author: CARAWAY, J.

text:
    Kristi Sullivan JONES, Plaintiff-Appellee v. Timothy Chris JONES, Defendant-Appellant.
    No. 44,201-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Burt A. Bowers, Shreveport, for Appellant.
    Kelly L. Long, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

I,Following their divorce, the parties reached an agreement for child support which was specifically affirmed to continue as an in globo award until the youngest child reached the age of majority. A consent judgment was entered. Within a year of the parties’ agreement, the oldest child reached the age of majority and the father’s income was reduced, causing him to seek modification of his support obligation. While the trial court recognized the father’s lower level of income and reduced the support obligation, the court did not select the guidelines’ support payment for the one remaining child but continued the in globo award based upon the scheduled support obligation for two' children. The father appeals the ruling, and for the following reasons, we affirm.

Facts

A judgment of divorce terminated the marriage of Kristi and Timothy Jones on November 16, 2006. Of the marriage, two boys, Caleb and Cody, were born. The parties reached agreement for a stipulated judgment for custody, support and partition of the community property which was signed by the trial court on May 29, 2007. At the time of the judgment, Cody was 12 years old. Caleb was 17, but turned 18 only days after the judgment was signed. Relevant to child support, the consent judgment provided as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that TIMOTHY CHRIS JONES is ordered to pay child support for the maintenance of the minor children in the amount of $1500.00 per month beginning April 2007, with the child support to continue in the same amount after Caleb Jones has reached the age of 18 and until Cody Jones reaches the age of 18.

|2On March 14, 2008, Timothy filed a Rule to Decrease Child Support alleging a material change in circumstances arising from Caleb’s reaching the age of majority and a 50% reduction in income due to the loss of employment at both his full-time and extra jobs. Timothy prayed for a termination of his child support obligation to Caleb and for a recalculation of his remaining child support obligation for Cody according to the child support guidelines for one child set forth in La. R.S. 9:315.19. Kristi argued that there had been no material change in circumstances because the prior award contemplated Caleb’s majority and Timothy was voluntarily unemployed due to his own actions. She also filed a rule for arrearages and contempt proceedings.

On May 29, 2008, the trial court heard evidence on the rule to decrease child support. Both parties testified along with two of Timothy’s former employers.

Edward Forrest, the administrator of the nursing home where Timothy was formerly employed, testified that Timothy worked as a contract laborer for his nursing home from April of 2004 through July of 2007. He worked as a wound care specialist, an occupational therapist specializing in wound treatment. Timothy’s contract was terminated in July of 2007 because the nursing home phased out the position of wound care specialist and replaced it with a lower-paid professional. Forrest testified that Timothy’s termination had nothing to do with his abilities. While employed with the nursing home, Timothy made $40.00/hour and worked approximately 40-45 | ¡¡hours per week. Without specialization, an occupational therapist earned $30.00-$35.00/hour. Forrest testified that if Timothy were re-employed by the nursing home, he would earn no more than $30.00-$35.00/hour.

Debbie Holloway, Registered Nurse Director at Christus Schumpert Hospital (“Schumpert”), testified that she oversaw the wound center where Timothy worked, apparently on a part-time basis. When she began working with Timothy, the wound center was run by an occupational therapist, although at the time of trial it was run by a physician. Holloway testified that when Timothy’s contract employment with Schumpert ended he was earning $50.00/hour. Timothy was terminated when “concerns were brought forward” to Holloway. Holloway testified that for a period in 2006 and 2007, Timothy did not work at the hospital due to substance abuse treatment. The conditions of his return to work were set forth in a return to work agreement. Holloway testified that one of the conditions of his return to employment was Timothy’s agreement to follow a set schedule as assigned by the manager of his team which included meetings and counseling. Holloway testified that a component of Timothy’s termination was his failure to abide by the terms of the return to work contract. Holloway described Timothy’s work abilities as excellent. She also stated that although the hospital generally no longer hired contract labor, if it should, an individual with Timothy’s specialization and experience would earn $45.00-$50.00/hour. In Holloway’s opinion, if Timothy had abided by the terms of his return to work contract, he would have continued his employment with Schumpert with a salary of $50.00/hour.

|4Kristi testified that she was an employed teacher and earned a monthly salary of $3,976.25. She had remarried. At the time of trial, Cody was 13 and Caleb was 18 years old; Caleb had completed his first year of college. Kristi testified that it was her understanding of the child support agreement that Timothy was to pay $1,500/month until Cody reached the age of eighteen.

Timothy testified that he was trained as an occupational therapist, specializing in wound care. At the time of trial, Timothy was employed by Willis-Knighton Medical Center as an occupational therapist at the hourly rate of $33.25 which generated an annual salary of $75,000. He worked approximately 45 hours per week and had been employed by Willis-Knighton since October of 2007. He also maintained one nursing home contract from which he averaged income of $650.00/month. That monthly income fluctuated with patient volume. Timothy acknowledged that at the time of trial, an occupational therapist generally earned $40.00-$45.00/hour.

Timothy testified that he had recently been diagnosed with a degenerative disease in his spine which limited his ability to lift patients. At the time of trial, he lived with his parents and was unable to pay the $1,500 child support obligation. Timothy submitted an affidavit of income and expenses and a child support worksheet into evidence. Based upon his calculations, he requested a reduction in child support for his one minor child in the sum of $682.50. Timothy admitted that he had agreed to pay child support for two children until the youngest turned eighteen.

| ¡¡Timothy testified that he earned approximately $86,000 in 2006, although he admitted that he missed one month of work due to surgery. He made approximately $150,000 in 2005 and $140,000 in 2003. In 2007, he earned only $30,000 because Schumpert let him go in that year. Timothy testified that he also had less patient volume during 2007 at the nursing homes he served. He explained that his change in income was due to patient volume reduction caused by the change in wound care models utilized by hospitals and nursing homes. Basically, Timothy explained that the change in models resulted in physicians and nurses performing his job. Timothy testified that such a model could be done at a lesser cost and higher reimbursement to the hospital or nursing home. He was released from his job at Schumpert in May of 2007 “based on a corporate decision to let me go.” Timothy admitted to undergoing rehabilitation counseling for substance abuse which he completed in 2006. At the time of his release from employment, Timothy testified that he complied with monthly drug screening.

