court will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry, 08-151, p. 10 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17.

At the sentencing hearing, the trial judge stated he had considered the guidelines of La.C.Cr.P. art. 894.1. He noted he was most troubled by defendant’s criminal history, which included burglary, unauthorized entry, and battery on a police officer. The trial judge explained that this history was serious because the crimes involved risks to the health and safety of individuals.

We do not find the trial court abused its discretion in imposing a 25-year sentence upon defendant. The trial judge carefully considered the sentencing guidelines of La.C.Cr.P. art. 894.1 and clearly articulated on the record the reasons for the sentence imposed. We have upheld a similar sentence. See State v. Brown, 03-581, p. 11 (La.App. 5 Cir. 11/12/03), 861 So.2d 644, 655, writ denied, 03-3407 (La.4/2/04), 869 So.2d 875, where this Court upheld a 30-year sentence for a ^defendant convicted of possession with intent to distribute marijuana noting that the defendant was in possession of. a large amount of marijuana and had prior drug arrests.

Insofar as counsel suggests that defendant received such a severe sentence because he refused the plea bargain, this issue was not raised by objection at the time of sentencing or in defendant’s motion to reconsider sentence. Therefore, this issue is not properly before this Court. State v. Aleman, 01-743, p. 8 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066, writ denied, 02-0481 (La.3/14/03), 839 So.2d 26. Nonetheless, we have reviewed it and find no merit to the claim.

If a trial judge has agreed to impose a particular sentence pursuant to a plea bargain, this does not restrict him from imposing a more severe sentence if the defendant elects to go to trial and is convicted. The sentencing judge must nonetheless comply with constitutional standards, and the sentence should not be increased due to vindictiveness arising from the exercise of the defendant’s right to stand trial. A judge’s disposition to impose a lenient sentence during plea discussions should not be understood as setting a limit for the justifiable sentence under accepted principles of criminal justice. State v. Frank, 344 So.2d 1039, 1045 (La.1977); State v. Aleman, 01-743 at 13; 809 So.2d at 1066.

In Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978), the United States Supreme Court stated:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutor’s offer.
While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these | Rdifficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. [Citations omitted.]

In State v. Henderson, 94-286, p. 6 (La.App. 5 Cir. 12/14/94), 648 So.2d 974, 978, this Court, citing Bordenkircher, rejected the defendant’s claim that his sentence was vindictive. The defendant in Henderson rejected a plea bargain of a six-and-a-half year sentence, went to trial, and received an 18-year sentence following conviction. This Court noted that the defendant chose not to accept the plea bargain offered by the State, thereby taking the risk of a greater penalty upon conviction. Thus, the Court concluded that defendant’s sentence was not vindictive.

Likewise, in the present case, defendant was given the option of accepting or rejecting the State’s offer, and he chose to reject it. There is nothing in the record to indicate that the sentence imposed on defendant was vindictive. Thus, we find the sentence imposed on defendant was not constitutionally excessive or vindictive.

Ineffective Assistance of Counsel

In his pro se appellate brief, defendant claims that his counsel was ineffective. After setting forth the general standard for judging ineffectiveness of counsel claims, defendant lists 22 alleged errors, many of which do not even relate to ineffective actions by counsel. In setting forth his claims, defendant does not point to any specific errors but merely makes conclusive statements without offering any argument or supporting authority.

All specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error not | gbriefed. See Uniform Rules — Courts of Appeal, Rule 2-12.4. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Knight, 09-359, p. 16 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 324.

In State v. Fernandez, 03-987, p. 6 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770, this Court found that the defendant failed to brief his position where he merely asserted his position, but failed to include argument or supporting legal citation. This Court found that the assertions presented nothing for review on appeal.

Likewise, in the present case, we find that with regard to all 22 of defendant’s listed claims, there is nothing for this Court to review. Defendant merely asserted his position without argument or supporting legal citation. Further, with regard to defendant’s claims that actually relate to ineffectiveness of counsel, we find they are more properly raised in an application for post-conviction relief rather than by direct appeal because the record does not contain sufficient evidence to fully explore defendant’s claims. See State v. Allen, 06-778, p. 7 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 751, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754.

In particular, several of defendant’s claims appear to relate to the adequacy of his defense. In claim one, without alleging specifics, defendant asserts that he was not provided an adequate defense. This claim seems to refer to his belief, seemingly stated in claim 20, that counsel should have argued entrapment at trial because the officers actually called him over to the car and initiated the drug transactions with him. Defendant again seems to assert his general allegation that he received an inadequate defense in claim 22, where he stated the video of one of|10the transactions did not show his face and did not show any money or cocaine exchange hands. These claims potentially relate to counsel’s trial strategy.

