author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Jean U. BOITEUX.
    No. 11-KA-191.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12This is Jean U. Boiteux, defendant/appellant’s, second appeal. In his first appeal, Mr. Boiteux’s conviction and five-year hard labor sentence for second degree battery, La.R.S. 14:34.1, were affirmed. State v. Boiteux, 10-1017 (La.App. 5 Cir. 8/30/11), 74 So.3d 731. Mr. Boiteux now appeals his enhanced nine-year hard labor sentence without benefit of probation or suspension of sentence. He assigns one error: The State failed to meet its burden of proving that the predicate felony used for enhancement fell within the 10-year “cleansing period.” He argues that the State sought to prove this by inadmissible hearsay. For the reasons that follow, we affirm.

Procedural History/Facts

In the prior appeal, this Court found no merit to Mr. Boiteux’s assignments challenging sufficiency of the evidence and ex-cessiveness of his five-year sentence. Finding no merit to the assignment regarding sufficiency, we summarized the pertinent facts and found:

| JAJfter viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found that the State presented the essential elements of aggravated battery beyond a reasonable doubt.
Here, the State presented evidence that defendant intentionally used violence on Ms. Cleronay by striking her with a metal pipe and a leather belt, i.e., a dangerous weapon. Furthermore, the State presented evidence that defendant intentionally administered a noxious substance, i.e. pepper spray, to Ms. Cleronay. Based on our finding that the evidence was sufficient to support aggravated battery, this court will not reverse defendant’s conviction of second degree battery.
State v. Boiteux, 10-1017, p. 5 (La.App. 5 Cir. 8/30/11), 74 So.3d 731.

A few months after his conviction and original sentencing, the State filed a habitual offender bill of information alleging that Mr. Boiteux was a second felony offender based upon prior felony convictions in Florida for violations of aggravated assault with a deadly weapon, aggravated battery with great bodily harm, and aggravated stalking. After the original sentence, but before the State filed the habitual offender bill, Mr. Boiteux filed a response objecting to the arrest documentation. He also objected generally to the evidence the State sought to introduce without particularizing the basis for the objection. After the State filed the bill, Mr. Boiteux filed two motions for discovery, asking for copies of the evidence the State intended to introduce. Defense counsel was evidently prompted to file the premature response because as early as the original sentencing hearing, defense counsel and Mr. Boiteux were aware that the State intended to file a bill relying on the Florida predicate because, at that sentencing hearing, Mr. Boiteux rejected a plea offer to the bill.

14A multiple bill hearing was held on February 3, 2011, at the conclusion of which the trial judge found Mr. Boiteux to be a second felony offender. Mr. Boiteux’s original sentence was vacated, and he was re-sentenced to nine years imprisonment in accordance with the mandatory minimum sentence provided for by the Habitual Offender Statute. This timely appeal followed.

The Hearing

At the habitual offender hearing, the State presented the testimony of Donna Quintanilla, a Latent Print Examiner for the Jefferson Parish Sheriffs Office, who was accepted as an expert by joint stipulation of the State and the defense. Ms. Quintanilla identified State’s Exhibit 1 as the fingerprints she took from Mr. Boiteux in court that day.

The State further produced Exhibit 2, a certified copy of an Arrest Print Card created in conjunction with Mr. Boiteux’s arrest for the instant conviction, second degree battery, which Ms. Quintanilla certified as a true reproduction. Ms. Quin-tanilla also examined State’s Exhibit 3, a certified document that included fingerprints taken in connection with Mr. Boi-teux’s convictions in Florida. Ms. Quin-tanilla concluded that the fingerprints from all three exhibits were made by the “same person, same finger, to the exclusion of all others.”

The State next called Salvador Sparacel-lo, an Investigator for the Jefferson Parish District Attorney’s Office. Mr. Sparacello testified that he was asked by the Jefferson Parish District Attorney’s Office to contact the Miami Dade Clerk of Court to obtain Mr. Boiteux’s release date resulting from a conviction and revocation in Florida. The Clerk of Court for Miami Dade through Diane Catavina told him that Mr. Boiteux was released on July 8, 1999. Ms. Catavina advised Mr. Sparacello to contact the Miami Dade Correctional Center seeking | .^information on Mr. Boiteux’s release. Mr. Sparacello then spoke with Deputy Betty Martin who informed him that Mr. Boiteux’s release date was July 8, 1999. Ms. Martin also sent Mr. Sparacello a Miami Dade Correctional Center form by email listing that date as the latest release date. State’s Exhibit 12, which was admitted into evidence without objection from defense counsel, contains the initial correspondence that Mr. Sparacello sent to the Miami Dade Clerk of Court requesting the information on Mr. Boiteux’s release date. The Clerk’s office responded to this query by an email dated December 17, 2010. State’s Exhibit 12 also contains a separate email from Betty Martin with a PDF attachment that indicated a release date for Mr. Boiteux of July 8,1999. Mr. Sparacel-lo testified that Deputy Martin told him that the PDF attachment to the email was a copy of the information that was in the Miami Dade Jail System.

After the hearing, the court found that the State met its burden of proving that Mr. Boiteux was a second felony offender. “Cleansing Period”

The Habitual Offender Law provides that it is inapplicable where more than ten years have elapsed between the date of the commission of the current offense and the expiration of the maximum sentence of the previous conviction. La. R.S. 15:529.1(C). Mr. Boiteux contends in his sole assignment of error that the State failed to prove that less than ten years had elapsed from the time when he was convicted of the 1997 predicate felony and the commission of the subsequent |fioffense. Specifically, he argues that nothing in the documents presented by the State prove that he received a release date from state supervision for his previous Florida convictions within the ten-year “cleansing period.” Mr. Boiteux concludes that without proof of the actual date of discharge from state supervision, it was error for the trial court to find that he was a second felony offender.

Although Mr. Boiteux filed a written response to the habitual offender bill of information, he did not raise this objection in the response or during the habitual offender hearing. Ordinarily, the issue would not be properly preserved for appellate review. See: La.R.S. 15:529.1(D)(l)(b) (Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.). However, since the sufficiency of proof of the “cleansing period” bears on the defendant’s due process rights, we review the issue on appeal as an error patent. State v. Mosley, 08-1319, p. 9 (La.App. 5 Cir. 5/26/09), 16 So.3d 398, 403. Therefore, we will address the issue.

The State bears the burden of proving that the predicate convictions fall within the “cleansing period” prescribed by La.R.S. 15:529.1(C). State v. Metoyer, 612 So.2d 755, 758 (La.App. 5 Cir.1992). See also State v. Hollins, 99-278, p. 21 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 685, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587. This ten-year “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311, 314 (La.1977); State v. Thomas, 04-1341, p. 15 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 906, writ denied, 05-2002 (La.2/17/06), 924 So.2d 1013. Thus, the commencement of the “cleansing period” is from the date of discharge from state supervision, because the discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation or good time credit, or it could take place later because of parole | revocation. State v. Humphrey, 96-838, p. 13 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35. However, if less than the “cleansing period” has elapsed between a defendant’s conviction on a predicate felony and his commission of a subsequent predicate felony, the State need not prove the date of discharge on the earlier sentence in the habitual offender proceedings. State v. Brooks, 01-864, p. 12 (La.App. 5 Cir. 1/29/02), 807 So.2d 1090,1101 (citations omitted).

The certified Florida Court records show that on November 24, 1997, Mr. Boi-teux entered a plea of nolo contendré and the trial court placed him on three-years’ probation subject to certain conditions with early termination after two years. Thus, it cannot be determined on the face of the certified court record when Mr. Boiteux was released from the state’s supervision. In this case, more than the ten-year “cleansing period” had elapsed between Mr. Boiteux’s conviction on the 1997 predicate felonies and his commission of the subsequent offense. Thus, the State was required to prove that the underlying offense was committed within ten years of Mr. Boiteux’s release from state custody for the predicate convictions in case 96-41470 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.

