author: GREMILLION, Judge.

text:
    Patricia CASE and Patrick Case v. SHELTER INSURANCE COMPANY, et al.
    No. 10-302.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Joseph E. Windmeyer, Metairie, LA, Donald W. Price, Dué, Price, Guidry, Piedrahita & Andrews, APLC, Baton Rouge, LA, for Plaintiffs/Appellants, Patricia Case, Patrick Case.
    Michael J. Breaux, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Shelter Insurance Company, Barry Frederick, Burt Oubre, d/b/a Burt Oubre Farms.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Plaintiffs/Appellants, Patricia and Patrick Case, appeal the judgment rendered following the jury trial of their personal injury claims from a motor vehicle accident in St. Martin Parish. For the following reasons, we affirm as amended.

FACTS

The motor vehicle accident at issue occurred on May 22, 2006. Patricia Case was driving from work with the St. Martin Parish School Board toward Loreauville, Louisiana, to purchase groceries. She testified that she happened upon the tractor driven by Barry Frederick, an employee of Burt Oubre, d/b/a Burt Oubre Farms, which was traveling in the same direction. Mrs. Case testified that as she turned from Louisiana Highway 86 onto Oday Road, she saw the tractor already on the road. She followed the tractor “a little ways” before deciding to pass it: Her testimony was vague as to the distance from her the tractor was when she first noticed it. She testified that she saw no lights whatsoever on the tractor. As she executed the passing maneuver, Mrs. Case’s vehicle was struck by the tractor, which had turned left across her path. The initial collision deployed Mrs. Case’s air bag. Thereafter, a second collision occurred.

Frederick testified that he was cutting drains in his employer’s sugar cane fields. He had finished cutting drains on one field and was proceeding to another. This necessitated turning onto Oday Road. He traveled approximately two-tenths of a mile to reach his next field. The tractor’s hazard lights, or “flashers,” were activated. He checked his rear view mirror in the cab and saw no approaching vehicles. Frederick did not signal a left-hand turn. As he began to turn, Frederick heard the sound of tires screeching. He jerked the tractor back to the right, but was unable to avoid colliding with Mrs. Case’s vehicle. The accident occurred perhaps 12two feet across the center line of Oday Road, within Mrs. Case’s passing lane.

Following the collision, Mrs. Case experienced back pain radiating into her legs. She initially sought treatment from her family physician, Dr. Kenneth Fournet, with whom she treated for some months. Thereafter, Mrs. Case was treated by orthopedic surgeon Dr. Allen Johnston. Ultimately, Dr. Johnston referred Mrs. Case to Dr. Louis Blanda, who performed a lumbar microdiskectomy and laminectomy in December 2007.

The Cases filed suit against Frederick, Oubre, and Shelter Insurance Company. The suit was tried in March 2009. The jury found Mrs. Case 25% and Frederick 75% comparatively negligent. Mrs. Case was awarded $200,294.32 in general and special damages. Mr. Case was awarded $5,000.00 in past and future loss of consortium, services, and society. The Cases appealed this judgment.

ASSIGNMENTS OF ERROR

The Cases assign the following errors: 1) The jury manifestly erred in assessing Patricia Case with fault, and 2) The jury manifestly erred in awarding $49,998.00 in general damages.

ANALYSIS

The Cases’ assignments of error involve findings of fact by the jury. As such, they are subject to review for manifest error. The Louisiana Supreme Court has explained this analysis:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong U(manifestly erroneous).
See Mari v. Hill, 505 So.2d 1120, 1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).... Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 888 (La.1998).

Comparative fault:

Left-turning and overtaking motorist collisions represent the classic comparative fault scenario. In the case of interaction between left-turning and overtaking motorists, the law imposes duties on both. A vehicle passing on the left is to be given the right of way after it emits an audible signal. La.R.S. 32:73(2). Passing on the left is considered a dangerous maneuver, and a driver of a passing vehicle is held to a high degree of care. Neal v. Highlands Ins. Co., 610 So.2d 177 (La.App. 3 Cir.1992), writ denied, 612 So.2d 100 (1993). The same degree of care is owed by the left-turning vehicle. Id. The left-turning motorist is tasked by La.R.S. 32:104 with the obligation to signal his intention to turn and to refrain from turning until he has ascertained that it is safe to do so.

In the present matter, Frederick failed to fulfill his obligation to properly signal |4his turn. Mrs. Case claims to have blown her horn before attempting to pass Frederick. However, Frederick heard no horn. Deputy Franklin Washington, the investigating officer, did not note Mrs. Case indicating during his investigation that she sounded her horn; further, Washington testified that, had Mrs. Case indicated that she sounded her horn, he probably would have noted that in his accident report. The report contained no such notation. Thus, a permissible interpretation of the testimony the jury heard is that Mrs. Case, too, failed to fulfill her statutory obligation to sound her horn. This would constitute a credibility determination on the jury’s part, as they heard conflicting testimony on this issue.

The accident occurred on a rural road lined with cane fields on both sides. The tractor had its warning lights activated. The brake lights on the tractor were working, according to Frederick, and no witness contradicted this testimony. The tractor was moving at a slow pace on a road with a 35 mile per hour speed limit. According to Frederick, he began slowing well before attempting the turn. Mrs. Case denied seeing any lights on the tractor. We do not know whether the jury considered that because she did not see lights, Mrs. Case was inattentive.

A thorough review of the record presents sufficient evidence the jury could have considered in assessing fault on Mrs. Case. We are precluded from finding manifest error in that assessment.

General damages:

The Cases also complain of the jury’s assessment of general damages. The verdict form presented to the jury is illuminating. The pertinent section is reproduced below:

Did Plaintiff, Patricia Case, suffer any injuries and related | ¿damages proximately
caused by the accident?
YES X NO
(NOTE: If you answered NO to Question 4, proceed to Question 6. If you answered YES to Question 4, proceed to Question 5.)
5.
What amount, if any, in dollars and cents, will compensate Patricia Case for her injuries?
1. Past medical expenses $35,096.32
2. Future medical expenses $ 3,000.00
3. Past loss wages $18,700.00
4. Future loss of earning capacity $93,600.00
5. Past physical pain and suffering $ 8,333.33
6. Future physical pain and suffering $ 8,333.33
7. Past mental anguish and distress $ 8,333.33
8. Future mental anguish and distress $ 8,333.33
9. Loss of enjoyment of life $ 8,333.33
10.Permanent Disability $ 8,333.33

The figures assessed by the jury are significant in three respects. First, the amount assessed for past medical expenses is precise. This was the amount the parties stipulated to, subject to the defendants’ objections to materiality, relevance, and causal relation. The jury obviously considered this evidence in assessing damages.

Second, the jury assessed $18,700.00 in past wage losses. This was the amount the appellants’ economic expert, Dr. Randy Rice, testified was Mrs. Case’s loss. Again, the jury’s damage assessment comported with the evidence presented.

Lastly, the jury awarded identical $8,333.33 amounts for the six physical and psychological injury items on the verdict form. This suggests the jury had in mind a specific sum it wished to award in general damages and divided it evenly between the six items.

1 fiThe fixing of general damages by a jury is discretionary. As the Louisiana Supreme Court stated:

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion, Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). And, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient,” Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate.

Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993) (citations omitted). There must, therefore, be a clear abuse of the jury’s great discretion, as evidenced by the individual circumstances of the plaintiff, viewed in a light that most favorably supports the judgment, before this court may disturb a damage award.

Appellants rely heavily on previous cases to support their contention that the award is abusively low. In Youn v. Maritime Overseas Corp., 623 So.2d 1257, (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court said that “[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Id. at 1260. While making this initial inquiry, we are specifically prohibited from using “a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the |7facts and circumstances peculiar to the particular ease.” Id. at 1260. The rule is that such prior awards should be considered only after we have concluded that there has been an abuse of discretion. We are compelled to examine the record in this case to determine whether the award is abusively low.

Mrs. Case testified that before her surgery, she continued to perform her pre-accident household chores because they had to be done. However, she experienced constant throbbing and pain in her back and legs. After surgery, Mrs. Case had no pain in her legs. She testified that her only problem post-surgery is back pain when she bends or climbs, and periodic numbness in her toes that lasts about ten minutes. However, at another point in her testimony, Mrs. Case indicated that she had back pain daily. The pain interfered with her relationship with her husband and limited her ability to perform household tasks.