This Court has held that ineffectiveness of counsel relating to trial strategy cannot be determined by review of the record on appeal, but rather such a claim must be asserted by application for post-conviction relief where the issue can be considered through an evidentiary hearing to determine, among other things, the defense strategy and whether the defendant himself was aware of the strategy and agreed to it. State v. Haynes, 09-109, p. 9 (La.App. 5 Cir. 2/9/10), 34 So.3d 325, 334, writ denied, 10-0493 (La.9/24/10), 45 So.3d 1073.

Additionally, defendant contends he was denied effective assistance of counsel because his counsel did not have enough time to prepare a defense (claim 2) because he was appointed to represent defendant only 38 days prior to the trial date (claim 6) and because his appointed attorney Williams only saw him one time before the trial date (claim 15). Defendant also appears to claim that counsel did not have enough time to file pre-trial motions before the scheduled motion hearing (claim 7).

In State v. F.B.A., 07-1526, p. 11 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, 1017, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138, defendant argued that his counsel was unprepared for trial and that he personally only had four days in which to prepare with his counsel prior to trial which was, in his opinion, very inadequate. In that case, the court noted that defendant’s trial counsel had almost two months to prepare for trial but nonetheless concluded that it could not address the preparedness issue on the appellate record, and that the issue would be better relegated to post-conviction proceedings where a full evidentiary hearing could be conducted. See also State v. Ford, 09-0392, pp. 5-6 (La.App. 4 Cir. 10/21/09), 24 So.3d 249, 253-254, writ denied, 09-2516 (La.4/30/10), 34 So.3d 280, where the |ncourt concluded that the record on appeal was insufficient to review the claim that counsel’s failure to consult with defendant prior to trial resulted in ineffective assistance of counsel, and thus, declined to rule on the merits of that claim on appeal.

In summary, we find defendant has failed support the claims stated in his pro se brief with argument and legal citations. Therefore, there is nothing for this Court to review. Furthermore, of the 22 stated claims that specifically relate to ineffective assistance of counsel, we find such claims are better raised in an application for post-conviction relief where an evidentiary hearing can be held if necessary.

We have reviewed the record for errors patent according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), and find no errors that require corrective action.

AFFIRMED

      . For purposes of this opinion, the officers involved in the drug buys will be referred to by their undercover names.

      . Defendant was apparently wearing the same clothes on August 24, the date of the first undercover transaction, August 25, the date of the second transaction, and August 26, 2009, the date defendant was stopped for a field interview.


text:
    STATE of Louisiana v. Landon HOSKINS.
    No. 10-KA-650.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Davidson S. Ehle, III, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gDefendant appeals the excessiveness of a ten year sentence for violation of LSA-R.S. 14:67 B from the 24th Judicial District Court. For the following reasons, we vacate the sentence and remand the matter to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On October 16, 2006, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Landon Hoskins, a teenager at that time, with theft of loud speakers valued at over $1,000.00 in violation of LSA-R.S. 14:67. The speakers were the property of T.H. Harris Middle School. Defendant was arraigned and pleaded not guilty. On June 12, 2007, Defendant withdrew his plea of not guilty and pleaded guilty as charged under LSA-C.Cr.P. art. 893. On that same date, the trial judge deferred Defendant’s sentence and placed him on active ^probation for two years. The commitment dated September 27, 2007, indicated that the trial judge revoked Defendant’s probation and sentenced him to “ten years.”

Approximately one year later, on September 22, 2008, Defendant filed a motion to reconsider sentence that was denied on October 6, 2008. Defendant also filed a motion for an out-of-time appeal on November 24, 2008, that was denied. On January 9, 2009, he filed an application for post-conviction relief seeking an out-of-time appeal, which was granted.

In his first appeal, Defendant argued that: 1) the trial court imposed an excessive sentence; 2) the trial court erred by failing to consider mitigating factors pursuant to LSA-C.Cr.P. art. 894.1; and, 3) the trial court erred by denying his motion to reconsider sentence. State v. Hoskins, 09-476, p. 2 (La.App. 5 Cir. 4/27/10); 40 So.3d 199, 200. This Court dismissed Defendant’s appeal as premature because the transcript of the revocation hearing ended without the trial court explicitly revoking Defendant’s probation. Id., 09-476 at 5, 40 So.3d at 202. This Court remanded this case to the trial court with instructions to complete the revocation proceedings or to supplement the record with transcripts of all revocation proceedings subsequent to September 27, 2007. Id. This Court further stated that, in the event that no revocation proceedings were held subsequent to September 27, 2007, the trial court was free to make a factual finding that the record was complete in addition to completing the proceedings. Id. This Court also reserved Defendant’s appellate rights. Id.