The State argues that Mr. Sparacello’s testimony established that he was provided both verbal and written confirmation by the Miami Dade Clerk of Court’s Office regarding Mr. Boiteux’s release of July 8, 1999, after his Florida convictions. The State further points out Mr. Sparacello’s testimony that he spoke with Deputy Martin of the Miami Dade Correctional Center, who sent him an email with a PDF attachment containing information from the Criminal Justice System that indicated Mr. Boiteux was released from Florida custody on July 8,1999.

Is At the habitual offender hearing, the State produced certified copies of the bill of information in case number 96-41470 (State’s Exhibit 8), and a minute entry detailing Mr. Boiteux’s plea of nolo conten-dré (State’s Exhibit 3). Mr. Boiteux was given a sentence of three years of probation on November 24,1997 (State’s Exhibit 10). His probation was revoked on September 29, 1998, and he was sentenced to 364 days to be served in Dade County, Florida (State’s Exhibits 10 and 11). State’s Exhibit 12, which was admitted into evidence without objection, indicates that Florida’s Justice Information System shows July 8, 1999, as the date that Mr. Boiteux was released from incarceration. The underlying offense was committed on December 19, 2008, which is clearly within the ten-year “cleansing period” prescribed by La. R.S. 15:529.1(C).

Mr. Boiteux contends that Mr. Sparacello’s testimony about what he was told pertaining to Mr. Boiteux’s release date by the Miami Dade Clerk of Court’s office was hearsay. However, the record shows that the defense did not object to Mr. Sparacello’s testimony or to Exhibit 12 introduced in conjunction with his testimony. Objections not made at the time of their occurrence are waived on appeal. State v. Favors, 09-1034, p. 13 (La.App. 5 Cir. 6/29/10), 43 So.3d 253, 261, writ denied, 10-1761 (La.2/4/11), 57 So.3d 309. Furthermore, as noted by the Louisiana Supreme Court, in the ordinary case, hearsay evidence not objected to constitutes substantive evidence. State v. Dabney, 02-0934, p. 6 (La.4/9/03), 842 So.2d 326, 330 (per curiam).

The uncontroverted evidence admitted at the habitual offender proceeding without objection, as well as testimony by the State’s witness, established that Mr. Boiteux was discharged from Florida’s custody on July 8, 1999. The underlying offense was committed on December 19, 2008, which is clearly within the ten-year Iscleansing period prescribed by La.R.S. 15:529.1(C). Accordingly, the trial court did not err in finding Mr. Boiteux to be a second felony offender.

Error Patent

This Court previously conducted an error patent review in Mr. Boiteux’s first appeal and found one error that required proper notification of the prescriptive period for filing an application for post-conviction relief. State v. Boiteux, 10-1017, p. 6 (La.App. 5 Cir. 8/30/11), 74 So.3d 731. Mr. Boiteux is now only entitled to an error patent review of the habitual offender proceeding. See State v. Bolden, 04-1000, p. 6, n. 1 (La.App. 5 Cir. 3/1/05), 901 So.2d 445, 449, n. 1, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279. Upon review we find no error patent requiring corrective action.

Conclusion

Accordingly, for the foregoing reasons, the habitual offender finding and sentence are affirmed.

AFFIRMED

      . Violations of Florida Statutes 784.02l(l)(a) and 775.087(1).

      . Violations of Florida Statutes 784.045(l)(a)l and 775.087(l)(b).

      . Violations of Florida Statute 784.048(3).

      . According to Rule 2-1.14 of the Uniform Rules — Courts of Appeal, "[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ.” Thus, we have reviewed pertinent pleadings and transcripts contained in the record of the former appeal that are necessary to adequately review the issues raised in the instant appeal.

      .La.R.S. 15:529.1.

      . The State also entered into evidence State’s Exhibits 4, 5, 6 and 7, which were copies of the Florida statutes that Mr. Boiteux was convicted of violating. State's Exhibit 8, is a certified copy of the bill of information used in Mr. Boiteux’s prosecution in Florida. State's Exhibit 9, to which the defense objected as cumulative, was a copy of an Arrest Affidavit from Florida pertaining to his convictions there. State's Exhibit 10, admitted without objection, is a certified copy of a minute entry from Miami Dade County, which reflects that Mr. Boiteux pleaded guilty as charged to the alleged offenses. State’s Exhibit 11, objected to by the defense as cumulative, is a Florida judgment which shows that Mr. Boiteux's probation was revoked on September 29, 1998, and that he was sentenced to a term of 364 days. State's Exhibit 13, erroneously referred to by the prosecutor as Exhibit 12, was a computer generated timeline that the State compiled for the court for the purposes of considering the "cleansing period” at issue. The defense objected to the exhibit as cumulative. State's Exhibit 14 consisted of a copy of the Habitual Offender Bill alleged against Mr. Boiteux in conjunction with the proceedings. All of the State's exhibits were admitted by the trial court.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. German A. HERNANDEZ-ZUNIGA.
    No. 11-KA-378.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Douglas W. Freese, Trial Counsel, Lauren Dileo, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Appellant, German A. Hernandez-Zuniga.
    German A. Hernandez-Zuniga, Kinder, LA, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges his conviction and sentence for armed robbery. For the following reasons, we affirm his conviction and sentence.

Facts and Procedural History

Dreams Communications, located at 3226 Williams Boulevard, is a retail store specializing in cellular telephone equipment, international money transfers, and check cashing. On January 29, 2010, Carlos Liriano, the owner of Dreams Communications, and Cicelea Torres, one of his employees, were leaving the store for the night after closing.

Liriano was carrying a backpack containing approximately $60,000 in cash, which he planned to deposit at his bank that night. Liriano locked the door to the business and turned to help Torres move the garbage bin to the street when three men appeared from “right under the stairs” of his building. Two men grabbed Torres and a third man grabbed Liriano.

Liriano testified at trial that an individual “came from right under the stairs,” grabbed him, and put a gun to his neck. He stated that, as he was being pushed toward the alleyway, the individual grabbed his backpack then hit him with a gun. | ..¡Torres testified that one of the men pressed a gun against her body as two men pushed her towards the alleyway.

Liriano believed their lives were in danger so he withdrew his firearm and shot the armed man that grabbed him and one of the other suspects. Liriano kept watch for the third perpetrator and called the police.

Ms. Torres stated that she heard gunshots then opened her eyes to see that one of the robbers was dead in the alleyway. When she turned around, she saw another of the robbers lying on the ground next to her. As she watched him, he took off his mask and start speaking into his phone.

On January 29, 2010, Officer Jeff Mock-lin of the Kenner Police Department responded to a call for service at Dreams Communications. Upon arrival, Officer Mocklin saw a Hispanic male speaking frantically to another police officer while “waiving around a black pistol.” After the officers secured the man’s sidearm, the man reported that three men had attempted to rob him at gunpoint. The robbery victim stated that he shot two of them, but the third one got away.

When Officer Mocklin approached the entrance of the alleyway where the incident occurred, he observed a Hispanic male lying on the ground with several gunshot wounds, “pretty much on his last breath.” Officer Mocklin observed that the wounded man still held a gun, which Officer Mocklin moved out of the man’s reach. Officer Mocklin secured the alleyway, left other officers at the scene, and went to investigate a call from dispatch that a Hispanic male wearing a sweatshirt, who fit the description of the third suspect, was seen running approximately two blocks away. After stopping the individual in question, Officer Mocklin concluded that he was not the third suspect.

|,(Detective Joseph McRae of the Kenner Police Department became the lead investigator on this case. After Detective McRae arrived on the scene at approximately 9 p.m., he determined that three individuals perpetrated the crime: Angel Hernandez, German Hernandez-Zuniga (hereinafter, “defendant”), and a third unidentified individual. At that point, Angel Hernandez had died from his gunshot wounds and the third perpetrator had escaped.

More importantly to this matter, defendant had been arrested and was being transported via ambulance for medical care for his gunshot wounds. At trial, Detective McRae identified defendant as the same individual that the emergency medical technicians were treating for gunshot wounds on the night of the incident. He further testified that defendant had a mask in his possession when he was taken into custody that evening.