After considering this evidence and testimony, the trial court took the matter under advisement. In a written opinion, the trial court reduced the in globo child support award to $1,134.35/month. The court concluded that Timothy had experienced a loss of income which was both voluntary and involuntary. The court determined that Timothy had an earning ability of at least $40.00/hour and based the child support adjustment on that income | (¡potential. The court also concluded that the parties’ consideration of Caleb’s majority in the child support agreement “should be honored.”

Timothy appeals the judgment and argues that upon finding a material change in circumstances due to Timothy’s decrease in salary, the trial court erred in failing to set the child support obligation according to the child support guidelines for one child set forth in La. R.S. 9:315, et seq.

Discussion

A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. It has binding force from the voluntary acquiescence of the parties, not from the court’s adjudication. Gray v. Gray, 37,884 (La.App. 2d Cir.12/12/03), 862 So.2d 1097. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; Gray v. Gray, supra. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. It is not within the purview of this court to relieve an able party of an obligation which he freely and voluntarily entered into absent evidence of a vice of consent. Gray v. Gray, supra.

In Louisiana, as in a majority of other states, a parent generally has no legal duty to support his or her children beyond the age of 18. La. C.C. art. 227; La. C.C. art. 230. Nevertheless, La. R.S. 9:315.22(A) and (B) provide as follows:

|7A. When there is a child support award in a specific amount per child, the award for each child shall terminate automatically without any action by the obligor upon each child’s attaining the age of majority, or upon emancipation relieving the child of the disabilities attached to minority.
B. When there is a child support award in globo for two or more children, the award shall terminate automatically and without action by the obligor when the youngest child for whose benefit the award was made attains the age of majority or is emancipated relieving the child of the disabilities attached to minority.

An in globo child support award is not automatically reduced each time one of several children reaches the age of majority. Davis v. Davis, 43,490 (La.App. 2d Cir.10/22/08), 997 So.2d 149.

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq.; Strange v. Strange, 42,318 (La.App. 2d Cir.6/20/07), 960 So.2d 1223. The guidelines are intended to fairly apportion between the parties the mutual financial obligation they owe their children in an efficient, consistent and adequate manner. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. Strange v. Strange, supra.

The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A); Strange v. Strange, supra. The guidelines are mandatory and provide limits and structure to the trial court’s discretion in setting the amount of support. The trial court’s child support judgment will not be disturbed absent a clear abuse of discretion. Strange v. Strange, supra. There is a rebuttable presumption that the amount of child |ssupport obtained by use of the guidelines is proper and in the child’s best interest. La. R.S. 9:315.1(A).

A party seeking a reduction in child support must show a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La. C.C. art. 142; La. R.S. 9:311(A); Strange v. Strange, supra. Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. An involuntary change in circumstances results from fortuitous events or other circumstances beyond a person’s control, such as loss of one’s position or illness. A voluntary change in circumstances generally does not justify a reduction in the support obligation. Strange v. Strange, supra. Voluntary underemployment is a question of good faith of the obligor spouse. If a parent is voluntarily unemployed or underemployed, the child support obligation must be calculated on the basis of his or her income earning potential, unless the party is physically or mentally incapacitated or is caring for a child of the parties under the age of five. La. R.S. 9:315.11(A); Strange v. Strange, supra. A determination by the trial court of whether the spouse is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the wide discretion of the trial court. Davis v. Davis, supra; Luplow v. Luplow, 41,021 (La.App. 2d Cir.2/28/06), 924 So.2d 1135.

Initially, we note that even in the absence of the parties’ contract embodied in the 2007 consent judgment, La. R.S. 9:315.22 A and B can be |9construed together as requiring a specific automatic reduction provision in the existing child support judgment (Subpart A) in order to avoid the in globo consequences mandated by Subpart B. If Subparts A and B are firm rules allowing no challenge upon the event of one child reaching majority, such rules would promote a policy preventing further controversy to change the child support obligation since the conclusions reached in the prior judgment addressed in advance such event.

Nevertheless, we need not place a construction on La. R.S. 9:315.22 for application to this case since in our opinion the parties’ contract and prior consent judgment answer all questions concerning the matter. We do not lose sight of the important context in which this in globo child support award was agreed to by the parties. The agreement was reached virtually on the eve of the child’s eighteenth birthday and, significantly, concerned a partition of the community which also has presumptive economic trade-offs. Children upon reaching the age of 18 still may have economic needs over which the parents can reach an agreement for the child’s future benefit as a major. While the ongoing child support obligation was always subject to re-evaluation in the event of a material change in the parents’ income before the youngest child attains majority, the parties’ contractual understanding to continue an in globo determination for any such modification is clearly reflected as their agreement in this case. The trial court’s determination for modified child support therefore properly continued the parties’ agreement for an in globo award.

| mlt is also apparent that the trial court found that Timothy had proven a material change in circumstances through his loss of income that was both involuntary and voluntary. Holloway testified that a component of Timothy’s loss of his job with Schumpert was his noncompliance with the conditions of his return to work contract. Despite Timothy’s disagreement with this fact, the trial court obviously accepted Holloway’s testimony. If believed, Holloway’s testimony establishes that Timothy lost a large portion of his income by his own neglect. Forrest, however, testified that Timothy’s loss of nursing home income resulted through no fault of Timothy, but rather a change in the wound care model.