On May 13, 2010, the trial judge signed an order supplementing the record with the complete transcript from the September 27, 2007 hearing. The trial judge |4stated in his order that the transcript indicated that Defendant stipulated to the revocation of his probation, and that the trial court then revoked Defendant’s probation and sentenced him to ten years in the Department of Corrections with a boot camp recommendation. On June 21, 2010, Defendant filed a second motion for appeal, which was granted. The instant appeal follows.

Because Defendant pleaded guilty, there are few facts contained in the record. The bill of information alleges that, on October 2, 2006, Defendant and two co-defendants violated LSA-R.S. 14:67 in that they committed theft of loud speakers valued at over $1,000.00 belonging to T.H. Harris Middle School.

ISSUES

On appeal, Defendant raises the following issues: 1) whether the imposition of a ten year sentence constitutes cruel, excessive, and unusual punishment in violation of Article I, Section 20 of the Louisiana Constitution in light of the circumstances presented in this case; 2) whether the trial court adequately considered the mitigating factors outlined in Article 894.1 of the Code of Criminal Procedure; 3) whether the trial court adequately stated for the record the consideration taken into account and the factual basis for imposing a ten year sentence in this case; and, 4) whether the trial court erred in denying the Motion to Reconsider Sentence was correct.

LAW AND ANALYSIS

Assignment of Error # 1

Defendant contends that imposition of the maximum sentence of ten years at hard labor is clearly excessive considering the nature of the offense and the nature | flof the offender. He asserts that no court has ever sentenced a first offender convicted of theft over $500.00 to ten years at hard labor.

The State responds that the ten-year sentence was within the statutory guidelines, and the trial court did not impose the discretionary fine. The State further responds that Defendant has not shown that the trial judge abused his discretion. Lastly, the State contends that the Motion to Reconsider Sentence was untimely, and therefore, it was not properly before the district court and should not be considered by this Court.

On August 29, 2007, the Probation and Parole Officer, Stephanie Moore, filed a “Motion and Order for Hearing to Revoke Probation.” On September 27, 2007, at the hearing on the rule to revoke and sentencing, the prosecutor asked for the basis of the rule. Ms. Moore testified that on July 20, 2007, Defendant came into her office and tested positive for marijuana. She said that Defendant was told to return on August 24, and when he did, Defendant provided “a false urine” test. Ms. Moore also stated that Defendant had not complied with his special conditions of obtaining a GED, and that he was associating with his co-defendant, James Wainwright, after being told not to do so.

Defense counsel asked the trial judge not to revoke Defendant’s probation, and that Defendant be given sanctions and have his probation extended, with a special condition that he receive drug treatment. The trial judge asked if this was the man who came in with the bottle of urine to take a drug test. When defense counsel responded affirmatively, the trial judge commented that this was not somebody who was “taking any of this seriously.” Defense counsel asked if the trial judge would recommend boot camp for Defendant. The trial judge asked for Defendant’s history, and the probation officer replied that this was Defendant’s first offense. Defense counsel reminded the trial judge that Defendant had stolen lasóme speakers from a school. The probation officer said she would recommend revocation with boot camp. The trial judge replied that the sentence would be ten years with a boot camp recommendation, if Defendant wanted boot camp. Defense counsel said he needed to talk to Defendant.

Defense counsel subsequently advised the trial judge that Defendant had been advised of his rights to a hearing, that Defendant had acknowledged that he was going to waive those rights, and that he had violated the conditions of his probation. Defense counsel stated that it was his and Defendant’s understanding that the trial judge was going to sentence Defendant to ten years and recommend boot camp. Defense counsel also stated, “I just wanted to withhold the opportunity to revisit this in the event that the ten years is too much.” Defense counsel explained that he did not think it was because that was the new law, “but I don’t want to have the point that that would keep him out of boot camp.” Defense counsel said with that understanding, Defendant was willing to acknowledge that he violated the conditions of his probation.