At trial, defendant testified that, on the day of the incident, he had a painting job, which had been cancelled due to the rain. He admitted that he was carrying a painter’s mask because he had placed a painter’s mask in the pocket of his pants for his job, just in case the rain stopped.

Defendant admitted that he walked to Dreams Communications that evening. He stated that he wanted to buy a phone card, but the store was closed when he arrived. He stated that he then heard voices and wanted to see if anyone needed help. When he walked closer, he heard gunshots. When he started to run from the gunshots, he was shot twice in the back. After he was shot, he attempted to call his girlfriend from his phone.

|sHe also admitted that he knew Angel Hernandez and Manuel Quintero because they had worked together as painters on two or three prior occasions. He stated that the phone records reflected that they had called him that day to ask about work that day. Although defendant admitted that he was the individual who had been shot and taken to the hospital, he denied participating in the robbery or wearing a mask.

On April 14, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, German A. Hernandez-Zuniga, with one count of armed robbery in violation of La. R.S. 14:64. Defendant proceeded to trial on July 20, 2010. After a two-day trial, a twelve-person jury found defendant guilty as charged. On August 16, 2010, the trial court denied defendant’s motion for new trial and sentenced him to 35 years imprisonment without benefit of parole, probation or suspension of sentence after defendant waived sentencing delays. Defendant filed a motion to reconsider sentence, which the trial court denied. This timely appeal follows.

Law and Analysis

In his only pro se and his first counseled assignment of error, defendant argues that the evidence is insufficient to uphold the conviction. Defendant specifically argues that the State failed to present sufficient proof that he was involved in the commission of the armed robbery. Defendant contends that he was “in the wrong place at the wrong time,” was mistakenly shot by a victim of the armed robbery, and incorrectly identified as one of the perpetrators.

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 lacrime beyond a reasonable doubt. See 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. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted).

Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. “Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438.

The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83 (quotation omitted).

Under La. R.S. 14:64, armed robbery is defined as (1) a taking, (2) of anything of value, (3) from the person of or in the immediate control of another, (4) by use of force or intimidation, (5) while armed with a dangerous weapon. See State v. King, 05-553 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, 1212, writ denied, 06-1084 (La.11/9/06), 941 So.2d 36. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s | identity as the perpetrator. State v. Draughn, 05-1825, p. 8 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the State is required to negate any reasonable probability of misiden-tification. Draughn, supra (quotation omitted).

Defendant concedes that Liriano was the victim of an armed robbery but contends that the State failed to prove beyond a reasonable doubt that he was one of the armed robbers. Defendant argues that (1) it was too dark for the victims to identify defendant as the perpetrator, (2) some discrepancy exists between the testimony of Liriano and Torres, and (3) Liriano and Torres had an ulterior motive for claiming defendant was the perpetrator.

With respect to the victims’ ability to see the robbers’ faces, Ms. Torres did state that the alleyway was “too dark,” but, then, she responded that she recognized the defendant “[bjecause of the silhouette” and “his eyes,” which she saw after he removed his mask to speak on the telephone. Ms. Torres testified that, while he was taking off the mask, she bent down to look at him. Ms. Torres asserted that she was certain that the defendant was the same person that robbed Liriano and her in the alleyway. Finally, she stated that she did not see anyone other than Liriano, herself, and the three perpetrators while the robbery was occurring.

Liriano admitted that he did not approach defendant after shooting him, but stated that the individual he shot was the same individual placed in the back of the ambulance. When asked if there was any doubt in his mind that the person he shot and held until the police arrived was one of the two people holding Torres, he responded, “No.” When asked if there was any possibility that the person lying there and placed in the back of the ambulance just happened to walk up as he was being attacked, he responded, “No.”

|sNext, defendant contends there is a “discrepancy” between the testimony of Liriano and Torres. He notes that Torres testified that Liriano was helping her with the trash bin when three individuals came down from the second floor and grabbed them; however, Liriano testified that one individual “came from right under the stairs” and grabbed him, while the other two individuals grabbed Torres. While we are not in agreement that this presents a discrepancy regarding the perpetrators’ identities, we note that any factual discrepancy goes only to the weight of the evidence, not the sufficiency as defendant suggests. See, State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365.

Finally, defendant suggests that Liriano and Torres had an ulterior motive for claiming defendant was the perpetrator. Defendant argues that the testimony does not reveal that he was armed and Liriano “would have likely been in some sort of trouble [if] it was discovered [that] two of his bullets hit the back of an innocent individual walking through the parking lot.”

In this case, Torres stated that the defendant was the man that grabbed her. She also recognized him because she saw his face when he took off his mask after he was shot. Clearly, the jury chose to believe the testimony of the State’s witnesses instead of 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. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In this case, viewing the evidence in the light most favorable to the State, we find that a rational juror could find that the State proved beyond a reasonable doubt that defendant was one of the perpetrators of the offense. Based on the foregoing, we find that this assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in imposing an excessive sentence. Defendant argues that the trial judge failed to | ^consider the criteria set forth in La. C.Cr.P. art. 894.1. The State responds that it did not invoke the firearm sentencing provision of La. R.S. 14:64.3, which would have increased defendant’s sentence by an additional five years. The State contends that defendant’s sentence is in the range approved by the Louisiana Supreme Court for first time armed robbery offenders; thus, it is not excessive.

In the instant case, although defendant filed a written motion to reconsider his sentence as excessive, defendant failed to state that the trial court erred in failing to specify reasons for the sentence pursuant to La.C.Cr.P. art. 894.1. Importantly, La.C.Cr.P. art. 881.1 provides that a defendant may file a motion to reconsider sentence, but requires the motion to set forth the specific grounds on which the motion is based. The failure to state the specific grounds on which the motion to reconsider is based precludes a defendant from raising those grounds on appeal. State v. Mims, 619 So.2d 1059 (La.1993); State v. Decay, 01-192 (La.App. 5 Cir. 9/13/01), 798 So.2d 1057, 1075, writ denied, 01-2724 (La.8/30/02), 823 So.2d 939, reconsideration denied, 01-2724 (La.12/17/02), 833 So.2d 325. Since the sole issue stated in defendant’s motion to reconsider was the excessiveness of his sentence, this Court will review for bare constitutional exces-siveness. See, State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the | inharm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. Three factors are considered in reviewing a trial court’s sentencing discretion: 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. State v. Stewart, 03-920, p. 16 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1027-28, writ denied, 04-449 (La.6/25/04), 876 So.2d 832.

Here, defendant was convicted by a jury of one count of armed robbery. The sentencing range for armed robbery is 10 to 99 years, to be served without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B).

Before imposing sentence, the trial judge noted that, although it was defendant’s first offense, guns were used in the crime. The trial judge also stated:

[T]he victim of your crime has to live every day with the fact of knowing that he killed one of the alleged perpetrators, apparently one of your friends. And I think the crime is a worse punishment on him and the fact that he has to live with taking a man’s life to protect himself and his employee. There’s absolutely no ■ justification for the crime to which you have committed.

Defendant’s sentence of 35 years, which is in the low to middle sentencing range, is comparable to sentences imposed on similarly-situated defendants and within the 35 to 50-year range that the Louisiana Supreme Court has found acceptable for first offenders convicted of armed robbery. State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4.

In State v. Hartwell, 03-1214 (La.App. 5 Cir. 1/27/04), 866 So.2d 899, 901, writ denied, 04-0448 (La.6/25/04), 876 So.2d 832, this Court found that concurrent terms of 35 years imprisonment, plus 5 additional years for the use of a firearm, was not excessive for a 25-year-old first offender found guilty of two counts of armed robbery. Id., 03-1214, 866 So.2d at 906. In State v. Price, 04-812, p. 2 (La.App. 5 Cir. 3/1/05), 909 So.2d 612, 614, this Court found that 40 years imprisonment was not excessive for a 23-year-old first offender found guilty of armed robbery with a firearm. Id., 04-812 at 9, 909 So.2d at 617. See also, State v. Duncan, 09-232, p. 12 (La.App. 5 Cir. 11/10/09), 28 So.3d 410, 417-18; State v. Singleton, 05-634, pp. 4-6 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 806-08, writs denied, 06-1208 (La.11/17/06), 942 So.2d 532 and 08-2386 (La.1/30/09), 999 So.2d 753.