Mr. Case, though, testified that his wife’s recovery after surgery exceeded his expectations. She moves around “pretty good.” She still complains at times in the morning when she gets out of bed. Mrs. Case has a niece who lives nearby who helps with housework. Otherwise, she goes about her daily routine.

Dr. Blanda testified that the disc herniation for which he performed the microdis-kectomy and laminectomy was relatively small. He did not see the need to perform a lumbar interbody fusion as he would on a patient with a more significant herniation. The procedure he performed, while not to be trivialized, was a minimally-invasive procedure, involving an incision about an inch long into which the surgical instruments are inserted.

Dr. Blanda also testified that Mrs. Case’s disability in terms of work was probably limited to her recovery period, which could be hastened should she undergo |stherapeutic “work hardening.” He felt she would have some permanent restrictions on her activity level, such as no lifting over 50 pounds. While he was not conversant with the physical requirements of a cafeteria worker such as Mrs. Case, Dr. Blanda agreed that she could return to work as a cafeteria worker if she could do so subject to the 50-pound lifting limit.

Dr. Blanda also testified that he had last seen Mrs. Case approximately four months before trial and she had indicated that she felt much better and was no longer having any problems with pain radiating into her lower extremity. She only experienced back pain when, the weather changed, a symptom that could be related to degenerative changes in Mrs. Case’s spine that predated the accident. Her pain was confined to occasional flare-ups.

It also bears mentioning that Mrs. Case continued to work from the time of the accident until her surgery. Her fellow workers knew of her problems and pitched in to accommodate her. If she was able to work before the surgery, and if the surgery helped her condition, this tends to bolster Dr. Blanda’s opinion that Mrs. Case should be able to return to work with limitations.

A consideration of the record as a whole reveals that Mrs. Case suffered a herniated lumbar disc for which she underwent surgery, There was no issue of the accident causing the herniation. Mrs. Case’s subsequent surgery was limited and successful. It was, however, invasive surgery. She continues to experience periodic back pain, but has otherwise made a good recovery. Nonetheless, when considering the record as a whole, we are required to find the award of $49,999.98 in general damages below the range of the jury’s discretion.

In Este v. State Farm Ins. Cos., 96-99 (La.App. 8 Cir. 7/10/96), 676 So.2d 850, |9we held that an award of $75,000.00 was the lowest amount within the court’s discretion for the aggravation of a pre-exist-ing, asymptomatic, spondylosis and bulging disk that did not warrant surgery. If a simple bulging disk and aggravation of an asymptomatic spondylosis can be awarded a minimum of $75,000.00 in general damages, an active herniation of a disk with surgical intervention warrants a general damage award of $100,000.00; any amount below that would be considered an abuse of the jury’s vast discretion.

CONCLUSION

The jury’s assessment of comparative fault is reviewed under the manifest error standard. This requires a finding that such assessment is not reasonably supported by the record and is clearly wrong. We find no such manifest error. The review of the general damages assessment is conducted under a much more rigorous abuse-of-discretion standard. That review is also conducted in a light most favorable to supporting the judgment. We find the jury did abuse its discretion, and amend the general damage award to $100,000.

Accordingly, the judgment of the trial court is affirmed as amended. Costs of this appeal are taxed equally to appellants, Patrick and Patricia Case, and appellees, Barry Frederick, Burt Oubre, d/b/a Burt Oubre Farms, and Shelter Insurance Company.

AFFIRMED AS AMENDED.

      . The actual general damage award totaled $49,999.98.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Steven Mark “Marc” ANDERSON.
    No. 10-0256.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Michael Harson, District Attorney, Allan P. Haney, Assistant District Attorney, Lafayette, LA, Counsel for Appellee State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, Counsel for Defendant/Appellant Steven Mark “Marc” Anderson.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and, SHANNON J. GREMILLION, Judges.
   PETERS, J.

hThe defendant, Steven Mark Anderson, appeals his adjudication as an habitual offender and the sentence imposed by the trial court. For the following reasons, we affirm the adjudication and sentence in all respects, but remand the matter to the trial court to correct the trial court minutes of the adjudication proceedings.

DISCUSSION OF THE RECORD

In November of 2007, a jury convicted the defendant of theft of a firearm, a violation of La.R.S. 14:67.15, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. After the trial court sentenced him to serve concurrent sentences of thirteen years at hard labor without benefit of probation, parole, or suspension of sentence for the theft conviction, and five years at hard labor without benefit of probation, parole, or suspension of sentence for the possession charge, the defendant appealed. This court affirmed the convictions and sentences. State v. Anderson, 08-962 (La.App. 3 Cir. 02/04/09), 2 So.3d 622, writ denied, 09-518 (La.11/20/09), 25 So.3d 786.

The matter is now before us again because on July 18, 2008, and while the initial convictions and sentences were still before this court, the State of Louisiana (state) filed two separate bills of information charging the defendant as an habitual offender pursuant to La.R.S. 15:529.1. The first bill of information, which is three pages in length, provides in pertinent part:

I.

Steven Mark Anderson, date of birth: October 22, 1969, SSN: XXX-XX-XXXX, hereinafter referred to as THE DEFENDANT, was duly convicted in the 15th Judicial District Court, Parish of Lafayette, Criminal Docket Number: 110556, of the following felony(ies) of: Theft of a Firearm and possession of a Firearm by a Convicted Felon, on November 27, 2007, hereinafter referred to as THE SUBSEQUENT FELONY CONVICTION, for which such conviction said defendant should be punished and sentenced in accordance with the Habitual Offender Law, LSA-R.S. 15:529.1, for the following reasons.
J¿L
When the defendant was so duly convicted of the subsequent felony conviction, the defendant had been previously convicted of the following felony offenses or felony-grade offenses, hereinafter referred to as THE PRIOR FELONY CONVICTIONS:
A.In the Fifteenth Judicial District Court Parish if [sic] Lafayette, Criminal Docket 56990, the felony offense of [sic] felony-grade violation of Armed Robbery on the 18th day of July 1989 for which the defendant was sentenced to serve 8 years at Hard labor.
B. In the Fifteenth Judicial District Court Parish of Lafayette, Criminal Docket 66817, the felony offense or felony-grade violation of First Degree Robbery on the 26th day of July 1995 for which the defendant was sentenced to serve 9 years at Hard Labor.
C. In the Fifteenth Judicial District Court Parish of Lafayette, Criminal Docket 86505, the felony offense or felony-grade violation of First Degree Robbery on the 4th day of March 2002 for which the defendant was sentenced to serve 6 years at Hard Labor.

The second bill of information, which is a single page document, lists the same predicate felony convictions, describes the convictions and sentences leading to the filing of the bill of information, and requests that the sentences be vacated so that the defendant could be sentenced pursuant to La. R.S. 15:529.1.

At an August 8, 2008 hearing, the defendant entered a plea of not guilty to the habitual offender charge, but only as it related to the offense of possession of a firearm by a convicted felon. Trial on this habitual charge occurred on January 20, 2010, and the trial court found the defendant to be a third felony habitual offender. Thereafter, the trial court vacated the sentence imposed on the possession of a firearm conviction and sentenced the defendant to serve life imprisonment without the benefit of probation, parole, or suspension of sentence.

|sIn his appeal, the defendant raises six assignments of error:

1) The imposition of a sentence under the habitual offender laws upon Appellant violated his right to fair notice, in violation of the Fourteenth Amendment to the United States Constitution.
2) The trial court erred in permitting the State to use the same predicate offenses in the Habitual Offender Bill of Information which were used to prove the underlying charge of possession of firearm by a convicted felon.
(3) The delay between the original sentencing proceedings and the ultimate resentencing under the habitual offender laws was unreasonable.
4) The trial court erred in failing to rule on the Response/Projections/Motion to Quash and denial of Habitual Offender Bill of Information was filed on September 8, 2008.
5) The trial court failed to rule upon the constitutionality of La.R.S. 15:529.1 with regard to the issues raised by counsel in the Response/Projections/Motion to Quash and denial of Habitual Offender Bill of Information filed on September 8, 2008 as well as those issues raised in the pro se Motion to Quash and Suppress Multiple Bill of Information and the pro se Motion to Quash.
6) The trial court imposed a sentence which was nothing more than a needless imposition of pain and suffering and thus a violation of Article 1, § 20 of the Louisiana Constitution and the Eighth Amendment of the United States Constitution.