For the involuntary underemployment portion of Timothy’s loss of income, the trial court utilized his earning potential to establish Timothy’s income over his current wage of $33.00/hour. The trial court obviously accepted Timothy’s testimony that in his occupation, he could potentially earn $40.00-$50.00/hour at the time of trial. Thus, the trial court’s finding of earning potential is supported by Timothy’s own admission. When this earning potential is united with Kristi’s uncontested income, the parties’ combined monthly adjusted gross income totaled $10,909.25. At this income range, the child support guidelines establish the parties’ child support obligation for both children at $1,693.00. Timothy’s percentage of the total support amount for two children given his $40.00/ hour earning potential ($6,933.00 monthly) is $1,134.35, the adjustment made by the trial court. Given the broad discretion allowed the trial court in these matters, Inwe find no manifest error in the determination of Timothy’s level of income and the award of child support.

Conclusion

The judgment of the trial court fixing the child support obligation is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

      . The court also ordered Timothy to pay ar-rearages by income assignment order and denied the contempt claim.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Michael Scott CROSBY, Appellant.
    No. 43,864-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, John Ford McWilliams, Shreveport, Brady D. O’Callaghan, R. Bennett Langford, III, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

hA grand jury indicted defendant, Michael Scott Crosby, with one count of aggravated rape and one count of aggravated kidnaping. A jury returned a responsive verdict of guilty of forcible rape and could not reach a verdict on the kidnaping charge. The court sentenced defendant to 40 years imprisonment at hard labor on the forcible rape conviction. Defendant now appeals. For the reasons set forth below, defendant’s conviction and sentence are affirmed.

Facts

The Victim in this case was defendant’s estranged wife. Defendant and the victim were married in January 2000. They had one child together, a daughter, born in September 2004. In August 2006, the victim initiated divorce proceedings against defendant and moved with the child into an apartment in Bossier City; defendant lived in an apartment in Shreveport.

On Wednesday, September 20, 2006, the victim took the child to defendant’s apartment to leave her to visit that day with defendant. The victim and her daughter arrived at about 8:45 a.m. that morning. The victim went into the apartment to use the restroom and then began to discuss exchanging some property. Suddenly, defendant attacked the victim, cutting her hands with a box cutter, hitting her in the head with his fist, taping her wrists together with duct tape, and raping her. This all occurred while the two-year-old daughter played with markers on the floor.

At the conclusion of the assault, defendant allowed the victim to get up and go to the bathroom. She told defendant to call 911, and he did so. Defendant kissed his daughter goodbye and went outside to wait for police.

laThe first officer on the scene was Corporal Antoine Lane with the Shreveport Police Department. Corporal Lane saw defendant standing in the parking lot and spoke to him; defendant put his hands up and said, “Look, I’m the one you’re looking for ... I jumped on my wife or my soon to be ex-wife.” Defendant had bruises on his arm and complained that his hand or fist was hurting. Corporal Lane then arrested defendant.

Police later found the victim’s blood spattered on the floor and on the bed in defendant’s apartment along with a box cutter blade, the victim’s clothing and a used condom. The wounds on the victim’s hands required stitches, and her face was bruised. Defendant had bruises on his knuckles, what appeared to be bite marks on his right forearm, and the victim’s blood was found on his shorts and socks. A DNA profile on the rape kit sample recovered from the victim could not exclude defendant as the source but did exclude 99.77% of the Caucasian population.

Discussion

Self-Representation

Both appellate counsel and defendant’s pro se brief claim that defendant was denied his constitutional right to self-representation.

The supreme court explained the right to self-representation and the review of related trial procedures in State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003):

An accused has the right to chose between the right to counsel and the right to self-representation. State v. Strain, 585 So.2d 540, 542 (La.1991). An accused, however, will be held to have forfeited the right to self-representation if he vacillates | ^between self-representation and representation by counsel. United States v. Bennett, 539 F.2d 45, 51 (10th Cir.1976); United States v. Frazier-El, 204 F.3d 553 (4th Cir.), cert. denied, 531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000). In light of the fundamental significance attached to the right to counsel, the jurisprudence has engrafted a requirement that the assertion of the right to self-representation must be clear and unequivocal. See 3 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 11.3(a)(2nd ed.1999) (noting courts should “ ‘indulge in every reasonable presumption against waiver’ ”); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); State v. Hegwood, 345 So.2d 1179, 1181-82 (La.1977). Requests which vacillate between self-representation and representation by counsel are equivocable. Bennett, supra.
Whether the defendant has knowingly, intelligently, and unequivocably asserted the right to self-representation must be determined based on the facts and circumstances of each case. See State v. Strain, 585 So.2d 540, 542 (La.1991) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

The court in Bridgewater quoted Frazier-El, 204 F.3d at 560:

A trial court must be permitted to distinguish between a manipulative effort to present particular arguments and a sincere desire to dispense with the benefits of counsel. The circumstances surrounding Frazier-El’s purported waiver of his right to counsel and the assertion of his right to proceed without counsel in this case suggest more a manipulation of the system than an unequivocal desire to invoke his right of self-representation. Taking the record as a whole, we are satisfied that the district court was justified, when confronted with Frazier-El’s vacillation between his request for substitute counsel and his request for self-representation, in insisting that Frazier-E1 proceed with appointed counsel.

State v. Bridgewater, 823 So.2d at 895.

Defendant was charged with aggravated rape and aggravated kidnaping. The court appointed the Indigent Defender’s Office as defendant’s counsel. Defendant persisted in expressing his dissatisfaction with his appointed attorneys from the Indigent Defender Office, and on ^September 10, 2007, the court (Judge Scott Crichton) held a hearing at which defendant requested either a new attorney or to be allowed to represent himself. At that time, defendant was represented by David McClatchey from the ID office, and defendant asserted that neither McClat-chey nor his predecessor would obtain items that defendant wanted to present as evidence. Defendant first said that he wanted to represent himself and would try to obtain legal help through “legal aid,” but when the trial court informed the defendant that only the ID office provided criminal defense for indigents, Defendant said, “[T]hen I guess I’ll have to handle my case pro se.”