In the present case, defendant was one of three perpetrators of an armed robbery. One victim, who shot and killed one of the perpetrators, testified that he believed their lives were in danger. Based on the foregoing, defendant’s 35-year sentence for being a principal to armed robbery does not appear to be constitutionally excessive. We find no merit in this argument.

Finally, as is our routine procedure, 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); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action. Based on the foregoing, we affirm defendant’s conviction and sentence.

AFFIRMED

      . Liriano has a permit to carry a concealed firearm.

      . Subsequently, crime scene investigators discovered a mask and a sweatshirt, which was likely discarded by the third perpetrator, behind a restaurant next to the victim’s business. Further investigation led Detective McRae to believe that the third perpetrator was named Manuel Quintero. Phone records further revealed that several phone calls had been made between Hernandez, defendant and Quintero on the day of the armed robbery.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Paul COLLINS.
    No. 11-KA-485.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Charles T. Carr, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Michael J. Rocks, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

| gDefendant/appellant, Paul Collins (“Collins”), appeals his conviction and sentence on a charge of issuing a worthless check in violation of La. R.S. 14:71. Upon review, we reverse the conviction and sentence and enter a judgment of acquittal.

Collins was charged with the offense when a $5,000 check he wrote to Freddie Allen (“Allen”) on August 18, 2006 for partial payment on a contract between the parties was returned for insufficient funds. Collins was arraigned and entered a plea of not guilty. After a bench trial on the merits, Collins was found guilty as charged and sentenced to serve two years at hard labor. The trial court suspended the sentence and placed Collins on active probation for two years. Collins filed a timely appeal that was granted.

FACTS

Both Collins and Allen testified at trial. According to that testimony, Collins is the owner of Westchester South Properties, L.L.C. (“Company”), a real estate holding company operating in the Baton Rouge area. In July 2006, Collins entered into a verbal contract with Allen to provide the labor to operate heavy | ^equipment needed to clear a site in Baton Rouge of underbrush and trees and other vegetation debris. After clearing the site, Allen was to burn the debris and lightly grade the land. The agreement was reduced to writing by Allen on August 9, 2006. The document is simple and provides the following: “Grub site, grub around trees, take up stumps, burn debris. Do not take down no [sic] trees. When job is half finish [sic] will receive one half moneys [sic] due.” The total amount due on the contract is $10,000.

Collins testified that he was dissatisfied with Allen’s work on the project and spoke to him about it. Collins maintains Allen was to supply two workers to operate the heavy equipment. Based on that agreement, the Company leased two pieces of equipment. However, Allen only supplied one worker and, as a result, the project went much longer than originally estimated, causing the Company to expend an additional $20,000 for equipment rental. Nevertheless, Collins wrote the check for $5,000 on August 18, 2006 for half the amount due under the contract.

However, subsequently, he went to Allen’s home to discuss completion of the job. Collins stated that Allen had failed to clean the equipment, and there was still “grub” remaining on the site. Further, the debris had not been burned and the area had not been graded. Collins also discussed the cost overruns caused by Allen’s failure to do the job as agreed. According to Collins’ testimony, Allen tried to press for the final payment of $5,000. When Collins refused to pay that, Allen indicated he had taken on another job and would not return to the Company’s work site. Collins stated that he told Allen not to negotiate the original $5,000 check because the funds would not be in the bank.

Collins testified that the Company had in excess of $7,000 in the checking account when he wrote the check to Allen in August. However, after his meeting |4with Allen, Collins attempted to stop payment on the check but was unable to do so. Collins explained that, at the time he wrote the check, he was confident Allen would complete the job and had sufficient funds in the bank to cover the check. But, after his meeting with Allen, he was certain that Allen would not complete the job. Collins testified that it was never his intention to cheat or defraud Allen.

Allen’s testimony corroborates that of Collins insofar as the written agreement was a contract between the parties and that a check was given to him by Collins for $5,000 when the halfway mark on the work was done. However, Allen maintains he completed all of the work under the contract except the burning of the debris. Allen explained that he did not get a permit to burn the piles of debris and was stopped by Baton Rouge fire officials when smoke from the fire caused traffic problems on a nearby road. Allen went back the next day, but the backhoe was gone, so he could not continue with the disposal of the debris.

Allen stated that he completed the work under the contract and was owed the entire amount. He testified that, when he deposited the check Collins had given him, it was returned for insufficient funds. Allen also testified that he sent a demand notice to Collins for the $5,000, but he admits it was sent to an incorrect address and probably never reached Collins. He called the district attorney and proceeded with criminal charges. Allen did not file a civil suit in the matter.

The State presented testimony from Monica Dupeire, Vice President and Security Officer for First Bank & Trust. She came in response to a subpoena duces tecum for the Company’s bank records as the custodian of those records. Ms. Dupeire testified that check No. 1633, dated August 18, 2006 and made payable to Allen, was presented for payment of September 12, 2006, and it was returned for insufficient funds. The check was again presented for payment on September 22, |52006 and was again marked NSF. It was also marked not to be presented for payment again.

The Company’s bank records introduced show that the balance on August 31, 2006 was $7,342.53. On September 1, 2006, the balance was $5,977.53. However on September 12, 2006, when the check was presented for payment, the balance was insufficient to cover the $5,000 check and would have created a deficit balance of $3,617.95. Because the Company had no overdraft protection on the account, the $5,000 was returned for insufficient funds.

After considering the testimonial and documentary evidence, the trial court rendered a verdict of guilty as charged.

LAW AND ANALYSIS

On appeal, Collins maintains the State presented insufficient evidence to sustain the trial court’s verdict of guilty as charged to issuance of a worthless check. Collins contends that no reasonable trier of fact could have found that he was guilty of issuing a worthless check, because the evidence showed there were sufficient funds to cover payment of the check at the time it was issued. Collins also asserts that the trial judge erroneously considered not only the point in time that the check was written, but also when it was presented for payment by the holder. He further argues there was not sufficient evidence to prove that Collins intended to defraud Allen.

The State responds that the evidence was sufficient to establish that Collins had the intent to defraud and that he knew at the time he issued the check he would have insufficient funds to cover the check since he intended to go to the bank to remove those funds.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in | fithe light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.

In cases involving circumstantial evidence, the trial court must instruct the jury that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

In the matter before us, Collins was convicted of issuing a worthless check, a violation of La. R.S. 14:71. To obtain a conviction for issuing a worthless check, the State is required to prove beyond a reasonable doubt that: (1) defendant issued, in exchange for anything of value, whether the exchange is contemporaneous or not; (2) a check, draft or order for the payment of money upon any bank or other depository; (3) knowing at the time of the issuing that the account on which drawn has insufficient funds, and the defendant has insufficient credit with the financial institution on which the check is drawn to have the instrument paid in full on presentation; and (4) the instrument was issued with intent to defraud.

Subparagraph (A)(1)(f), (2) of La. R.S. 14:71 creates a statutory rebuttable and permissible presumption of the issuer’s intent to defraud when the offender fails to pay the amount of the worthless check within ten days of the receipt of notification |7by certified mail of nonpayment of the check, sent to the address shown on the check or the address shown in the records of the bank on which the check was drawn.