OPINION

The trial court based its adjudication of the defendant as a third felony habitual offender on the factual conclusion that the state had established that the defendant was the same individual who had been convicted of the predicate offenses of armed robbery as set forth in Docket Number 56990, and first degree robbery as set forth in Docket Number 66817, and that he was the same individual who had been convicted of possession of a firearm by a convicted felon in November of 2007. With regard to the life sentence imposed, the trial court stated:

|4[The three convictions] places Mr. Anderson into Title 15, Section 529.1, subsection A(2)(b)(ii), which provides as follows: “If the third felony and the two prior felonies are felonies defined as a crime of violence under Revised Statute 14, Section 2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under 18 at the time of the commission of the offense, or as a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for 10 years or more, or any other crimes punishable by imprisonment for 12 years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life without benefit of parole, probation or suspension of sentence.”

Armed robbery and first degree robbery are crimes of violence as defined in La. R.S. 14:2(B)(21) and (22). Additionally, an individual convicted of possession of a firearm by a convicted felon may be sentenced to up to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. La.R.S. 14:95.1(B).

Assignment of Error Number One

In his first assignment, the defendant argues he did not have fair notice that his sentence for possession of a firearm by a convicted felon, La.R.S. 14:95.1, was subject to enhancement under the habitual offender statute, La.R.S. 15:529.1. In State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, cert. denied, — U.S. —, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008), the supreme court overruled earlier jurisprudence and held that La.R.S. 14:95.1 is subject to habitual offender enhancement. Further, the supreme court made its ruling applicable to all defendants whose cases were still pending appellate review.

It would appear that the defendant’s primary argument in this assignment of error is that the Baker opinion reaches the wrong conclusion and should not be followed. Such an argument must be made to the supreme court as its current position on this issue is binding on this court. We find no merit in this assignment of error.

| ⅛Assignment of Error Number Two

Next, the defendant argues that the state improperly used the same predicate offenses to establish he was an habitual offender that it used to establish that he was a convicted felon in possession of a firearm. In support of this argument, the defendant points to the Baker decision wherein the supreme court stated that “a sentence imposed under La.R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information.” Id. at 958. Thus, the merit or lack of merit of this assignment of error depends on the evidence used to obtain the conviction under La.R.S. 14:95.1. “Habitual offender proceedings do not charge a separate crime but are a part of the original proceeding leading to conviction.” State v. Means, 09-1716, p. 2 (La.4/9/10), 82 So.3d 805, 806.

In examining the record before us, including the proceedings related to the defendant’s conviction of the offense of possession of a firearm by a convicted felon, we find that the only predicate offense used to support the defendant’s conviction on that charge was his 2002 conviction for first degree robbery under Docket Number 86,505.

The defendant also argues in brief that the state should be prohibited “from picking and choosing which conviction it wants to arbitrarily assert was sufficient to prove the underlying crime.” However, as this court has explained, “[t]he State decides how to make out its case, and many factors may go into such decisions.” State v. Green, 94-986, p. 7 (La.App. 3 Cir. 3/1/95), 651 So.2d 435, 439 (footnote omitted). The supreme court has observed: “The district attorney constitutionally has Rcharge of every criminal prosecution by the state in his district. La. Const., Art. 5, § 26. He may decide whom, when, and how to prosecute. La.C.Cr.P. art. 61.” State v. Coleman, 465 So.2d 709, 711 (La.1985). The supreme court has also noted “that the district attorney indeed has the discretionary power to bring habitual offender bills of information just as he has the initial unlimited power to prosecute ‘whom, when, and how’ he chooses.” State v. Dorthey, 623 So.2d 1276, 1279 (La.1993).

We find no merit in this assignment of error.

Assignment of Error Number Three

While acknowledging that the supreme court in State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45, establishes that delay claims must be analyzed on a case-by-case basis, the defendant argues in this assignment of error that there was an unreasonable delay between the original sentencing and his resentencing as an habitual offender. We find no merit in this assignment of error.

The defendant was originally sentenced on the underlying charges on March 5, 2008, and sentenced on the habitual offender charge on January 20, 2010. Standing alone, an almost two year delay might seem unreasonable. However, in making this argument, the defendant ig-ñores the fact that he filed his appeal of his convictions on May 19, 2008, and when the habitual offender bills of information were filed on July 18, 2008, his appeal was still pending. In fact, this court did not reject his appeal until February 4, 2009, and the supreme court did not deny his writ application until November 20, 2009. Thus, his habitual offender trial occurred two months after his convictions became final. Additionally, on February 17, 2009, and May 18, 2009, the defendant sought and received continuances of the habitual 17offender trial partially on the basis that hearing the matter before resolution of the issues on appeal would be premature.

In Muhammad, the supreme court stated:

As a general matter, the Supreme Court has set forth four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated. Those factors are the length of the delay, the reasons for the delay, the accused’s assertion of his right to speedy trial, and the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 581-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). This court adopted the Barker factors in State v. Reaves, 376 So.2d 136 (La.1979). While these factors are neither definitive nor dispositive in the context of a habitual offender proceeding, they are instructive.

Id. at 55.

Our analysis of these factors reveal that the defendant’s speedy trial rights have not been violated.

Assignment of Error Number Four

In this assignment of error, the defendant argues the trial court erred in failing to rule on various pretrial motions he had filed on September 8, 2008. However, the defendant proceeded to trial without objecting to the trial court’s failure to rule on his motions. His failure to object rendered these motions moot. State v. Tassin, 08-752 (La.App. 3 Cir. 11/5/08), 998 So.2d 278, writ denied, 08-2909 (La.9/18/09), 17 So.3d 385.

Assignment of Error Number Five

The defendant next complains that the trial court failed to properly rule on his argument concerning the constitutionality of La.R.S. 15:529.1. In making this argument, the defendant acknowledges that the trial court did rule that the statute met | ^constitutional muster, but that it failed to do so by addressing the grounds he raised in his motion contesting the constitutionality.

We agree that in ruling the statute constitutional, the trial court did not address each specific ground raised by the defendant in his motion addressing this issue. However, the defendant failed to object to the failure on the part of the trial court to do so. That being the case, we find that the defendant has not preserved this issue for review. La.Code Crim.P. art. 841; State v. Smith, 05-375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, writ denied, 07-811 (La.1/11/08), 972 So.2d 1159; State v. Gustavis, 00-1855 (La.App. 4 Cir. 5/30/01), 788 So.2d 1242, writ denied, 01-1828 (La.5/10/02), 815 So.2d 833.

Assignment of Error Number Six

In his final assignment of error, the defendant argues that the sentence imposed is excessive. We disagree.