The judge then gave a stern warning to defendant that the decision to represent himself was particularly “ill-advised” because defendant faced a life sentence. Defendant responded by saying:

I do not feel like I’m smart enough or that I know enough about the law, but it’s better than having someone that will not represent me properly.

The court then allowed defendant to represent himself but appointed McClat-chey as standby counsel to assist him. The court directed McClatchey to give defendant his entire discovery file.

On the state’s motion, a sanity commission was appointed. Defendant was examined by two psychiatrists, both of whom gave the opinion that defendant was competent to stand trial. One of the doctors opined that defendant had a paranoid personality, and that defendant understood that it would not be in his best interest to continue as his own attorney, provided that the court could appoint an attorney that defendant trusted. The other |sdoctor opined that defendant was capable of knowingly and voluntarily making the decision to represent himself.

On December 17, 2007, Judge Crichton held a sanity hearing. Defendant told the court:

I would like to remind you and the State that I have never said that I wanted to take myself as counsel through the trial. I said I wanted to take over away from McClatchey who is helping the State, he has not subpoenaed evidence — gathered the evidence that I needed. He is working against me. He does nothing which I ask him to do. He’s acted maliciously towards me and I said that I would try to find another lawyer. At no point did I say that I wanted to take myself through to the trial.

After a brief recess, defendant asked for an attorney from outside of the ID office, and the court informed defendant that he could choose whether or not to be represented but could not choose which attorney represented him. Defendant continued to argue with the court that he wanted an attorney from outside the ID office. The court then engaged defendant in this dialogue:

Court: I want to be very clear about this. It is my viewpoint based on at least several court appearances that Mr. Crosby is trying to set the stage for some issue of this type to be raised during post conviction relief. I note that he was previously represented by Alan Golden of the Caddo Parish Public Defender’s Office in another section before that section recused itself. And my understanding is that there were the same issues brought forward. It’s my viewpoint that Mr. Crosby can either represent himself or — and be the spokesman for himself or the Caddo Parish Public Defender’s Office can and will represent him and be the spokesman for Mr. Crosby.
Now, your choice Mr. Crosby is that the Caddo Parish Public Defender’s Office represents you, that right?
| fiDefendant: That’s up to you. Like I said, if they will meet my criteria I will be happy to have them represent me. Pm just letting you know that if they do not meet my criteria I will come back before this court and ask to have them removed as my attorney. And to put it on a point, yes, sir, that’s fine. The Public Defender’s Office, I will be happy to take whoever they appoint.
Court: All right. The court reiterates that the Caddo Parish Public Defender’s Office is appointed to represent Michael Scott Crosby. And from this point forward a lawyer from that office will be your spokesman.

We note that the court did not rule that day on the sanity question.

The case was called for trial as previously scheduled on February 11, 2008, before Judge Jeanette Garrett. Judge Garrett commenced by reciting the procedural history of the sanity issue and noted that at the sanity hearing the court was interrupted by defendant at this hearing with defendant’s concerns about self-representation. As the court finished this recitation, defendant said, “You’re lying.” The court instructed defendant to be quiet, to which defendant replied, “You’re still lying.” The court continued and, noting that both doctors found defendant competent to proceed, ruled that defendant was competent to stand trial.

As the court attempted to continue, the judge was interrupted by outbursts from defendant stating that he did not accept McClatchey and that he fired him twice. Defendant then stated to the judge:

You’re withholding this material. You’re keeping me from getting a fair trial. You will be going to jail, lady, so don’t even worry about it. Mr. McClat-chey will not be representing me.

17Court reconvened later that afternoon with defendant present in court. As the judge began to address defendant, he resumed his interruptions. Pursuant to the judge’s instructions, the bailiff removed defendant from the courtroom, and the prosecutor noted for the record that at a bench conference prior to trial, the judge had admonished both sides to warn defendant that he would be removed from the courtroom if he continued with his disruptive conduct. Defendant was then returned to court, and the court instructed him that, among other things, he was not to speak unless he testified as a witness. The court noted for the record that it had been informed that, after defendant was , removed, he “just laughed about what [he] had just done in the courtroom.”

The court then observed:

And what I perceive going on here is Judge Crichton had this case for a long time. And now I have the case. And I had a transcript prepared of what occurred in court on December 17, 2007. And I want a copy of this transcript put into the record so that any reviewing court can clearly see what happened in court on December 17, 2007.
On that date, Judge Crichton ruled that the Caddo Parish Indigent Defender’s Office is going to be representing you in this trial. That ruling is final. And we’re not going to revisit that ruling. I also note that Judge Crichton noted for the record that he had lots of court appearances with you. And this kept going on where you would interrupt in court and that you wanted to represent yourself, but then you don’t and all of this. He noted that — this is Judge Crichton’s own words: “It is my viewpoint, based on at least several court appearances, that Mr. Crosby is trying to set the stage for some issue of this type to be raised during post-conviction relief.”

In the instant case, both of the district judges who considered this issue concluded that defendant’s vacillation concerning self-representation |swas merely an effort to manipulate the legal system and to foment a reversible error in the proceedings. Defendant affirmed in December 2007 that he would be happy to have the ID office represent him “if they will meet my criteria.” However, on the first day of the trial, defendant insisted upon his right to represent himself and disrupted the proceedings with allegations that, among other things, he had not received all of the relevant material in discovery. The record amply supports the conclusion that defendant’s insistence on self-representation, made on the morning of trial, was merely an effort to create an error in the trial proceedings which defendant might later raise in a higher court. Defendant’s request to represent himself was equivocal, not genuine or sincere, and untimely. See State v. Santos, 99-1897 (La.09/15/00), 770 So.2d 319.