The State refers this Court to State v. Mosby, and State v. Washington, in support of its position that its burden of proof was met and the evidence was sufficient to convict Collins. In Mosby, defendant wrote a $250 check to Matranga Motors for vehicle repairs on April 1. When the check was presented for payment on April 5. there were insufficient funds in the account to cover it. A letter notifying defendant of the nonpayment was mailed to defendant, which defendant signed for; however, he never made payment. On appeal, defendant argued that there was insufficient evidence to prove that he had the intent to defraud and that he knew at the time he issued the check there would be insufficient funds for the payment of it upon presentation. Defendant asserted that his bank statement showed a balance of $556.91 on April 1, an amount sufficient to cover the check issued that date. The Second Circuit noted the bank statement showed that, on the next day, April 2, the balance was $197.76, an amount insufficient to cover the outstanding check to Matranga Motors. The Second Circuit also noted that evidence was sufficient to establish the rebuttable presumption of fraud provided for in La. R.S. 14:71(A)(l)(f), (2) because a certified letter was sent to defendant. Based on that evidence, the Second Circuit found no error in the trial court’s conclusion that defendant knew at the time of issuance that he would have insufficient funds to cover the check, and he did not rebut the presumption of intent to defraud.

| sIn Washington, defendant bought a new car on April 1 by writing a check for $5,000 to Twin City Pontiac/Jeep for the down payment and by financing the remainder. The check was deposited on April 5 and returned to the dealer because of insufficient funds. A registered letter demanding payment was mailed to defendant and received by her, but she did not respond. Defendant ignored repeated demands to pay off the check or return the car, and she did not pay any monthly installment due under the financing contract. Six months after writing the check, defendant returned the car with 19,000 miles on the odometer. She admitted at trial she knew she did not have sufficient funds in her account to satisfy the $5,000 check when she wrote it. The Second Circuit found the evidence sufficient to prove beyond a reasonable doubt that defendant intended to defraud Twin City. Defendant’s assignment regarding the State’s proof of defendant’s knowledge was not addressed because it was not briefed.

We find the State’s reliance on the above two cases is misplaced. In the instant case, funds sufficient to cover the $5,000 check were in the bank at the time the check was issued, and, according to bank records and testimony, remained there for several weeks after the issuance of the check. Although, at some point between the issuance of the check and its tender for payment, Collins withdrew $5,000, it was clearly because of a contract dispute between the parties. Unlike the defendants in Mosby and Washington, Collins did not receive a letter that would trigger the rebuttable presumption in La. R.S. 14:71(A)(l)(f), (2). Allen admits he sent a certified letter to Collins at an incorrect address, even though he had the correct address on the check and the contract. Thus, the State had to prove, beyond |9a reasonable doubt, that Collins had the intent to defraud Allen without the benefit of the presumption in La. R.S. 14:71.

The State has the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt. The State failed to prove that Collins knew at the time of issuance of the check that the account had insufficient funds. In fact, the evidence proves otherwise. Further, there is no evidence establishing that Collins knew when he issued the $5,000 check that he would then become dissatisfied with the work and go to the bank and remove the funds. Additionally, there is no evidence in the instant case that Collins intended to defraud Allen when he issued the check. It is clear from the testimony of both Collins and Allen that this is a contract dispute. Allen admitted he sent a letter to Collins about the NSF check to an incorrect address. We also note the testimony at trial was consistent with a breach of contract action, rather than a criminal prosecution. Both parties disagree with the extent of completion of the contract and the amount owed.

Accordingly, we find that the evidence was insufficient under the Jackson standard to support the conviction. We reverse the conviction and sentence, enter a judgment of acquittal, and order Collins discharged.

REVERSED; JUDGMENT OF ACQUITTAL RENDERED

      ; Although defense counsel made an oral motion to reconsider sentence, the record does not reflect that a written motion was filed. Since sentencing is not at issue in this appeal, we consider that issue to be abandoned and will neither consider it, nor remand the matter to the trial court for consideration.

      . Documentation in the records confirms this testimony.

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

      . La. R.S. 15:438.

        .State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

      . La. R.S. 14:71; State v. Washington, 29,784 (La.App. 2 Cir. 9/26/97), 700 So.2d 1068, 1072.

      . State v. Mosby, 42,519 (La.App. 2 Cir. 5/18/07), 956 So.2d 843, writ denied, 07-1457 (La. 1/7/08), 973 So.2d 731, 845.

      . 42,519, pp. 1-3 (La.App. 2 Cir. 5/18/07), 956 So.2d 843.

      . 29,784 (La.App. 2 Cir. 9/26/97), 700 So.2d 1068.

      .The offender’s failure to pay a check, draft, or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.

      . La. R.S. 15:271.

      . Because of our disposition in this case, it is unnecessary to discuss the second assignment of error or any errors patent found in the record.


text:
    STATE of Louisiana v. Sylvester PARA.
    No. 11-KA-495.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry M. Bou-dreaux, Assistant District Attorney, Gret-na, LA, for Appellee, the State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Sylvester Para.
    Sylvester Para, In Proper Person, Cot-tonport, LA, Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2Pefendant appeals his convictions and sentences, and counsel for appellant moves to withdraw from this matter. For the reasons that follow, we affirm defendant’s convictions and sentences.

Facts and Procedural History

Because defendant pled guilty and did not proceed to trial, the facts were gathered from testimony at the pre-trial hearings and guilty plea proceedings. Late on the evening of September 6 and early on the morning of September 7, 2007, defendant and two accomplices invaded three separate homes in Jefferson Parish while armed with at least one handgun with the intent to commit a felony, such as aggravated battery, or theft of the occupants’ property. Further, on September 7, 2007, defendant unlawfully fled the custody of the Jefferson Parish Sheriffs Office.

|3On April 14, 2010, the Jefferson Parish District Attorney filed a bill of information with respect to the events of September 7, 2007, charging defendant with two counts of aggravated burglary in violation of La. R.S. 14:60 (counts 1, 8), one count of attempted aggravated burglary in violation of La. R.S. 14:27:60 (count 2), and one count of simple escape in violation of La. R.S. 14:110 (count 7). That same day, defendant was arraigned and pled not guilty to all charges.

On November 9, 2010, after one day of trial, defendant withdrew his former pleas of not guilty and pled guilty as charged pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On counts 1 and 3 (aggravated burglary), the court sentenced defendant to concurrent sentences of 23 years at hard labor. On count 2 (attempted aggravated burglary), the court sentenced defendant to a concurrent sentence of 5 years at hard labor. On count 7 (simple escape), the court sentenced defendant to a consecutive sentence of 2 years at hard labor. On January 13, 2011, the trial court granted defendant’s motion for out-of-time appeal. This appeal follows.

DISCUSSION

Counsel for appellant has filed a brief averring that, after a conscientious and thorough review of the record, no non-frivolous issue exists to raise on appeal. Counsel for defendant further submits that there is no ruling of the trial court that arguably supports an appeal. Pursuant to this advisal, appellate counsel moves to withdraw from further representation of defendant.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court noted that, “if counsel finds [the] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders v. California, 87 S.Ct. at 1400. The Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. Id.

In the instant ease, appellate counsel’s motion to withdraw as attorney of record states that he has made a conscientious and thorough review of the trial court record but found no non-frivolous issues to raise on appeal and no rulings of the trial court which arguably would support the appeal. The motion also states that appellate counsel notified defendant that he had filed an Anders brief and that defendant has a right to file a pro se brief in the appeal.

| ¿Additionally, on May 27, 2011, this Court informed appellant via certified mail that his attorney had filed an Anders brief so appellant had until June 24, 2011, to file a pro se supplemental brief. On June 7, 2011, appellant filed a motion to file a pro se supplemental brief and was given until July 13, 2011 to file his brief. Appellant filed his brief on July 12, 2011.

lo his brief to this Court, defendant’s appellate counsel makes clear that he could not find any non-frivolous issues to raise on appeal. With respect to pre-trial motions to quash, appellate counsel points out that the statutory prescriptive period provided in La.C.Cr.P. art. 578 had not prescribed so the motions were not meritorious.

With respect to appellant’s pre-trial motion to suppress evidence, appellate counsel asserts that the searches and subsequent seizures of evidence were lawful. Appellate counsel also notes that the bill of information was proper, defendant was present for all pertinent court proceedings, defendant had the assistance of counsel throughout all court proceedings, and the sentences imposed were in accord with the plea agreement.

Accordingly, following the procedures outlined in State v. Bradford, supra at 1110-1111, this Court conducted an independent review of the pleadings, minute entries, the bill of information, and transcripts in the appeal record. Upon review, we find that the record discloses no non-frivolous issues and no rulings that would arguably support an appeal.