Louisiana Revised Statutes 15:529.1(A)(b)(ii) provides only one penalty for one adjudicated a third felony offender under the circumstances of this case — that person “shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.” (Emphasis added.) However, in State v. Lindsey, 99-3256, 99-3302, pp. 4-5 (La.10/17/00), 770 So.2d 339, 342-43 (second, third, and fourth alterations in original), the supreme court explained that even sentences mandated by statute may be excessive in a given case:

The Legislature enacted the Habitual Offender Law pursuant to its sole authority under Article 3, § I of the Louisiana Constitution to define conduct as criminal and to provide penalties for such conduct. |9 State v. Johnson, [97-1906 (La.3/4/98), 709 So.2d 672,] 675; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Taylor, 479 So.2d 339, 341 (La.1985). This Court has repeatedly held that the statute is constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed to be constitutional, and should be accorded great deference by the judiciary. State v. Johnson, supra; State v. Dorthey, supra. However, courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution even though it falls within the statutory limits provided by the Legislature. State v. Johnson, supra at 676; State v. Sepulvado, 367 So.2d 762, 767 (La.1979).
In State v. Dorthey, we held that this power extends to the minimum sentences mandated by the Habitual Offender Law and that the trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment” or is nothing more than “the purposeful imposition of pain and suffering” and “is grossly out of proportion to the severity of the crime.” State v. Dorthey, supra at 1280-1281.
Thereafter, in a series of writ grants, we acted to curtail the district court’s use of Dorthey in cases in which it appeared that the courts were simply substituting their judgment of what constituted an appropriate penalty for that of the Legislature. See, e.g., State v. Handy, 96-2505 (La.1/5/97), 686 So.2d 36; State v. Bastian, 96-2453 (La.12/13/96), 683 So.2d 1220; State v. Randleston, 96-1646 (La.10/4/96), 681 So.2d 936; State v. Wilson, 96-1600 (La.10/4/96), 680 So.2d 1169; State v. Johnson, 96-1263 (La.6/28/96), 676 So.2d 552; State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669; State v. Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082; State v. Lombard, 95-2107 (La.l1/27/95), 662 So.2d 1039.
This effort culminated in Johnson, where we set out guidelines for when and under what circumstances courts should exercise their discretion under Dorthey to declare excessive a minimum sentence mandated by the Habitual Offender Law. We held that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut [the] presumption of constitutionality” and emphasized that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. Johnson, supra at 676, 677. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
| m[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
Id. (Citing State v. Young, 94-1686 (La.App. 74 Cir. 10/26/95), 663 So.2d 525, 529 (Plotkin, J., concurring)).
In making this determination, we held that “while a' defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.” Id. This is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses. Id.
In addition, we held that the trial judge must keep in mind the goals of the statute, which are to deter and punish recidivism, and, we instructed that the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. Id. at 677.

In sentencing the defendant to the mandated minimum sentence, the trial court recognized that “[a] life sentence may constitute cruel and unusual punishment under that particular set of facts,” but then recited the facts it considered in concluding that the defendant’s case did not warrant a departure from the mandated minimum.

But the facts that we have are different. Mr. Anderson has a conviction of armed robbery in 1989, of first degree robbery in 1995 and, of course, there is evidence in 86505 that he was convicted of a first degree robbery. That was used as the predicate for the felon in possession charge.
As applied to Mr. Anderson I find that the statute is not unconstitutional. And imposing a life sentence as I’m required to do in Mr. Anderson’s case with his record does not constitute cruel and unusual punishment.
The State has proven a conviction of armed robbery in number 56990. It has proven a conviction of first degree robbery in number h ,66817. And it has proved a conviction of felon in possession of a firearm in number — felon in possession of a firearm in number 110556, the trial over which I presided.
That places Mr. Anderson into Title 15, Section 529.1, subsection A(2)(b)(ii), which provides as follows: “If the third felony and the two prior felonies are felonies defined as a crime of violence under Revised Statute 14, Section 2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under 18 at the time of the commission of the offense, or as a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for 10 years or more, or any other crimes punishable by imprisonment for 12 years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life without benefit of parole, probation or suspension of sentence.”
The State has proven that Mr. Anderson was convicted of armed robbery in '89, first degree robbery in '95, and felon in possession in the most recent conviction over which I presided, and has also proved that the defendant in each of those cases is, indeed, the same Steven Mark Anderson present in the courtroom today.
So, Mr. Anderson, the legislature has determined that there is only one sentence that you’re eligible for and, therefore, I vacate the sentence which I imposed previously in number 110556. That sentence is vacated. And now under the Habitual Offender Law I sentence you to serve a term of imprisonment for the remainder of your natural life.

As did the trial court, we find nothing in the record to warrant a finding that the defendant’s case is so exceptional that it warrants a downward departure from the statutory minimum sentence. We find that this assignment of error lacks merit.

Errors Patent

Pursuant to the mandate of La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. While we find no such errors, we do find that the minutes of the habitual offender sentencing require correction. The minutes at issue state that the trial court vacated the defendant’s sentences for theft of a firearm, possession of a firearm by a convicted felon, and possession of drug paraphernalia before sentencing the defendant to life imprisonment without the benefit of parole, | ^probation, or suspension of sentence as a third offender. In fact, the trial court only vacated the original sentence imposed for possession of a firearm by a convicted felon. The other two sentences were not disturbed. That being the case, the trial court minutes should be corrected.

DISPOSITION

We affirm the defendant’s adjudication and sentence in all respects. We remand the matter to the trial court with instructions to amend the minutes of the habitual offender sentencing proceedings to reflect that the trial court vacated only the defendant’s sentence for possession of a firearm by a convicted felon and not also the sentences for theft of a firearm and possession of drug paraphernalia.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . The record contains no reference to the theft charge at this hearing.

      . On September 8, 2008, the defendant filed a pleading entitled "RESPONSE/PROJECTIONS/MOTION TO QUASH AND DENIAL OF HABITUAL OFFENDER BILL OF INFORMATION.”

      . In addition, the record does not demonstrate that the defendant provided notice of the constitutional challenge to the attorney general’s office, as required by La.R.S. 13:4448. Thus, any ruling on constitutionality would not have been properly before this court, and thus would have required remand. State v. Expunged Record Number 249,044, 02-589 (La.App. 3 Cir. 12/11/02), 833 So.2d 553.


text:
    STATE of Louisiana v. Brian Keith THOMAS.
    No. 10-269.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Carey J. Ellis, III, La. Appellate Project, Rayville, LA, for Defendant/Appellant, Brian Keith Thomas.
    Trent Brignac, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, 13th Judicial District Court, Ville Platte, LA, for Plaintiff/Appellee, State of Louisiana.
    Brian Keith Thomas, Louisiana State Penitentiary, Angola, LA, for Defendant/Appellant, Brian Keith Thomas.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 After a bench trial, Defendant, Brian Keith Thomas, was found guilty of attempted second degree murder. He was sentenced to imprisonment for forty years, at hard labor, without benefit of parole, probation, or suspension of sentence. He has perfected this appeal wherein he alleges insufficient evidence to sustain a verdict of attempted second degree murder and that the sentence is excessive under the circumstances of the case. For the following reasons, we affirm.

FACTS

In the early morning of October 21, 2007, Defendant and one of his co-defendants, Carvanski Fontenot, exchanged gunfire with persons outside the End Zone Bar in Ville Platte, Louisiana. The victim, Shannon Fontenot, who was also outside the bar, was shot. She survived the shotgun injury.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the State failed to prove beyond a reasonable doubt that he possessed or shot a gun on the morning the victim was injured. Defendant argues that it was his co-defendant who shot the victim by accident.

In State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434, the defendant argued there was insufficient evidence to sustain his conviction for attempted second degree murder. However, the supreme court affirmed the conviction. Discussing the standard to be used to determine whether the evidence was sufficient, the supreme court stated:

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier |2of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).
To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. La. R.S. 14:27; 14:30.1. Although the statute for the completed crime of second degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Huizar, 414 So.2d 741 (La.1982). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Butler, 322 So.2d 189 (La.1975); State v. Martin, 92-0811 (La.App. 5 Cir. 5/31/94), 638 So.2d 411.

Id. at 437.

Furthermore, as stated by the Louisiana Supreme Court in State v. Hampton, 98-331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999):

A person may be convicted of an offense even if he has not personally fired the fatal shot. The law of principals states that all persons involved in the commission of a crime, whether present or absent, are equally culpable. See La. Rev. Stat. 14:24. However, the Defendant’s mere presence at the scene is not enough to “concern” an individual in the crime. State v. Schwander, 345 So.2d 1173, 1174-1175 (La.1977). A principal may be connected only to those crimes for which he has the requisite mental state. State v. Holmes, 388 So.2d 722 (La.1980); State v. McAllister, 366 So.2d 1340 (La.1978).

“Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1(A).

“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; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La.R.S. 14:27(A).

| aFinally, a principal is defined as “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.R.S. 14:24.

In brief and at trial, Defendant argued that there was continuous acrimony between the co-defendant, Carvanski Fonte-not, and another person who was at the bar, Mario Wilson; that it was Fontenot who was firing a gun at Wilson and acci-dently shot the victim; and that Defendant was simply attempting to keep the peace.