Removal from Courtroom

Both appellate and defendant pro se argue that his removal from the courtroom violated his right to confront the witnesses against him. Louisiana Code of Criminal Procedure art. 831 provides, that a defendant charged with a felony shall be present throughout the proceedings; however, La. C. Cr. P. art. 832 provides, in part:

A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
(2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, he persists in conduct which justifies his exclusion from the courtroom.

|nIn Illinois v. Allen, 397 U.S. 337, 343-344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970), the U.S. Supreme Court explained:

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant ... :(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

At the beginning of trial each day, the trial judge made every possible effort to allow defendant to exercise his right to be present in the courtroom, but defendant insisted on deliberately interrupting the proceedings any time he was able to do so. Indeed, at one point, outside the presence of the jury, defendant managed to forcibly remove a gag placed simply to allow the trial judge to speak with defendant. In lieu of defendant’s physical presence in the courtroom, the judge made sure that defendant was able to hear the proceedings during the time that he spent in an anteroom with one of his two attorneys at his side.

Like his transparent efforts to disrupt the proceedings on the first day of trial, defendant deliberately engaged in misbehavior during the trial in order to, as the trial judge put it, “avoid the inevitable day of reckoning for what happened in this case.” The trial judge made repeated, although futile, efforts to have defendant present in the courtroom at the critical stages of trial, but defendant’s conduct demanded that the trial judge take action to 110ensure that the trial court continue in an orderly fashion. On one occasion defendant yelled, “F-you. F-you.” at his attorney.

Denial of Right to Testify

Both appellate counsel and defendant pro se urged that the -trial court erred in stopping the proceedings and having him removed during his testimony; he asserts that this action deprived him of his right to testify.

Outside the presence of the jury, defendant’s attorney discussed with the judge the possibility that defendant would testify and stated that he had been unable to discuss the issues with defendant because he had stopped talking to the attorney. The court had defendant brought into the courtroom, explained to him how his testimony, should he choose to testify, would be given. Defendant informed the court that he wanted to testify, affirmed that he would cooperate with the question and answer format and stated that he would behave himself. However, defendant refused to speak with either of his attorneys despite the court’s effort to give him that opportunity. The court ordered that defendant be shackled but directed that the seats in the courtroom be arranged so that the jury could not see that defendant was restrained. His attorney objected to the restraints, but the court advised that every effort would be made to hide the restraints from the jury. The court had defendant sworn outside the presence of the jury and had him placed in the witness stand before the jury came in; when asked if his seating arrangement was acceptable by the bailiff, defendant said, ‘Tm perfectly fine with that. And I’ll say that on the record.” The court noted that the jury was not able to see the shackles.

| n The jury was brought in, and McClat-chey began to question defendant. He testified to his birth date, that he had no prior convictions or arrests, and that he had been married to the victim. His attorney asked defendant if he raped or kidnapped her, to which defendant responded, “no.” However, as soon as his attorney began to question him about the events of September 20, 2006, defendant stated:

I’d like to say that you, the state, and the judge have conspired to conceal evidence to prove that I am innocent.... And the police planted evidence.... Rodney Roach did not make his report until 30 minutes after he left the scene.... And that he said that—

The court then had the jury removed from the courtroom. The court then stated that, defendant’s conduct amounted to a waiver of his right to testify. Defense counsel objected to that ruling and moved for a mistrial, which was denied. Defense counsel objected to the court’s ruling. The defense rested at that point.

An accused’s right to testify is a fundamental right of constitutional dimension and is protected by the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and by La. Const. art. I, § 16. State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233, citing Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2710, 97 L.Ed.2d 37 (1987).

As stated, the right of presence in the courtroom can be waived by the defendant’s contumacious conduct; likewise, the privilege of testifying can also be waived by the defendant’s conduct. These privileges cannot be lost unless it is clearly necessary to assure the orderly conduct of the trial. Illinois v. Allen, supra. See, e.g., U.S. v. Ives, 504 F.2d 935, 941-42 (9th Cir.1974), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), on remand, 547 F.2d 1100 (9th Cir.1976). See also Douglas v. State, 166 P.3d 61 (Alaska App.2007).

In Illinois v. Allen, supra, Justice Brennan stated in his concurring opinion, “[T]o allow the disruptive activities of a defendant like respondent to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.” 397 U.S. at 350, 90 S.Ct. at 1064.

The determination of what conduct constitutes disruption and what method of control should be adopted is largely within the discretion of the trial judge. The trial judge must decide whether the seriousness of the disruption is sufficient to constitute a waiver of the privileges. In addition, a defendant must be warned of the consequences of his actions before a court can determine that he has waived his privileges to be present and to testify.

Because an appellate court reviews a cold record, Illinois v. Allen, supra, it is not in as good a position as the trial judge to determine the effect of a defendant’s disruptive conduct. Facial expressions, gestures and other nonverbal conduct are significant. Therefore, great deference must be given to the decision of the trial judge. Id.

There is a delicate balance between allowing an accused to defend himself against a criminal charge and maintaining the necessary decorum in h3the courtroom. A trial judge must approach this decision with great circumspection and consider, among other things, the gravity of the disruptions, the likelihood of continued disruption and the possibility of violence if the defendant takes the stand. In considering the probability of continued disruption and violence, the judge must be mindful of the previous misconduct. Id.

In this case, the record reflects that defendant was not deprived of his right to testify. In fact, he used the cover of disruptive behavior to again not testify or be cross-examined as to what happened in his apartment. Once he took the stand, he stated he had no prior convictions or arrests and he did not “rape” the victim. The next question posed to him asked what happened in his apartment on the date of the incident. Rather than answering the question, defendant began to disrupt the trial with a tirade. By doing so, defendant was able to deny to the jury that he committed these offenses and then to cause himself to be removed from the courtroom, effectively avoiding an explanation of what actually happened and denying the prosecutor the opportunity to cross-examine him.