First, the bill of information plainly, concisely, and definitely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged. See generally La.C.Cr.P. arts. 464-66. Further, the bill of information was signed by the district attorney in the court having jurisdiction over the offense. See, La.C.Cr.P. art. 384.

|fiSecond, as reflected by the minute entries and commitment, defendant appeared before the Court at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. See, La.C.Cr.P. arts. 831 and 835.

Third, defendant filed several pre-trial motions, including motions to suppress confession, identification, and evidence as well as motions to quash. The record reflects that each of these motions was denied and defendant did not contemporaneously object to said ruling and, thus, failed to preserve appellate review of the rulings. La.C.Cr.P. art. 841.

Fourth, defendant pled guilty as charged. The record shows that defendant knew that he was pleading guilty to two counts of aggravated burglary, one count of attempted aggravated burglary, and one count of simple escape. The properly-executed waiver of rights form, commitment, and plea colloquy all indicate that he was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama. Defendant indicated during the plea colloquy that he understood that he was waiving these rights.

Defendant further stated that he had not been forced, coerced, or threatened to enter his guilty plea. He was also informed that by pleading guilty to this felony that his guilty plea could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future.

Before pleading guilty, defendant was advised that he faced a possible sentencing range of thirty years at hard labor for each count of aggravated burglaries, fifteen years for the attempted aggravated burglary, and five years for the simple escape. In exchange for his plea of guilty to each count, defendant was |7offered a sentence of 25 years at hard labor, consisting of two concurrent 23-year sentences for the two counts of aggravated burglary, a concurrent 5-year sentence for attempted aggravated burglary, and a consecutive 2-year sentence for simple escape. Defendant agreed that he understood the possible consequences of pleading guilty and still wished to plead guilty.

Lastly, defendant’s sentence does not appear to present issues for appeal. Defendant’s sentence was imposed in conformity with a plea agreement and defendant cannot seek review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2); State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, because defendant’s plea agreements were set forth in the record at the time of his plea, he is statutorily precluded from review. Nonetheless, our review reveals that defendant’s sentence is within the limits authorized by La. R.S. 14:60, 14:27:60, and 14:110 in effect on the date the offenses were committed.

Therefore, we find that counsel conducted a detailed and thorough review of the record and adequately complied with An-ders and State v. Jyles, by setting forth in the appellate brief “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (quoting State v. Mouton, 95-0981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177). The record evidences that defendant has received diligent advocacy from appellate counsel.

In his sole pro se assignment of error, defendant argues that his sentence was excessive. However, as noted above, La. C.Cr.P. art. 881.2(A)(2) precludes review of defendant’s sentence because it was imposed in conformity with his plea agreement, which was set forth in the record at the time of his plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Furthermore, as also noted above, a review of La. R.S.14:60, 14:27:60, and 14:110 confirms that defendant’s sentence was within the statutory range for those offenses. Accordingly, we find no merit in this assignment of error.

Lastly, defendant requests an error patent review, which is our routine procedure pursuant to La.C.Cr.P. art. 920. Our review reveals no errors that require corrective action.

For the foregoing reasons, we affirm defendant’s convictions and sentences.

AFFIRMED

      .In the interest of completeness, we note that this is the second bill of information filed with respect to the events of September 7, 2007. On November 14, 2007, the Jefferson Parish District Attorney filed the first bill of information charging defendant and two co-defendants with four counts of attempted armed robbery, one count of armed robbery, and one count of simple escape. On November 19, 2007, defendant was arraigned and pled not guilty to these charges. However, a superseding indictment implicitly dismisses a first indictment. State v. Alo, 06-473 (La.App. 5 Cir. 12/27/06), 948 So.2d 275, 278-279, citing State v. Freeman, 37,312 (La.App. 2 Cir. 7/16/03), 850 So.2d 1088, 1090, writ denied, 03-2466 (La.2/6/04), 865 So.2d 740.

      . As to counts 1, 2, and 3, defendant was charged along with co-defendants Austin Lowery and Kevin P. Mayon. As to count 7, defendant was charged by himself.

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

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

      . Those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C).

      . La. R.S. 14:110(B) mandates that any sentence imposed for simple or aggravated escape shall run consecutive to any other sentence imposed.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Danny ALSAY.
    No. 11-KA-562.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dee. 13, 2011.

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

12Pefendant, Danny Alsay, appeals his convictions for two counts of aggravated battery on the basis the evidence was insufficient to support the convictions. For the reasons that follow, we affirm.

Defendant was charged in a bill of information on August 6, 2008 with two counts of attempted first degree murder of D.O., a juvenile, and Kendra, in violation of La. R.S. 14:27 and 14:30. The State subsequently amended count two of the bill of information on August 19, 2009 to charge defendant with attempted second degree murder of Kendra in violation of La. R.S. 14:27 and 14:30.1. Defendant proceeded to trial on August 19, 2009 before a 12-per-son jury. The jury found defendant guilty of the responsive verdict of aggravated battery on both counts. The trial court sentenced defendant to ten years at hard labor on each |scount and ordered the sentences to run concurrently. The State subsequently filed a multiple offender bill of information, but later dismissed it. Defendant filed this appeal challenging his convictions for aggravated battery.

Facts

At approximately 10:10 a.m. on June 13, 2008, Deputy Roy Broadrick and Detective James Compton, both with the Gretna Police Department, responded to a 911 open line call with a disturbance or argument in the background. Detective Compton knocked on the front door of the residence, but no one answered. Shortly thereafter, Kendra came out of the side door of the house visibly upset and afraid screaming “he’s got a gun.” Defendant then exited the same door, threw a silver pistol down, and went back inside. Defendant then came out the front door with his hands up and was handcuffed.

Kendra advised the officers that defendant, her ex-boyfriend, was trying to kill her and their three and one-half-year-old son, D.O. She stated defendant shot at her in a bedroom and shot at D.O. in another bedroom after covering him with a comforter. Deputy Broadrick observed a hole in the comforter and the mattress in the master bedroom and a hole in the mattress in defendant’s bedroom. A shell casing was subsequently recovered from the floor next to the dresser in the master bedroom, and a spent shell casing was found inside the mattress. Additionally, in defendant’s bedroom, one spent shell casing was found on the bed’s comforter, and a second shell casing was found under the bed. A projectile, or bullet, was found lodged under the bed in the floor under the carpet, and a second projectile was recovered from the paneling on the wall behind defendant’s bed. The gun discarded by defendant matched the casings and projectiles found in the two bedrooms.

| ^Kendra also advised the officers that defendant brought her into the bathroom and tried to place a shower curtain over her head while stating he was going to kill her. Another police officer went into the bathroom and observed water running in the tub. Deputy Broadrick then arrested defendant for the attempted murder of Kendra and D.O.

At trial, Kendra testified she and D.O. spent the night at defendant’s house with his parents on June 12, 2008. Defendant’s parents were gone the next morning when defendant grabbed Kendra’s cell phone and looked through her phone numbers. Upon seeing phone numbers he did not recognize, defendant “started going crazy.” Kendra stated defendant started to choke her and cuss at her stating, “B* * * *, you better not be playing with no n* * * * *, why is n* * * * *s calling your phone.” The two began to argue when defendant stuck his Angers in Kendra’s mouth, scratched her gums, and retrieved a silver handgun from under his bed.

Defendant pointed the gun at Kendra’s head and said he was going to kill her. Kendra attempted to grab the gun and it discharged towards her face, which prompted defendant to state, “b* * * *, why you move your head, I wanted to shoot you.” Kendra testified she began begging for her life when defendant attempted to choke her on the bed, firing another shot. Defendant then pointed the gun at her head and forced her into the bathroom while repeatedly threatening to kill her. In the bathroom, Kendra continued pleading for her life as defendant made her sit on the edge of the bathtub as he ran the bath water. Kendra stated defendant kept pulling the shower curtain in front of her face and saying “b* * * *, you won’t see it coming.”