Carvanski Fontenot was the first to testify for the State. He explained that a week prior to the shooting at the End Zone Bar, he and Defendant had a run-in with a man named Raven Gallow. During this particular confrontation, a gold chain was taken from Gallow and Fontenot fired a gun at Callow’s car. Fontenot was arrested and charged with offenses involving this event. Defendant had possession of the gold chain. Fontenot testified that the argument over the gold chain continued until the night of the current shooting when Mario Wilson got involved. At the bar, Gallow began cursing at Fontenot and Wilson stepped in and told Fontenot that they (Fontenot and Defendant) would have to go through him to get to Gallow. Eventually, they all went outside.

Fontenot stated that Defendant had a 9 millimeter gun. Fontenot had a .357 revolver. Fontenot had initially given his gun to Kevin Wilson, who left the gun in a car in a tire store parking lot across the street from the bar. After the two groups of people left the bar and Fontenot and his group crossed the street, Kevin Wilson gave Fontenot his gun. Mario Wilson and Fontenot continued arguing and at some point, |4shots were fired from somewhere else. Fontenot testified that both he and Defendant began shooting at Mario Wilson, who was attempting to flee. He said that he heard Defendant fire three or four times, while he fired three times. He saw the victim fall, but stated he did not know from which gun she was shot. He and Defendant then ran behind the tire store where they gave their guns to Defendant’s sister and together with Defendant’s girlfriend, they all left and drove to his aunt’s house. Shortly thereafter, the police arrived and arrested them.

Kevin Wilson was at the bar the night of the shooting. He was also charged with attempted second degree murder as a result of the victim’s gunshot injury. He testified that although he knew Fontenot prior to the shooting, he did not know Defendant. He stated he was at the bar with another friend. However, he testified that when Fontenot had asked him to keep his gun, he put the gun in his sister’s car, which was parked across the street from the bar. When the argument from the bar came out to the street, he gave the gun to Fontenot upon his request. He said that Defendant and Mario Wilson were arguing over the gold chain. When a gunshot from somewhere else rang out, Defendant and Fontenot began shooting at Mario Wilson. Defendant shot three or four times and Fontenot shot two or three times.

Patricia Eddings, a trace analyst with the Tarrant County Medical Examiner’s Office in Fort Worth, Texas, testified that she found gunshot residue on both Defendant’s and Fontenot’s hands. Craig Nickolas, a detective with the Ville Platte Police Department, applied gunshot residue swab kits to both men shortly after they were arrested the morning of the shooting. Detective Nickolas further testified that he recovered three 9 millimeter casings from the tire store parking lot and recovered the core bullet removed from the victim.

| r,Christopher Henderson, a forensic chemist with Acadiana Criminalistic Laboratory analyzed the casings and the core bullet and testified that the casings were fired from the same gun. He stated that the core bullet was consistent with a .38 caliber which included a 9 millimeter, .357, or a .38 special.

Drashandra Thomas, Defendant’s first cousin, testified she was at the End Zone Bar when the shooting occurred. She was aware of the animosity between Fontenot and Wilson inside the bar. She stated she was with the victim outside and saw Defendant, Fontenot, Kevin Wilson, and one other person with guns. She said that she saw Defendant’s sister give him the gun.

In brief, Defendant argues that Carvan-ski Fontenot’s and Kevin Wilson’s testimonies were self-serving as they, too, were charged with the offense of attempted second degree murder, but had not yet been tried. He argues that there was never a gun recovered connected to him and that he was actually attempting to defuse the matter at the time of the shoot-out. Several witnesses testified that he did not have a gun. Kimberly Jack, a jailer with the local marshall’s office, was at the bar the morning of the shoot-out. She stated she knew both Defendant and Fontenot and said she did not see anyone with a gun inside the bar. Avery Wilson, the father of the victim’s children, stated he saw only Carvanski Fontenot shooting. He initially testified he did not see Defendant in the tire store parking lot, but later stated that he saw Defendant and Fontenot walk together across the street to parking lot. Raven Gallow testified that Defendant gave the gold chain back to him prior to the shoot-out. He stated that although he heard the shots, he did not see who was shooting guns.

| nSavannah Wilson, Mario Wilson’s cousin and Avery Wilson’s brother, testified that the problem at the bar was between Carvanski Fontenot and Mario Wilson, and that they had no problem with Defendant. When asked if he saw Defendant with a gun, he replied, “No sir. I ain’t seen nobody had a gun.” Gene Wilson, Mario Wilson’s brother, testified he was at the bar with his girlfriend, Drashandra Thomas. He testified that he saw Fontenot with a gun when the shooting first started, but he did not see Defendant with a gun. He said he grabbed his brother and ran after the first shots rang out.

Finally, Defendant argues Drashandra Thomas’s trial testimony was “fraught with inconsistencies and contradictions,” and in conflict with her statement given to the police. Further, she admitted to the police she was high on eestacy at the time of the shooting and at the time she gave her statement. However, Defendant does not point to where her trial testimony was in conflict with her statement to the police. A review of the statement shows that her trial testimony was consistent with her statement in that she named Defendant, Carvanski Fontenot, Kevin Wilson, and one other person as participating in the shoot-out.

Following his discussion of the facts, Defendant concludes in brief, that the State failed to show that he possessed the specific intent to kill Shannon Fonte-not; therefore, there was insufficient evidence to support the verdict of attempted second degree murder. However, the State was not required to prove that Defendant had the specific intent to kill the victim. In this case, the State had only to prove that there was specific intent to kill the intended victim, which according to Fontenot’s testimony was Mario Wilson. The acrimony between the two men was well-established by both the State’s witnesses and Defendant’s witnesses.

Specific intent may be established by the circumstances surrounding an accused’s actions. State v. Anderson, 98-492 (La.App. 8 Cir. 10/28/98), 721 So.2d 1006, writ denied, 98-2976 (La.3/19/99), 739 So.2d 781. It is well-settled that the act of pointing a gun at a person and firing the gun is an indication of the intent to kill that person. State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, writ denied, 03-2042 (La.1/16/04), 864 So.2d 626; State v. Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La.4/25/03), 842 So.2d 391; State v. Clark, 93-1470 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.2/9/95), 649 So.2d 418. Testimony established that each shooter, Defendant and Fontenot, fired their guns three to four times at the intended victim.

Furthermore, its irrelevant that the two men were aiming at Mario Wilson and not the actual victim, the doctrine of transferred intent applies in this case. The third circuit explained transferred intent in State v. Wright, 99-1137, p. 11 (La.App. 3 Cir. 3/1/00), 758 So.2d 301, 307, unit denied, 00-1614 (La.3/9/01), 786 So.2d 118, as follows:

The law of transferred intent was explained by our brethren of the first circuit in State v. Druilhet, 97-1717 (La.App. 1 Cir. 6/29/98); 716 So.2d 422, a case similar to the case sub judice. In Druilhet, the defendant was charged with aggravated battery and, after a trial by jury, was found guilty of the responsive offense of second degree battery. In his claim that the evidence was insufficient to support his conviction, the defendant argued that he lacked the intent necessary for a conviction of second degree battery because he meant to hit his brother and did not mean to hit or cause serious injury to the victim. The court noted that under the theory of transferred intent, if the defendant possessed the necessary intent to inflict serious bodily injury when trying to hit his brother, but missed and accidentally hit someone else instead, such intent is transferred to the actual victim. See also State v. Johnson, 29,629 (La.App. 2 Cir. 8/20/97); 698 So.2d 1051; State v. Jordan, 97-1756 (La.App. 4 Cir. 9/16/98); 719 So.2d 556, writ denied, 98-2595 (La.1/15/99); 736 So.2d 207. Thus, if the Defendant had the specific intent to stab Searile with the scissors, and inadvertently stabbed [ sPickney, then the Defendant possessed the necessary intent for the conviction of the second degree battery of Pickney.