Pro-Se Assignment of Eiror 1. Gross miscarriage of justice.

In his brief, defendant raises a variety of alleged errors in the trial proceedings. Some of these allegations refer to pre-trial matters, such as arraignment, preliminary examination, speedy trial or the amount of his bail. Other errors related to alleged mishandling of evidence and claimed that 114items of evidence were “planted” by the state to bolster its case. The record reveals no evidence of prejudicial mishandling of evidence by any party and does not indicate that defendant objected to such evidence at trial. Further, in this case there was no question of identity; defendant’s former wife identified him as the perpetrator of the offenses. No evidence contradicted the victim’s evidence that she was assaulted, battered, and raped.

Defendant also alleges ineffective assistance of counsel. To the extent that review is possible from the appellate record, defendant’s allegations are unfounded; the record shows that defendant’s attorney was a zealous advocate for his client, and indeed the verdict in the case tends to support the conclusion that defendant’s attorney acted with skill in testing the state’s evidence.

Conclusion

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

      . The U.S. Supreme Court vacated this case for further consideration of the defendant's competence to proceed.

      . Frankly, it was the prosecutor who should have objected to the court’s action. After defendant's rant against the first responders, he should have been asked directly what happened.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. LaCarlos FULLER, Appellant.
    No. 44,013-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.
    LaCarlos Fuller, Pro Se.
    G. Paul Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, C. Sherburne Sentell, III, Assistant District Attorney, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 The defendant, LaCarlos Fuller, appeals a judgment from the Twenty-Sixth Judicial District Court, Webster Parish, State of Louisiana, following his guilty plea for one count of distribution of cocaine, a violation of La. R.S. 40:967(A). Fuller was sentenced to fifteen years’ imprisonment at hard labor. The defendant’s appellate counsel has filed a motion to withdraw, together with an Anders brief in support of the motion. The state has filed a letter, noting appellate counsel’s Anders brief and agreeing that there are no nonfrivolous errors to be raised in an appeal of Fuller’s case. On October 21, 2008, this court rescinded the previously fixed pro-se briefing deadline and notified Fuller that he may file a brief in this appeal within 30 days of its order and request to view the appellate record within 10 days of the date of this order. The defendant has not requested the record and has not filed any brief. Consequently, the motion to withdraw is granted, and Fuller’s conviction and sentence are affirmed.

On May 5, 2007, in Webster Parish, Louisiana, Fuller sold $40.00 worth of crack cocaine to a police confidential informant, which transaction was recorded on audio and video surveillance as part of Minden Police Department undercover drug surveillance operations. The substance was later sent to the North Louisiana Crime Lab and was determined to be crack cocaine. Fuller was charged by bill of information with two counts of distribution of cocaine pursuant to La. R.S. 40:967(A), and he ultimately pleaded guilty to one count of the charged offense in exchange for the following: (1) the dismissal of count two of the bill of information; (2) an agreement not to file a habitual offender bill of information; (3) the J^determination of his sentence after ordering a presentence investigation report; and, (4) a sentence cap of 20 years. The terms of the plea bargain agreement were made part of the record, which was expressly agreed to by the defendant. Subsequently, the trial court sentenced Fuller to 15 years at hard labor with credit for time served. This appeal ensued.

Fuller’s appellate counsel has filed an Anders brief, seeking to withdraw, which alleges that he could find no nonfrivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 1996-2669 (La.12/12/97), 704 So.2d 241, 242; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). As required, the brief outlines the procedural history of the case and the recitation of facts presented during the guilty plea hearing. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Defense counsel further verifies that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, and Benjamin, supra. This court held the motion to withdraw in abeyance and advised Fuller of his right to file an appellate brief within 30 days of this court’s October 21, 2008 order deferring a ruling on counsel’s motion to withdraw. As of this date, Fuller has not responded to the notice.

Additionally, this court has conducted an error patent review of the appellate record and one error patent was found. The trial court failed to ^specify that the first two yeai's of Fuller’s sentence shall be served without benefit of parole probation or suspension of sentence. This sentencing error is automatically corrected by operation of law. See La. R.S. 15:301.1.

No other errors patent were found. The bill of information and arraignment were correctly done. There were no other errors patent found in the guilty plea or sentencing proceedings. Fuller’s sentence of 15 years’ imprisonment at hard labor, which is 5 years below the sentencing cap, is not excessive considering his lengthy criminal history. Even so, where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, such as in the case sub judice, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. See also La. C. Cr. P. art. 881.2; State v. Young, 1996-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.08/15/07), 962 So.2d 1214; State v. Smith, 39,719 (La.App.2d Cir.05/11/05), 903 So.2d 598.

So considering, the motion to withdraw is granted, and LaCarlos Fuller’s conviction and sentence are affirmed.

AFFIRMED.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Carl Joseph KELLY.
    No. 10-KA-528.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2010.
    Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, 23rd Judicial District Court, Donald-sonville, LA, for Plaintiff/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Pefendant, Carl Kelly, was indicted by the St. James Parish Grand Jury on a charge of second degree murder in violation of La. R.S. 14:30.1. He proceeded to trial on September 11, 2007. After a two-day trial, a unanimous 12-person jury found defendant guilty as charged. The trial court subsequently sentenced defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

In his sole assignment of error on appeal, defendant claims his trial counsel was ineffective in failing to object to the trial court’s improper jury instruction on retreat as it applies to self-defense, and in failing to request that the court instruct the jury as to the provisions of La. R.S. 14:20(C) and (D). Defendant argues La. R.S. 14:20(D) prohibits the trier of fact from considering the factor of retreat in deciding whether the defendant’s use of deadly force was reasonable. For the reasons that follow, we affirm defendant’s conviction and sentence.