Kendra asked if she could see her son one last time. Agreeing to her request, defendant pushed Kendra into the master bedroom where D.O. was watching | .^cartoons. While Kendra was hugging D.O., defendant grabbed D.O. and said “who do you want to see go first, you or him.” Defendant then pulled the covers over D.O. and fired the gun towards his head. After the shot missed D.O., defendant stated, “how the f* * * I missed this little n* * * Kendra unsuccessfully attempted to wrestle the gun away from defendant, who then pushed her out of the master bedroom and into his bedroom repeating his desire to kill her.

Once back in defendant’s bedroom, Kendra’s uncle and friend of defendant’s parents, knocked on the front door. Prior to answering the door, defendant threatened to kill Kendra and her uncle if she did not get back into the bedroom. While defendant answered the door, Kendra snuck into the kitchen, dialed 911, threw the phone down, and went back into the bedroom so defendant would not catch her. Shortly thereafter, the police arrived at the house. As defendant looked out the window at the police, Kendra ran out of the side door yelling that defendant had a gun and was trying to kill her and her son.

Defendant did not testify at trial. However, in a statement given to police after his arrest and after waiving his rights, defendant stated he and Kendra argued over a phone call he had received from a female. According to defendant, Kendra said she was going to have “the dudes” kill him. Defendant further stated he went into the master bedroom and lay down next to his son when Kendra came in with a gun. The two fought over the gun and a shot was fired. When questioned about the firing of the gun, defendant requested an attorney at which time his statement ended.

Sufficiency of the Evidence

In defendant’s sole assignment of error, he challenges the sufficiency of the evidence to convict him of aggravated battery. Defendant asserts that attempted murder and | (¡aggravated battery do not encompass the same elements, i.e., aggravated battery requires the use of force of violence upon the victim and the use of a dangerous weapon whereas attempted murder does not. He contends he could not have been convicted of aggravated battery where no evidence was presented to indicate that either victim was actually struck by a bullet, or subjected to any battery by the use of a deadly weapon. Recognizing he failed to object to the inclusion of aggravated battery as a responsive verdict, defendant further argues there was no evidence of specific intent to kill and, thus, an essential element of attempted murder is absent. Defendant maintains the evidence only shows he intended to frighten the victims, not kill them.

The constitutional standard for testing the sufficiency of the evidence 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

In the instant case, defendant was charged with one count of attempted first degree murder and one count of attempted second degree murder and was convicted of two counts of aggravated battery. Under La.C.Cr.P. art. 814(A)(2) and (4), aggravated battery is a legislatively authorized responsive verdict to attempted first and second degree murder. The Louisiana Supreme Court has acknowledged that an essential element of aggravated battery, the lesser crime, is not an essential element of the greater crime, attempted murder. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). Specifically, attempted murder does not require the use of force or violence upon the person of the victim and it does not require the use of a dangerous weapon. Thus, the evidence adduced to support the greater offense does not automatically prove the lesser. Id. at 249.

| ^Defendant argues the evidence was insufficient to support the jury verdicts of two counts of aggravated battery. The record reflects that defendant never objected to the inclusion of aggravated battery as a responsive offense. It is well established that a defendant may not complain if the jury returns a legislatively approved responsive verdict, even where there is insufficient evidence to support such a verdict, provided the evidence is sufficient to support the charged offense. Blackburn, 424 So.2d at 252; State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 878, writ denied, 05-830 (La.11/28/05), 916 So.2d 143. In Blackb urn, 424 So.2d at 251-52, the supreme court explained:

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

Accordingly, defendant is entitled to a reversal of his conviction only if the evidence is insufficient under the Jackson standard to support a conviction of the charged offenses, attempted first and attempted second degree murder, regardless of whether the responsive verdict is supported by the evidence. Austin, supra.

First degree murder is the “killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve years.” La. R.S. 14:30(A)(5). Second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1. Attempt is defined as “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended.” La. R.S. 14:27(A).

|sThe crime of attempted murder, whether first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Cepriano, 00-213 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 897. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Lewis, 97-160 (La.App. 5 Cir. 7/29/97), 698 So.2d 456, 459, writ denied, 97-2381 (La.3/27/98), 716 So.2d 881.

In the present case, the record demonstrates the evidence was sufficient to convict defendant of the charged offenses of attempted first degree murder of D.O. and attempted second degree murder of Kendra. Although defendant argues that specific intent is lacking because defendant had the opportunity for a contact shot but disregarded it, it is well established that specific intent may be inferred from the act of pointing a gun and firing at a person. See State v. Noble, 425 So.2d 734, 736 (La.1983); State v. Templet, 05-2623 (La.App. 1 Cir. 8/16/06), 943 So.2d 412, 422, writ denied, 06-2203 (La.4/20/07), 954 So.2d 158; State v. Butler, 37,226 (La.App. 2 Cir. 6/25/03), 850 So.2d 932; State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, writ denied, 94-3063 (La.4/7/95), 652 So.2d 1344.

Here, the evidence showed that defendant pointed and shot the gun at both Kendra and D.O., and verbalized his desire to kill them. Specifically, Kendra testified that defendant retrieved a gun from underneath his bed, pointed it at her head, and stated that he was going to kill her. When the gun discharged, defendant wanted to know why Kendra had moved because he “wanted to shoot [her.]” J^Kendra stated defendant fired another shot while attempting to choke her on the bed. With regard to D.O., the evidence showed defendant covered his son with a comforter, pointed the gun towards the child’s head, and fired the weapon. Upon missing, the defendant wanted to know how he missed.

The physical evidence at the scene substantiated Kendra’s version of the events. In particular, in defendant’s bedroom, one bullet was located in the floor beneath the bed and one bullet was found in the wall near the headboard of the bed. In the master bedroom, a shell casing was found next to the dresser and a spent casing was found inside the mattress.

We find this evidence is sufficient to establish specific intent. In viewing the evidence in the light most favorable to the State, we find the evidence sufficient to support a conviction for the charged offenses, attempted first degree murder and attempted second degree murder. Thus, defendant is not entitled to a reversal of his convictions for the responsive verdicts of aggravated battery, to which he did not object.

We have reviewed the record for errors patent pursuant to La.C.Cr.P. art. 920 and find no errors that require corrective action.

Decree

Defendant’s convictions and sentences for two counts of aggravated battery are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED

      . Kendra’s full name is not referenced in this opinion to protect the identity and to provide for the safety and welfare of her juvenile son, D.O., who is the victim in count one and whose initials will be used in this opinion under the authority of La. R.S. 46:1844.

      . Defendant was also charged with one count of possession of a firearm by a felon (count three) in violation of La. R.S. 14:95.1. Defendant proceeded to trial solely on the two murder charges (counts one and two) and was convicted. Thereafter, count three was amended to attempted possession of a firearm by a felon on February 1, 2010. On the same day, defendant pled guilty to the amended charge and was sentenced to seven years at hard labor. Defendant’s conviction and sentence for attempted possession of a firearm by a felon are not challenged in this appeal.


text:
    STATE of Louisiana v. Anthony OTKINS.
    No. 11-KA-563.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Anthony Otkins, also known as Brandon Mitchell and as Darryl McDaniels (for purposes of this appeal, hereinafter “Otkins”), was charged by a bill of information with armed robbery in violation of La. R.S. 14:64 (Count One) and with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (Count Two). Otkins was arraigned and pled not guilty to these charges. On November 15, 2010, Otkins filed a motion to sever offenses, requesting to have separate trials for each offense. This motion was denied. On that date, Otkins also filed a motion to quash, arguing that, on October 5, 2010, the State had stipulated that he was not the same individual convicted in case No. 421,635 in Orleans Parish Criminal Court and that he, Otkins, had accepted this stipulation. As such, Otkins argued that this conviction could not be used to charge him with La. R.S. 14:95.1. On December 13, 2010, the State amended the bill of information by adding that defendant was also known as Brandon Mitchell and Darryl McDaniels. The bill of information was further amended as to the | ¡predicate conviction for Count Two. Also on December 13, 2010, the trial court marked the motion to quash as moot.