See also, State v. Henderson, 99-1945 (La.App. 1 Cir. 6/23/00), 762 So.2d 747, writ denied, 00-2223 (La.6/15/01), 793 So.2d 1235, and State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Finally, it is of no consequence which man’s bullet injured the victim. When the two men began shooting together, they were acting in concert and each became a principal to whatever damage the other’s gun inflicted, as each exhibited the requisite mental state to inflict death on the intended victim. Three eyewitness testified that Defendant and Fontenot discharged their guns, aiming for Mario Wilson. The victim, who was standing in the vicinity of the intended victim, was struck by a bullet. The witnesses’ testimonies were consistent with each other and with the physical evidence. Both men had gunshot residue on their hands. Considered in a light most favorable to the prosecution, the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that Defendant was guilty of the crime charged.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that under the circumstances of the case, the sentence of forty years imprisonment is excessive. Furthermore, he argues that because his co-defendant, Carvanski Fontenot, received only a ten year sentence pursuant to a plea agreement, his sentence by comparison constitutes cruel and unusual punishment.

Defendant was convicted of attempted second degree murder, a violation of La. R.S. 14:30.1 and 14:27, which provides for a range of punishment of not less than ten years and not more than fifty years imprisonment, without the benefit of parole, probation, or suspension of sentence. Defendant received forty years.

|flTo determine whether a sentence is constitutionally excessive, this court has stated:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Moreover, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, this court held that in order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, the following factors may be considered:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of' the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

|inAt the hearing, the trial court stated for the record:

The Court is called upon to sentence the defendant, Mr. Brian Keith Thomas, who was convicted by this Court of the crime of Attempted Second Degree Murder. In arriving at the sentence, the Court has carefully considered the pre-sentence investigation report, the victim’s impact statement, and all of the sentencing guidelines of Louisiana Code of Criminal Procedure Article 894.1. Specifically, the Court considered the fact that the defendant has an extensive criminal record, including at least four other felony convictions which include at least two for violent crimes. In the present case, Mr. Thomas fired his weapon at another individual with total disregard for the welfare of others, striking a pregnant, innocent bystander, causing serious injuries. It is obvious that Mr. Thomas cannot properly function in society and is in need of additional correctional treatment and a custodial environment provided by his commitment to a penal institution. A modest sentence would greatly deprecate the seriousness of defendant’s crimes.

Following sentencing, Defendant asked for reconsideration of the sentence, pointing out to the trial court that Carvanski Fontenot received only ten years for his involvement in the shoot-out. While Fon-tenot was originally charged with attempted second degree murder, under the plea agreement he pled guilty to aggravated second degree battery, which provides for a maximum sentence of fifteen years imprisonment. La.R.S. 14:34.7(B). The trial court denied the motion in open court without giving reasons. In brief, Defendant argues that “[u]nder these circumstances, and considering the disparity in the sentences of Defendant and his co-defendant, forty years does seem to shock one’s sense of justice.”

In State v. Dixon, 03-160, p. 11 (La.App. 3 Cir. 6/4/03), 852 So.2d 471, 478, this court held:

The sentence imposed on the co-defendant has no bearing on the sentence imposed upon the Defendant. “[I]t is well settled that a sentence must be individualized as to each defendant....” “State v. Williams, 677 So.2d 692 (La.App. 3 Cir.1996); State v. Lemelle, 502 So.2d 130 (La.App. 3 Cir.1987).” State v. Lofton, 97-00383 (La.App. 3 Cir. 10/8/97); 701 So.2d 712, 715, writ denied, 98-0389 (La.6/5/98); 720 So.2d 679. The disparity in a sentence imposed upon co-defendants [n“is only a factor to be considered along with all other appropriate considerations when there is no reasonable basis in the record for the disparity. State v. Sims, 410 So.2d 1082 (La.1982).” State v. Quimby, 419 So.2d 951, 962 (La.1982).

Considering all of the relevant factors, we find the trial court did not abuse its vast discretion when it sentenced Defendant to forty years imprisonment. The trial court noted for the record that it had taken into consideration the pre-sentence investigation report, which summarized Defendant’s background, work history, and family life. The trial court noted that Defendant had an extensive criminal history, including four felonies, two of which were crimes of violence. A review of the record indicates that the trial court took adequate cognizant of the sentencing considerations set out in La.Code Crim.P. art. 894.1. Moreover, Defendant’s act of firing into a crowd of people endangered multiple lives, as evidenced by the accidental shooting of a pregnant woman who happened to be in the crowd.

Furthermore, a forty-year sentence for attempted second degree murder is not an uncommon sentence under similar circumstances. In State v. McCoy, 34,835 (La.App. 2 Cir. 6/20/01), 792 So.2d 806, writ denied, 01-2186 (La.6/21/02), 818 So.2d 790, the second circuit affirmed a forty-year sentence imposed on the defendant who was convicted of attempted second degree murder despite the fact that he did not have a criminal history. In that case, the defendant had stalked a former girlfriend and laid in wait for her before shooting her four times.

In State v. Ethridge, 96-1050 (La.App. 3 Cir. 2/5/97), 688 So.2d 1274, this court affirmed a sentence of forty-five years for attempted second degree murder even though Ethridge had no prior criminal record. The defendant fired six shots into the victim’s residence through a bedroom window, severely wounding the victim. In State v. Owens, 606 So.2d 876 (La.App. 2 Cir.1992), Owens alleged his thirty-year | ^sentence for attempted second degree murder was excessive because he was only twenty-five and had no prior criminal history. Owens had fired several shots at the victim in a crowded barroom. The second circuit affirmed the sentence.

Under the circumstances the forty year sentence is not such that would shock this court’s sense of justice. Accordingly, there is no merit to Defendant’s assertion that his sentence for forty years imprisonment was excessive under the circumstances of the case.

DECREE

Defendant’s conviction and sentence are affirmed.


author: PETERS, J. GREMILLION, Judge,

text:
    STATE of Louisiana v. Kevin Paul JACOBS.
    No. 10-292.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Dan B. McKay, Jr., Assistant District Attorney, Twelfth Judicial District Court, Marksville, LA, for Appellee, State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Kevin Paul Jacobs.
    Kevin Paul Jacobs, Bossier Sheriff Correctional Facility, Plain Dealing, LA, Defendant/Appellant, In Proper Person.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

|rThe State of Louisiana charged the defendant, Kevin Paul Jacobs, with simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. Following a bench trial, the trial court found the defendant guilty as charged. Thereafter, the trial court sentenced the defendant to serve ten years at hard labor without the benefit of probation, parole, or suspension of sentence, with this sentence to run concurrently with any other sentences previously imposed. After the trial court rejected the defendant’s motion to reconsider his sentence, the defendant appealed his conviction and sentence. On appeal, the defendant’s counsel raises two assignments of error, and the defendant raises three pro se assignments of error. For the following reasons, we affirm the conviction in all respects, amend the sentence imposed, and remand the matter to the trial court with instructions.

DISCUSSION OF THE RECORD

The criminal charge against the defendant arises from a mid-January of 2006 burglary of the Marksville, Louisiana home of William J. Bennett. Judge Bennett had left his home for a weekend trip and, when he returned, he discovered a broken window in the structure. Finding no reason for the broken window, Judge Bennett looked through the home to see if anything was missing. Initially, he found nothing out of place, but approximately two weeks later he received a letter from his credit card company questioning some activity involving the card. This inquiry caused him to perform a further search for missing items, but this time with the emphasis on his wallet and the contents thereof. When he could not find his wallet, he contacted the Marksville City Police and reported the apparent theft.

The ensuing investigation resulted in the arrest of Brandon Frelich, Camille 12Swafford, and the defendant. At trial, Frelich became the principal witness against the defendant.

Frelich testified that he met the defendant some time around Christmas in 2005 while buying drugs from the defendant. With regard to the offense itself, Frelich testified that on or about January 14, 2006, at 3:00 or 4:00 in the morning, he and the defendant went to Judge Bennett’s home with the intention of committing a burglary; the defendant kicked in the window to Judge Bennett’s home; the two men entered the home without permission; and the defendant took Judge Bennett’s wallet. Frelich testified that Ms. Swafford was on the scene, acting as a “lookout” for the two men while they were in the house.

Frelich testified that he next saw the wallet when he used a credit card from the wallet to purchase gasoline at a local service station. According to Frelich, after successfully purchasing gasoline with the victim’s credit card, he, the defendant, and Ms. Swafford entered the local Walmart store and unsuccessfully attempted to purchase merchandise with the credit card. After leaving Walmart, according to Fre-lich, they threw the wallet and its contents into a ditch along a local road.