\ .FACTS

On the afternoon of January 7, 2007, Detective Claude Louis, Jr. with the St. James Parish Sheriffs Office responded to a shooting call at the Sugar Hill Trailer Park. Upon his arrival, he noticed the victim, Deandre Alexander, lying on the ground. He provided first aid to the victim and helped EMS personnel put the victim into an ambulance. The coroner subsequently arrived at the scene and pronounced the victim dead at 4:00 p.m. After examining the body in the ambulance, the coroner determined the victim “bled out” due to gunshot wounds to his lung and heart. An autopsy showed the victim was shot two to three times, with two significant entry wounds to the back of his torso. The pathologist testified that either one of these wounds could have been fatal by itself. He found no signs that the bullets were fired at close range and, thus, determined the victim was shot from some distance.

The victim’s mother, Yolanda Muse, testified that she and her family moved to the Sugar Hill Trailer Park in September 2006. On the day her 17-year-old son, Deandre was killed, she and her 16-year-old son, Christopher, were across the street from the family’s trailer talking to a neighbor when she saw defendant pointing a gun at Deandre. She heard Deandre say something inaudible and then heard shots. Ms. Muse yelled at Deandre to go home. He turned and ran toward their trailer, and the shooting, continued until Deandre fell to the ground. Ms. Muse heard five or six shots fired all together.

Christopher explained that he saw Deandre walking down the street with a group of people. He looked away from his brother for a time, and when he turned again, he saw Deandre and defendant facing each other. He then saw defendant 14pull out a gun and shoot Deandre. Christopher testified that Deandre turned and ran 20 to 30 feet, while defendant continued shooting at him.

Fourteen-year-old Ramon Kennard testified he and Deandre were walking together in the trailer park when they passed defendant. Ramon stated defendant bumped into Deandre with his shoulder, and then Deandre punched defendant. Thereafter, defendant pulled out a gun and shot Deandre three times. As Deandre started to run away, defendant shot him two times in the back. Ramon explained Deandre was able to get in front of his family’s trailer before he collapsed. Ramon testified that Deandre did not have a weapon.

According to Michael Carroll, defendant lived with him and his girlfriend for a time while defendant dated Mr. Carroll’s stepdaughter. Mr. Carroll testified that one week before the murder, someone fired a gun at his trailer that resulted in buckshot holes in the bedroom wall. He reported the shooting to the police, but did not know who shot the trailer. He told police he believed someone named Willie or Woody had done it. A few days later, Mr. Carroll heard Deandre tell defendant that he was the person who had shot the trailer, and that he wished he had hit someone. Two days before the murder, Mr. Carroll and defendant walked out of their trailer and saw a “commotion” involving Deandre. Referring to Deandre, defendant told Mr. Carroll that he was going to “whack” him one day.

After interviewing witnesses at the scene, police officers obtained an arrest warrant for defendant. He was arrested at 12:45 a.m. on January 8, 2007, hiding inside a vacant trailer in the trailer park. Defendant subsequently gave a statement after being advised of and waiving his rights. Defendant stated he was walking down Sugar Hill Street when he happened upon Deandre at which time Deandre hit him on his chest. Defendant said he pulled a .25 caliber semi-automatic handgun and fired it at Deandre. Defendant could not recall how many shots he fired while | she and the victim faced each other. Defendant stated he fired more rounds as Deandre tried to get to his trailer, and then Deandre collapsed. Defendant told the detective that Deandre did not have a gun or a knife and he did not try to grab defendant. Defendant stated he ran from the scene and discarded the gun behind some dumpsters in a wooded area. He then hid in the vacant trailer until deputies found him. Defendant informed the detective that two days before the shooting, his girlfriend was involved in an argument with Deandre.

At trial, defendant testified he was walking along the street when he saw Deandre. Defendant stated he was worried because Deandre always picked on him. Deandre approached defendant and asked him if he had cautioned defendant’s girlfriend about “playing with” Deandre. Defendant replied that he had at which time Deandre punched defendant in his collarbone and said he was going to get a gun. Defendant testified he was scared because Deandre had shot at his trailer the previous week and had told defendant he should have killed him. He stated he pulled his own gun because he did not want to take a chance that Deandre would kill him or one of the other people living in his trailer.

Defendant admitted shooting Deandre in the back. Although he told Detective Louis during his statement that the shooting was a reaction to Deandre hitting him, defendant testified he shot Deandre because he believed the victim was going to get a gun. Defendant stated he did not see Deandre with a gun or a knife at any time.

In rebuttal, the State called defendant’s girlfriend, Shandreka Russell. In her statement to Detective Louis on the day of the murder, she stated that prior to the shooting, defendant told her he was going to take care of some business, and that he pulled up his shirt to show her a small, black, semi-automatic handgun. She told Detective Louis that she believed defendant was going to kill someone. At | ñtrial, Ms. Russell recanted these statements. She testified that she spoke with defendant just before the shooting, and that he told her only that he was going down the street.

LAW AND ANALYSIS

Defendant argues he received ineffective assistance of counsel because his trial counsel failed to object to what he claims was an erroneous jury instruction on self-defense.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that 1) his attorney’s performance was deficient, and 2) the deficiency prejudiced him. To demonstrate prejudice under this test, the defendant must show that the outcome of the trial would have been different but for his counsel’s unprofessional conduct. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Nguyen, 06-969, p. 8 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 65, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628.

Generally, an ineffective assistance of counsel claim is best addressed in an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. But, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Taylor, 04-346, p. 10 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. We find the record on appeal is sufficient for us to address the merits of defendant’s claim.