The trial judge replied that based on Defendant’s actions leading up to this rule to revoke, it would be hard for him to consider anything below ten years. He stated that the only reason he was considering boot camp was because of Defendant’s age. The trial judge said that if Defendant ever got out of prison, then boot camp would hopefully help him. He remarked that was Defendant’s “one last break,” and that he hoped Defendant would take advantage of it. The trial judge further stated that if Defendant did not “take this one seriously,” he would be “doing ten.” Based on the stipulation, the trial judge revoked Defendant’s probation and sentenced him to ten years in the Department of Corrections with a boot camp recommendation.

| -Approximately one year later on September 22, 2008, Defendant filed a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1. In his motion, Defendant stated that he was sentenced on June 12, 2007 to two years of active probation. He further stated that his probation had been revoked, and that he had been sentenced to ten years in the Department of Corrections. Defendant noted that the trial court had recommended that he enroll in a Boot Camp or Impact Program, but that he had been on medication for learning disabilities and mental disorders which kept him from completing and continuing the Intensive Incarceration Program at Elayn Hunt Correctional Center. As such, Defendant asked the trial court to reconsider his sentence.

On October 6, 2008, the trial court denied Defendant’s Motion to Reconsider Sentence, stating:

The defendant, through counsel, requests that the court [sic] to reconsider his sentence, as he is ineligible for Boot Camp/Impact programs in the department of corrections.
A procedural bar to relief is LSA-C.Cr.P. art. 881, which provides that a sentence cannot be amended once the defendant has begun serving that sentence. Under the provisions of LSA-C.Cr.P. art. 881, the trial court can only amend a felony sentence which is ordered without hard labor.
The court notes that the Waiver of Constitutional Rights form reflects that the court will recommend the Boot Camp program but that the guilty plea was not contingent on such placement. The court’s recommendation to Boot Camp/Impact programs is merely a recommendation, as this court has no authority or jurisdiction in how defendant’s sentence is to be served once he is in the custody of the Department of Corrections.
Upon review, the court finds the defendant is not entitled to the relief sought.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or | scruel punishment. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992). The three factors considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by the same court and other courts. State v. Richmond, 97-1225, p. 6 (La.App. 5 Cir. 3/25/98); 708 So.2d 1272, 1275, citing, State v. Telsee, 425 So.2d 1251 (La.1983). The trial judge has wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Thompson, 02-333, p. 10 (La.4/9/03); 842 So.2d 330, 338. Generally, the maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Pearson, 07-332, p. 16 (La.App. 5 Cir. 12/27/07); 975 So.2d 646, 656.

At the time of the commission of the crime in October of 2006, the penalty for the commission of a theft when the misappropriation or taking amounted to a value of $500.00 or more was imprisonment, with or without hard labor, for not more than ten years, and a possible fíne of not more than $3,000.00, or both. LSA-R.S. 14:67 B(1). The trial judge imposed the maximum ten-year sentence in the Department of Corrections upon Defendant, but he did not impose a fíne.

It is noted that in 2010, the Louisiana Legislature amended the penalty provisions for theft. LSA-R.S. 14:67 B(1) now provides whoever commits the crime of theft when the misappropriation or taking amounts to a value of $1,500.00 or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than $3,000.00, or both. LSA-R.S. 14:67 B(2) now provides that when the misappropriation or taking amounts to a value of $500.00 |flor more, but less than a value of $1,500.00, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than $2,000.00, or both.

Nevertheless, it is well established that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti, 01-3407, p. 4 (La.6/21/02); 820 So.2d 518, 520; State v. Bellow, 08-259, p. 20 (La.App. 5 Cir. 7/29/08); 993 So.2d 307, 318, writ denied, 08-2109 (La.4/13/09), 5 So.3d 162. The Louisiana Supreme Court has held that the “mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute.” State v. Oliver, 03-416 (La.App. 5 Cir. 12/29/09); 30 So.3d 946, 953, writ denied, 10-0271 (La.9/17/10), 45 So.3d 1041, citing, State v. Narcisse, 426 So.2d 118, 130 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983).

Courts have upheld ten-year sentences for defendants convicted of theft of $500.00 or more: See State v. Daigle, 96-782, pp. 1-4 (La.App. 5 Cir. 1/28/97); 688 So.2d 158, 159-60, writ denied, 97-0597 (La.9/5/97); 700 So.2d 506 (this Court found that a sentence of ten years at hard labor was not excessive for a corporate accountant who embezzled an estimated $600,000.00 over a ten-year period, even though defendant had no prior felony convictions and made partial restitution to the victims); State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir.1991), writ denied, 620 So.2d 833 (La.1993) (the Third Circuit upheld a ten-year sentence at hard labor for the defendant who committed theft of approximately $120,000.00, noting that the presentence investigation report established that defendant had a lengthy criminal record involving theft and issuance of worthless checks); State v. Madison, 535 So.2d 1024, 1033-34 (La.App. 2 Cir.1988) (the | mSecond Circuit found imposing the maximum sentence of ten years imprisonment for theft was not unconstitutionally excessive, where the defendant had an extensive record of repetitive conduct of stealing and shoplifting and had not responded to previous correctional treatment); and, State v. Morris, 525 So.2d 1247, 1248 (La.App. 1 Cir.1988) (the First Circuit found that the maximum sentence of ten years imprisonment at hard labor was not excessive for the defendant who was convicted of felony theft, noting that defendant had a lengthy criminal record).