In his testimony, the defendant denied robbing Judge Bennett’s home. The defendant asserted that he had been in North Carolina from December 24, 2005, until January 9, 2006. He also testified that from January 13, 2006, until 11:00 a.m. on January 14, 2006, he and Ms. Swafford were at a casino in Marksville. The defendant asserted that he first met Frelich on January 14, 2006, when Frelich approached him while he was sitting with Mrs. Swafford in her car and asked for a ride to Walmart in exchange for buying them gasoline. According to the defendant, somewhere along the way to Walmart he stopped the car at Frelich’s instruction, and Frelich retrieved |sa wallet from a roadside ditch. He acknowledged that Frelich offered to purchase a number of items for him and Ms. Swafford, but claimed that he and Ms. Swafford left the store before Frelich attempted to check out with the merchandise. However, when Frelich joined the couple in the parking lot, according to the defendant, he informed them that he could not complete the transaction because the credit card had been declined. In the defendant’s words, this was not a problem to him because Frelich had already purchased the promised tank of gasoline. The defendant asserted that he never saw Frelich again after that day.

In her testimony, Ms. Swafford supported some aspects of the defendant’s testimony and contradicted him in other aspects. For example, she supported the defendant’s testimony that he was in North Carolina when Frelich claims he first met the defendant but did not support the defendant’s assertion that the encounter with Frelich on the day the credit cards were used was his first time to meet Frelich.

Ms. Swafford denied acting as lookout at the burglary and asserted that her only involvement in the criminal activity occurred when Frelich and the defendant arrived in her automobile to pick her up to go to Walmart. She testified that the three stopped on the way to Walmart to retrieve Judge Bennett’s wallet from the side of the road. While she testified that she did not speak with the defendant concerning this unusual event, she also testified that it “seemed” that both the defendant and Frelich |4had planned to retrieve the wallet. She also testified that all three individuals knew that the credit card they were attempted to use was in the name of William Bennett. In fact, Ms. Swafford asserted that she asked the two men if the card belonged to Judge William Bennett and was told by the defendant that it belonged to Frelich’s uncle. Additionally, Ms. Swafford seriously questioned the defendant’s contention that he was a law-abiding citizen. According to Ms. Swaf-ford, the defendant’s source of income is questionable as he does not have a regular job. She assumed that the defendant was “hustling,” or selling something illicit.

The evidence before the trial court also established that Frelich was a cocaine addict and that he had been convicted of simple burglary approximately two years before his involvement in the burglary of Judge Bennett’s home. Furthermore, pri- or to the defendant’s trial, Frelich had pled guilty to simple burglary of Judge Bennett’s home and was serving a three-year hard labor sentence for that offense. According to the trial record, this conviction was his fourth felony offense. The record establishes that before the defendant’s trial, Ms. Swafford had pled guilty to identity theft, a violation of La.R.S. 14:67.16, for her involvement with the misuse of Judge Bennett’s credit card. Based on this plea, the trial court had sentenced her to serve three years on probation.

While both Frelich and Ms. Swafford entered their guilty pleas pursuant to plea agreements with the state, the defendant had gone to trial on the charge of identity theft and had been convicted of that charge by a jury. Thereafter, the trial court sentenced him to serve ten years at hard labor for that conviction, and he appealed that conviction and sentence. This court, in State v. Jacobs, 08-702 (La.App. 8 Cir. 2/4/09), 2 So.3d 1289, affirmed his conviction but vacated the sentence and remanded the matter to the trial court for resentencing.

The trial court found the defendant guilty as charged. It concluded that the defendant’s testimony was “suspect and questionable,” “very odd and suspicious,” and ultimately that it was not “believable.” By contrast, it found Frelich and Ms. Swafford’s testimony to be “largely consistent.”

OPINION

Eirors Patent Review

Louisiana Code of Criminal Procedure Article 920(2) requires that all appeals be examined for errors that are “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” In performing this examination of the record now before us, we find two such errors.

First, the trial court failed to advise the defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. That being the case, we must remand this matter to the trial court with instructions to properly inform the defendant of the provisions of that article by providing him with written notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Second, only the first year of the defendant’s sentence may be without benefit of probation, parole, or suspension of sentence. State v. Boowell, 406 So.2d 213 (La.1981), State v. Conley, 411 So.2d 448 (La.1982), and State v. Wilder, 499 So.2d 432 (La.App. 2 Cir.1986). We amend the defendant’s sentence to reflect that only the first year is without benefit of probation, parole, or suspension of sentence.

I,,Assignment of Error Number One and Pro Se Assignments of Error Numbers Two and Three

The defendant’s attorney asserts that “[tjhere is insufficient evidence to prove the guilt of defendant beyond a reasonable doubt for the offense of Simple Burglary of an Inhabited Dwelling.” The defendant claims that the state failed to prove that he participated in the burglary or that he took the wallet from the victim’s home. The defendant urges that Frelich was not a credible witness and the trial court erred in relying on his testimony to convict the defendant. The defendant contends that Frelich testified against the defendant as a result of a plea bargain that substantially benefitted Frelich; thus, Fre-lich had ample motivation for lying.

In his pro se brief the defendant also contends that there was insufficient evidence, specifically arguing that during the early morning hours of January 14, 2006, he was at a casino in Marksville; that Frelich was not a credible witness; that Frelich’s claim to have met the defendant during Christmas was impossible because the defendant was out of state from Christmas Eve of 2005 until January 9, 2006; and that a state’s witness had been tampered with by the district attorney.

The Louisiana Supreme Court has held that it is not the appellate court’s function to second-guess the factfinder’s determination concerning the credibility of witnesses:

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

17 State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (some citations omitted).

In the instant case, the trial court specifically found Frelich and Ms. Swafford to have been more truthful than the defendant. The evidence in the record shows that Frelich and Ms. Swafford had entered into plea bargains with the state prior to the defendant’s trial. The trial court was aware of that information when it made its credibility determination, and nothing in the record supports the defendant’s claim that a state’s witness had been tampered with. The trial court cited the inconsistencies in the defendant’s testimony as a basis for determining that the defendant’s testimony was untrustworthy.

Under La.R.S. 14:62.2, “simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling ... used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein[.]” Pursuant to La.R.S. 14:67(A):

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Because the evidence, when viewed in the light most favorable to the prosecution, shows that the defendant entered Judge Bennett’s home without permission and with the intent to commit a theft therein, there is sufficient evidence to support the defendant’s conviction for simple burglary of an inhabited dwelling.

There is no merit in these assignments of error. The defendant’s conviction is affirmed.

| JPro Se Assignment of Error Number One

In this pro se assignment of error, the defendant asserts that he received ineffective assistance of counsel because his attorney did not subpoena the correct security records and security surveillance from the casino in Marksville, which the defendant asserts would prove that he was in Marksville on January 14, 2006.

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Lane, 40,816 (La.App.2d Cir.04/12/06), 927 So.2d 659, 669, writ denied, 2006-1453 (La.12/15/06), 944 So.2d 1283. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, supra.

State v. Eiskina, 42,492, p. 2 (La.App. 2 Cir. 9/19/07), 965 So.2d 1010,1013.

Here there is not sufficient evidence in the record to resolve this claim of ineffective assistance of counsel; specifically there is nothing in the record to establish what records, if any, were subpoenaed, nor what the proper records would establish. Accordingly, we do not address this claim of ineffective assistance of counsel, leaving it for post-conviction relief.

Assignment of Error Number Two

In the second assignment of error filed by his attorney, the defendant asserts that “[t]he sentence imposed is excessive for this offender and this offense.” The defendant argues that his near-maximum sentence is excessive and claims that the sentencing court failed to give adequate weight to his lack of a prior criminal history-

An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless | ^imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “Maximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The fifth circuit in State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, set forth three factors to be considered by the reviewing court in determining whether the trial court abused its discretion in sentencing a defendant. Those factors are (1) the nature of the offense at issue, (2) the nature and background of the defendant, and (3) sentences imposed by the sentencing court and other courts for similar offenses.