The defense theory at trial was that of self-defense. La. R.S. 14:20, pertaining to self-defense, provides, in pertinent part:

|7A. A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

In charging the jury, the trial court gave the following instruction:

A homicide is justifiable if committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. The danger need not have been real as long as the defendant reasonably believed that he was in actual danger. Some factors that you should consider in determining whether the defendant had a reasonable belief that the killing was necessary are the possibility of avoiding the necessity of taking human life by retreat, the excitement and confusion of the occasion, the possibility of preventing the danger to himself by using force less than killing, and the defendant’s knowledge of the assailant’s dangerous character.

[Emphasis added.]

The trial court properly charged the jury with regard to the provisions of La. R.S. 14:20(A)(1). However, the court erred in including retreat as a factor for the jury to consider, in contravention of La. R.S. 14:20(D). The record does not show that defense counsel objected to the improper jury charge either in discussions with the prosecutor and judge prior to closing arguments or at the time the judge issued |sthe instructions. In failing to object to the jury charge regarding retreat, defense counsel effectively waived the issue for appeal. La.C.Cr.P. art. 801(C).

Since defendant’s primary theory of defense was self-defense, we find trial counsel was deficient in failing to object to the improper charge regarding retreat and in failing to request a special jury charge on the provisions of La. R.S. 14:20(C) and (D). Nonetheless, we do not find defendant was prejudiced by counsel’s error and, thus, the second prong of the Strickland test is not satisfied.

A conviction will not be overturned on the grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Motton, 395 So.2d 1337, 1348 (La.1981), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981). An erroneous instruction is subject to harmless error review, or in the case of an ineffective assistance of counsel claim, an analysis of whether the defendant was prejudiced by the error. See State v. Hongo, 96-2060, pp. 4-6 (La.12/02/97), 706 So.2d 419, 421-22; State v. Morris, 09-0422, pp. 19-20 (La.App. 1 Cir. 9/11/09), 22 So.3d 1002, 1014. The question becomes whether it appears beyond a reasonable doubt that the erroneous instruction did not contribute to the jury’s finding of guilt or whether the error is unimportant in relation to everything else the jury considered, as revealed in the record. State v. Smith, 600 So.2d 1319, 1326 (La.1992). Stated another way, the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the jury charge error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

[9We find the present case very similar to State v. Morris, supra, wherein the First Circuit addressed an ineffective assistance of counsel claim under facts similar to those in the instant case. The defendant in Morris was convicted of second degree murder. The series of events culminating in the murder began two or three days earlier. The defendant and the victim lived in the same neighborhood. The defendant’s mother and the victim’s cousin became involved in a verbal altercation, and the defendant, who happened upon the scene, beat up the cousin. The victim then hit the defendant. Following that incident, the defendant made numerous attempts to meet up with or confront the victim.

On the day of the murder, the victim was walking down the street near the defendant’s trailer home. The defendant was seen talking on his cellular telephone outside of his trailer. He told the other party on the other end, “Hold on. I gotta handle some business.” The defendant beckoned the victim and his friends to approach him. The victim and the defendant then “squared up like they were [going to] fight.” State v. Morris, 09-0422 at 4, 22 So.3d at 1005. The defendant pulled a gun from under his shirt and shot the victim. The victim attempted to run away, but he tripped and fell, and only managed to crawl a short distance. The defendant fired at the victim five more times. The victim did not have a weapon in his hands. The defendant fled the scene and disposed of the weapon.

On appeal the defendant argued that his trial counsel was ineffective in failing to object, under La. R.S. 14:20(D), to a jury charge referencing retreat. The defendant also complained that counsel was ineffective in failing to request that the trial court charge the jury on the provisions of La. R.S. 14:20. The court found that the defendant’s trial counsel did . not perform deficiently in failing to ask for a special instruction on La. R.S. 14:20, since the trial court gave a sufficient general charge on self-defense. The court further held that even if the defendant’s trial | incounsel was deficient in failing to object to the trial court’s reference to retreat, the defendant was not prejudiced. The court found the erroneous jury charge was harmless. The court reasoned that the defendant confronted the victim in a place where the victim had every right to be, and he shot the victim repeatedly as he tried to escape.

In the present case, considering the evidence at trial and the trial court’s instructions as a whole, we conclude the verdict was surely unattributable to the erroneous jury charge regarding retreat. There was overwhelming evidence that defendant did not act in self-defense. According to eyewitness Ramon Kennard, it was defendant who began the confrontation by bumping into Deandre when the two passed each other on the street. Ramon testified that defendant told the victim, “I been [sic] waiting on this day,” before pulling out his gun. Defendant fired multiple shots at the victim, and then continued to shoot at him even after he turned and ran. Eyewitnesses, Ms. Muse and Christopher Alexander, and even defendant testified that the victim did not have anything in his hands at the time of the shooting. The lethal wounds were inflicted from bullets to the victim’s back that were fired from some distance away. Thus, we find that the erroneous retreat portion of the jury charge in question, certainly did not prejudice the defendant.

In accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547, we reviewed the record for errors patent. The record shows that at the time he was initially sentenced, defendant was properly advised of the prescriptive period for filing for post-conviction relief as required by La.C.Cr.P. art. 930.8. But, the trial court subsequently vacated the sentence and re-sentenced defendant_[_ywithout advising him of the two-year prescriptive period. By way of this opinion, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. arts. 914 or 922.

For the foregoing reasons, we affirm defendant’s conviction and sentence for second degree murder.

CONVICTION AND SENTENCE AFFIRMED.

      . The victim’s name is spelled "De’Andre" throughout the trial transcript, but it is spelled "Deandre" in the indictment.

      . Subsections (C) and (D) were added to La. R.S. 14:20 by Act 2006, No. 141, § 1, which became effective August 15, 2006, almost five months before the date of the charged offense.

      . La.C.Cr.P. art. 801(C) provides:
      A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

      . La. R.S. 14:21 states, "[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” We note that the jury was properly instructed in this regard.