On February 16, 2011, Otkins pled guilty to armed robbery and possession of a firearm by a convicted felon. He was sentenced to twenty years of imprisonment at hard labor for Count One and to 15 years of imprisonment at hard labor for Count Two, with the sentences ordered to run concurrently with each other. Further, both sentences were imposed without benefit of parole, probation, or suspension of sentence. The trial judge also told Otkins that his sentences “will run concurrent with any and all other sentences that you may be serving.” The commitment similarly reflects that his sentences were ordered to run concurrently “with any and all other sentences [Otkins was] presently serving.”

Otkins filed a written, pro se motion for appeal on February 25, 2011, regarding his plea and sentence, which was granted on February 28, 2011. Also on February 25, 2011, Otkins filed two substantially similar pro se motions to withdraw his guilty plea. On March 24, 2011, the trial judge denied the motion to withdraw the guilty plea. (The index in the appellate record explains that the motions are on imaging only and were absent from the record. It also reflects that it was unclear as to whether the order was as to one or both motions to withdraw.) On March 10, 2011, Otkins filed another pro se motion to withdraw his guilty plea, which was denied.

This appeal follows.

FACTS

Otkins pled guilty without proceeding to trial. As such, the facts are taken from the amended bill of information. Otkins, also known as Brandon Mitchell and Darryl McDaniels, committed an armed robbery of Corey Davis on or about June 12, 2010. Also on or about this date, Otkins was in possession of a firearm, ^having been previously convicted in Orleans Parish Criminal Court of possession of cocaine in violation of La. R.S. 40:967(C) as Brandon Mitchell in case No. 474-723.

Appellate counsel has filed a motion to withdraw, together with an Anders brief, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.”

In Jyles, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the | ^contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel.

Otkins’ appellate counsel asserts that, after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal and could find no ruling of the trial court that would arguably support the appeal. She asserts that, prior to his decision to change his plea from not guilty to guilty, Otkins was fully informed of the legal consequences by both his trial counsel as well as the trial court. Counsel contends that each of the rights necessary to ensure a knowing and intelligent waiver of rights was explained to Otkins. Counsel states that he was advised of his constitutional right to a trial by jury, to remain silent, to confront witnesses, and to the presumption of innocence. She further explains that Otkins was informed that the State would be required to prove his guilt beyond a reasonable doubt and that by tendering his pleas, he was waiving his right to appeal.

[fiAppellate counsel contends that Otkins was informed of the sentences that would be imposed for the offenses to which he was pleading. Counsel also asserts that he was sentenced in accordance with the plea agreement and did not object to the sentences or move for reconsideration. Counsel contends that Otkins was advised of the time delays for filing an appeal and for filing an application for post-conviction relief. She concludes that Otkins is restricted by law from appealing his sentence, and she requests that any and all errors patent be listed as assignments of error for purposes of this appeal.

Appellate counsel filed a motion to withdraw as attorney of record, which provides that she notified Otkins of the filing of this motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent him a letter by certified mail informing him that an Anders brief had been filed and that he had until a definite date to file a pro se supplemental brief. Otkins has not filed a brief.

Our review of the record discloses that the bill of information in this case properly charged Otkins and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged.

As reflected by the minute entries, Ot-kins appeared at each stage of the proceedings against him. He attended his arraignment, his guilty pleas, and his sentencing. As such, his presence does not present any issue that would support an appeal.

Further, Otkins pled guilty. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and 17precludes review of such defects either by appeal or post-conviction relief. No rulings were preserved for appeal under the holding in State v. Crosby,

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly.

The record shows that Otkins was aware he was pleading guilty to armed robbery and possession of a firearm by a convicted felon. By means of the waiver of rights form and the colloquy between he and the judge, he was advised of his rights as required by Boykin. Otkins indicated that he understood that he was waiving these rights. The colloquy reflects that, at the time of sentencing, Otkins was twenty-one years old and had a ninth-grade education.

Otkins was advised, if he had questions or did not understand something, to stop the judge for further instructions. The waiver of rights form reflects that he was informed that he faced a maximum sentence of ninety-nine years for the armed robbery offense and fifteen years for the offense of possession of a firearm by a convicted felon. He was advised by means of the form that he would be sentenced to twenty years for the armed robbery offense and fifteen years for the offense of possession of a firearm by a convicted felon. The form further reflects that Ot-kins’ sentence would be without benefit of parole. During the colloquy, he was further |sadvised that the maximum sentences of ninety-nine years and fifteen years were at hard labor, and he indicated that he understood the possible sentences. Otkins was also more specifically told that his sentence would be twenty years at hard labor without benefit of parole, probation, or suspension of sentence for the armed robbery offense, and fifteen years at hard labor without benefit of parole, probation, or suspension of sentence for the offense of possession of a firearm by a convicted felon. Otkins indicated that he understood the sentences that would be imposed if his guilty pleas were accepted.

It appears that Otkins was not advised as to the minimum penalties he faced for the two offenses as provided in La. C.Cr.P. art. 556.1. However, violations of La.C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. The Louisiana Supreme Court has clearly held that the core Boykin constitutional requirements have never been extended to include advice with respect to sentencing. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. In the present case, the record shows that Otkins conferred with his attorney before entering his guilty pleas and was clearly advised of the sentences that he would receive by pleading guilty. Further, his plea bargain was highly beneficial.

Otkins further indicated that he was satisfied with the way his attorney and the court handled his case. He stated that he had not been forced, coerced, or threatened to plead guilty. He and his attorney both admitted that their signatures were present on the waiver of frights form. The judge also signed the waiver of rights form. Otkins indicated that he understood the possible legal consequences of pleading guilty and wished to plead guilty. The trial court accepted his pleas as having been knowingly, intelligently, willingly, and voluntarily made.

The sentences do not present issues for appeal. For the armed robbery offense, Otkins was sentenced to twenty years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, well within the lower range prescribed by La. R.S. 14:64. For the offense of possession of a firearm by a convicted felon, he was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence, also in accordance with the sentencing range prescribed by La. R.S. 14:95.1.

The sentences were imposed pursuant to a plea agreement. Otkins knew what his sentences would be if he chose to plead guilty and his sentences were in conformity with the agreement. La.C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

Although not briefed by appellate counsel, after sentencing, Otkins filed motions to withdraw his guilty pleas, which motions were denied by the trial court. La.C.Cr.P. art. 559(A) provides that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” In the present case, Otkins’ motions to withdraw his guilty pleas were filed too late. Despite the language of La.C.Cr.P. art. 559, which provides that a trial court may permit the withdrawal of a guilty plea at any time prior to sentencing, a trial court can properly vacate a guilty plea after sentence if it determines that the facts surrounding a guilty plea rendered it constitutionally deficient. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction | mrelief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.

In the present case, and as discussed hereinabove, the record does not reflect that the guilty pleas were constitutionally infirm. Additionally, although Otkins was made aware that he had the opportunity to file a pro se supplemental brief in this appeal, he has not done so nor otherwise sought review of the rulings on the denial of the motions to withdraw his guilty pleas. We find no reason to disturb the guilty pleas and agreed-upon sentences.

Based on the foregoing, we find there are no non-frivolous issues to be raised on appeal. Appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion.

We have reviewed the record for errors patent and find none that require correction. For reasons set forth in this opinion, we affirm Otkins’ conviction and sentence and grant defense counsel’s motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      . See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990).

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

      . McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).

      . Jyles, supra.

      . State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108.

      . Id.

      . State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662.

      . 338 So.2d 584 (La.1976).

      . State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120.

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

      . McCoil, supra.

      . State v. Dixon, 449 So.2d 463, 464 (La. 1984).

      . The commitment also reflects defendant was advised of his Boykin rights.

      . State v. Campbell, 08-1226, p. 5 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842.

      . Id.

        .State v. Roberts, 03-933 (La.App. 5 Cir. 12/30/03), 864 So.2d 860, 865 (citing State v. Lewis, 421 So.2d 224, 225 (La. 1982)).

      . McCoiL, supra.

      . Id.