We start this three-prong analysis by acknowledging that all criminal offenses are repugnant to society, but some more repugnant than others. Simple burglary of an inhabited dwelling is one of those offenses that the law considers more serious than others, as evidenced by the range of incarceration sentences available — imprisonment “at hard labor for not less than one year, without benefit of | mparole, probation or suspension of sentence, nor more than twelve years.” La. R.S. 14:62.2. Although commission of the offense does not necessarily involve physical injury or even physical danger to the victim, it constitutes an invasion of an individual’s home — a place where he or she should be able to feel totally safe from the evils of the world.

With regard to the nature and background of the defendant, the trial court provided extensive oral reasons for sentencing the defendant as it did. In discussing the aggravating circumstances it found present, the trial court noted that the defendant used the ill-gotten gains of the burglary to commit another felony violation — identity theft; that the defendant exhibited an angry attitude throughout the trial proceedings; that the defendant expressed no remorse for his actions; and that he suffered from a long-term marijuana addiction. In mitigation, the sentencing court noted the defendant’s lack of prior convictions and the fact that the house was empty when it was burglarized.

In considering the third factor of the Lisotta analysis, we do note that, while it is not the maximum sentence that could imposed, the ten-year hard labor sentence is clearly in the higher range. In comparing the sentences imposed by the trial court for similar activity, the defendant points to the favorable sentences imposed on his co-defendants after they agreed to testify against him. We reject this argument because the general rule is that “the fact that a co-defendant has received a more lenient sentence does not necessarily indicate that the penalty imposed on the defendant is excessive.” State v. Weary, 03-8067, p. 42 (La.4/24/06), 931 So.2d 297, 324.

In comparing the defendant’s sentence with sentences imposed for similar crimes, we note that there are a number of cases wherein the reviewing courts have fyupheld sentences in the upper limits for situations similar to that of the defendant. See State v. Sharpley, 414 So.2d 329 (La.1982); State v. Edouard, 512 So.2d 579 (La.App. 3 Cir.1987); State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076; State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586; State v. Alsup, 42,636 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152, writ denied, 07-2252 (La.4/25/08), 978 So.2d 363; State v. Durham, 43,558 (La.App. 2 Cir. 10/15/08), 996 So.2d 642; and State v. Baker, 08-898 (La.App. 3 Cir. 2/409), 3 So.3d 666.

We find that the ten-year sentence imposed by the trial court is not illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. Thus, we find no merit in this assignment of error.

DISPOSITION

We affirm the defendant’s conviction in all respects. We amend the defendant’s sentence to reflect that only the first year of the sentence is without benefit of probation, parole, or suspension of sentence, and affirm the sentence as amended. Finally, we remand the matter to the trial court with instructions to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings.

CONVICTION AFFIRMED, SENTENCE AFFIRMED AS AMENDED, AND REMANDED WITH INSTRUCTIONS.

GREMILLION, J., dissents in part and assigns written reasons.

GREMILLION, Judge,

dissents in part and assigns written reasons.

| ^though I agree with the majority’s opinion in all other respects, I disagree with the majority’s finding that Defendant’s sentence is not excessive. Defendant argues that the sentencing court failed to give adequate weight to his lack of a prior criminal history. Moreover, Defendant complains that Frelich, who had four prior convictions, received a much more lenient sentence of three years.

At the sentencing hearing the trial court listened to argument by counsel and a statement by Defendant. Thereafter, the trial court gave extensive oral reasons wherein it discussed “the aggravating and mitigating circumstances.” The trial court did so again at the hearing of Defendant’s motion for reconsideration of sentence.

The only prior offense discussed in the record is the identity theft conviction, which arose from the use of a credit card contained in Judge Bennett’s stolen wallet. Thus, the identity theft conviction arose from the same course of events as the instant conviction. The only aggravating factors the sentencing court mentioned were Defendant’s angry attitude throughout the trial proceedings and his marijuana use. The trial court specifically found that the victim’s status as a district court judge was irrelevant. In mitigation, the sentencing court noted Defendant’s general lawfulness and the fact that the house was empty when it was burglarized.

However, at the reconsideration hearing, the defense stated that, in comparison, Defendant’s sentence was excessive because of the favorable deals garnered by his co-defendants; Frelich received a three-year sentence in exchange for testifying Ragainst Defendant, and Swafford received three years of probation.

The defense also pointed out that Fre-lich had a prior criminal record of acts similar to the instant case, which would have motivated him to seek a plea agreement in order to avoid a multiple offender adjudication. In contrast, Defendant had no felony convictions, and overall, his criminal record was not excessive. The defense argued that Defendant was a “fairly model citizen.”

The statutory penalty range for committing simple burglary of an inhabited dwelling is imprisonment “at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.” La.R.S. 14:62.2. Thus, Defendant’s sentence is a high-range penalty.

After examining the jurisprudence, it is clear that, in simple burglary of inhabited dwelling cases, sentences of ten years or greater are usually accorded to defendants with extensive criminal histories or when the crime involved firearms. State v. Baker, 08-898 (La.App. 3 Cir. 2/4/09), 3 So.3d 666 (the defendant stole a shotgun and was a third felony offender); State v. Dunn, 30,346 (La.App. 2 Cir. 2/26/98), 708 So.2d 512 (the defendant, who was on probation at the time of the offense, had an extensive criminal record involving similar crimes, and when he was caught in the act, he wrestled a firearm away from the arresting officer while resisting arrest); State v. Surtain, 529 So.2d 1375 (La.App. 5 Cir. 1988) (the defendant had a prior felony conviction, as well as two misdemeanors; however, he was not prosecuted as a multiple offender); State v. Sharpley, 414 So.2d 329 (La.1982) (though it was the defendant’s first felony conviction, the defendant had an extensive criminal history and had stolen firearms during the burglary); State v. Edouard, 512 So.2d 579 (La.App. 3 Cir.1987) (the defendant had numerous misdemeanor convictions, and it was likely the defendant would commit additional crimes if not incarcerated).

|sIn contrast, appellate courts have affirmed sentences of nine years or less for defendants convicted of simple burglary of an inhabited dwelling without an extensive criminal history and without firearms being involved. In State v. Durham, 43,558 (La.App. 2 Cir. 10/15/08), 996 So.2d 642, the second circuit affirmed a nine-year sentence in a case where the defendant had burglarized a home while the victim was at work. The second circuit mentioned no aggravating or mitigating factors in its analysis:

In the instant case, when defendant’s crime and punishment are viewed in light of the harm done to society by property crimes involving the disregard for the sanctity of people’s homes, the nine-year sentence does not shock the sense of justice. This hard labor term is not grossly disproportionate to defendant’s offense nor is it a purposeless and needless infliction of pain and suffering.

Id. at 649.

In State v. Alsup, 42,636 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152, writ denied, 07-2252 (La.4/25/08), 978 So.2d 363, the second circuit affirmed an eight-year sentence for simple burglary of an inhabited dwelling where the defendant was a first felony offender with several misdemeanor convictions. The record showed that the defendant had also committed new offenses while on bond for the simple burglary charges.

In State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586, the first circuit affirmed a nine-year sentence for simple burglary of an inhabited dwelling; the defendant entered into a plea bargain wherein the State agreed not to charge him as a habitual offender though the defendant had been on parole for aggravated burglary at the time of the offense. Thus, defendants with more aggravating circumstances have received less onerous sentences.

The foregoing review of the sentences imposed for similar offenses and offenders indicates that, in the instant case, a sentence of ten years is constitutionally excessive. Accordingly, I would find the trial court abused its discretion in |4sentencing Defendant and I would remand for resen-tencing. Thus, I respectfully dissent.

      . The victim in this criminal offense is one of two district judges in the Twelfth Judicial District.

      . In general, Ms. Swafford’s testimony was rather rambling and difficult to follow.

      . She claims that the defendant called her to pick him up at the bus station upon his return in early January.

      . Mrs. Swafford asserted that she had seen the two men together on at least one occasion in the past.

      . Ms. Swafford testified that Frelich retrieved the wallet from the top of a utility box, and not simply from the side of the road.

      . The trial court record does not specify the underlying sentence that was suspended for imposition of the probationary sentence.

      . This court vacated the sentence because, at the time of the offense, La.R.S. 14:67.16(C)(2) provided for a maximum incarceration sentence of five years with or without hard labor.