However, in State v. Fontenot, 01-0540 (La.App. 3 Cir. 11/7/01); 799 So.2d 1255, the Third Circuit found a ten-year sentence excessive. In that case, the defendant systematically appropriated monies over a nine-year period from her employer in the amount of $54,833.85. She pled guilty to theft of currency in excess of $500.00 and was sentenced to ten years at hard labor, with three years suspended, and five years active probation. She had no prior criminal record, and she claimed she was in a position to pay a substantial part of the restitution within a short period of time. The Third Circuit found that sentence excessive, noting that this crime did not involve the most serious violation of the offense nor was defendant the worst type of offender. Id., 01-0540 at 1-8, 799 So.2d at 1256-60.

In the instant case, Defendant, along with two co-defendants, stole loud speakers from a school valued at over $1,000.00, property that was worth significantly less than the estimated $600,000.00 that was taken in Daigle and $120,000.00 taken in LeBlanc. Defendant did not have a erimi-nal record, unlike the defendants in LeBlanc, Madison, and Monis. As such, we do not find that the maximum sentence is warranted in this case, since it does not involve the most serious violation of the offense charged nor the worst type of offender.

11tThe trial judge in this case appears to have imposed a maximum sentence because Defendant failed a drug test and then submitted a false urine sample for another one. Consequently, the trial judge thought that Defendant was not taking his situation seriously. Additionally, Defendant agreed to the ten-year sentence only if the trial judge recommended the boot camp program. Although the trial judge recommended it, the motion to reconsider sentence indicates that Defendant is unable to participate in that program because he must take medication. As a result, we conclude the ten-year sentence for this Defendant is a purposeless infliction of pain and find the trial court did abuse its discretion in imposing the sentence.

Because Defendant is not the worst type of offender, we are of the opinion that the trial court should consider a sentencing range between two to four years for Defendant’s conviction. Other courts have issued and upheld similar sentences for thefts over $500.00. For example, in State v. Wilson, 30,880 (La.App. 2 Cir. 8/19/98); 718 So.2d 546, the court upheld a two-year hard labor sentence for felony theft conviction despite the fact that the Defendant had a previous conviction for a theft-related offense. Additionally, in State v. Butler, 41,982 (La.App. 2 Cir. 5/2/07); 968 So.2d 175, the court upheld a sentence of four' years at hard labor for felony theft in excess of $500.00, where the defendant had a substantial misdemeanor criminal history for theft-related offenses. Accordingly, a sentence between the range of two to four years seems appropriate for the Defendant in the instant case.

In light of the circumstances of this case and the jurisprudence, we find that a ten-year sentence under these circumstances is excessive. The sentence is vacated, and the case is remanded for resentencing. The other issues raised by Defendant in his brief are now moot.

112DECREE

Defendant’s sentence is vacated, and the matter is remanded to the trial court for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING

      .At the time of the commission of the offense in October of 2006, the maximum grade for the crime was theft in the amount of $500.00 or more. LSA-R.S. 14:67 B(1). At that time, there was no separate category for theft of property valued over $1,000.00. Therefore, theft of property valued over $500.00 applies in this case. State v. Ramsdell, 06-644, p. 2 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 513. However, it is noted that LSA-R.S. 14:67 was amended by the Louisiana Legislature in 2010 to change the penalty provisions for theft.

      . LSA-C.Cr.P. art. 893 was amended by the Louisiana Legislature in 2010; however, those amendments do not change the analysis herein.

      . The trial judge also ordered defendant to comply with general and special conditions of probation.

      . LSA-C.Cr.P. art. 894.1 was amended by the Louisiana Legislature in 2010; however, those amendments do not change the analysis herein.

      . Although the Defendant pleaded guilty as charged, we are reviewing Defendant’s sentence on appeal because the record does not reflect that a specific sentence or a sentencing cap was set forth at the time of the acceptance of the plea agreement and sentencing pursuant to the plea agreement. See State v. Bolton, 02-1034, p. 10 (La.App. 5 Cir. 3/11/03); 844 So.2d 135, 142; State v. Young, 96-0195, p. 5 (La.10/15/96); 680 So.2d 1171, 1174, rehearing denied, (La.11/15/96).

      . Contrary to the order, the waiver does not indicate that the court would recommend the Boot Camp program.