author: PAINTER, Judge.

text:
    STATE of Louisiana v. Wayne K. JONES, Jr.
    No. 11-399.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Peggy J. Sullivan, Monroe, LA, for Defendant/Appellant, Wayne K. Jones, Jr.
    John F. Derosier, District Attorney, David Palay, Carla S. Sigler, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Wayne K. Jones, Jr., appeals his conviction for attempted second degree murder. Finding that the evidence was sufficient to support the conviction, we affirm, vacate the habitual offender sentence, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On October 8, 2008, at about 4:18 p.m., Corporal Dwayne Petroski of the Lake Charles Police Department was dispatched to 2013 9th Street where he found Kesiah Melbert in the passenger seat of a vehicle. He discovered that she had been shot several times.

On January 29, 2010, Wayne K. Jones, Jr., Defendant, was convicted of one count of attempted second degree murder, in violation of La.R.S. 14:27 and La.R.S. 14:30.1, and one count of aggravated assault with a firearm, in violation of La.R.S. 14:37.4.

The testimony at trial established that the victim and Defendant had recently broken up. Defendant’s sister, Adrienne Jones Johnson, helped him retrieve his belongings from the apartment he had shared with the victim and taken them to her house. Among those possessions was the dog the two had shared. On October 8, the victim, along with her sister, Miesha Melbert, went to Johnson’s house to get the dog back. Johnson called Defendant, and he told her not to let the victim take the dog. A short time later, he arrived at the house and blocked the victim’s vehicle so that she could not drive away. He approached the vehicle carrying a handgun. Johnson tried to tell him that the victim did not have the dog. Defendant fired the gun into the back window of the car, moved to the driver’s door and shot again, walked around the car and fired into the passenger’s side of the windshield, then moved again and fired into the passenger’s window. The incident took less than a minute, and then Defendant left. The victim got out of the car and only realized 12she had been shot when her sister told her. Johnson called 911 as Defendant was driving away.

Corporal Petroski testified that when he arrived on the scene and approached the women, he noticed that there was a blood spot on Kesiah’s back just below the lung area. Corporal Petroski raised Kesiah’s shirt and saw a small bullet hole on the right side of her back. Corporal Petroski asked Kesiah to exit the vehicle and move to the ground so he could better render aid. Kesiah moved to the ground, and Corporal Petroski asked Johnson to get some clean rags. When she returned, Corporal Petroski used the rags to compress the wound. As he was attending to the first wound, Kesiah mentioned that her lower backside was also hurting.

Corporal Petroski said that he looked down and saw another blood spot on Kesi-ah’s left buttock. He informed Kesiah that he was going to inspect the area. When he did, he saw two additional holes in Kesiah’s buttock. Corporal Petroski could not tell if the wounds were caused by two separate bullets or one bullet’s entry and exit. Corporal Petroski used another rag to put pressure on those two wounds. Corporal Petroski spoke with Kesiah while they waited for an ambulance to arrive. Kesiah told him that Defendant was her ex-boyfriend, that she had arrived at the house to pick up a dog, that the disagreement over the dog had started the incident, and that Defendant inflicted the wounds. The ambulance arrived, and Corporal Petroski backed away and let them attend to Kesiah.

Detective Corporal David Rupf with the Lake Charles Police Department was assigned to investigate the shooting that occurred at 2018 9th Street on October 8, 2008. Corporal Rupf testified about the crime scene and the crime scene photographs. The photographs showed that the victim’s car had bullet holes in the rear driver’s side window, front driver’s side window, the passenger’s side windshield, and the front passenger’s side window. The photographs also showed Ran unfired bullet and empty shell casings dispersed around the car. The images also showed a bullet hole in the dashboard, broken glass inside the car, a brass-colored bullet jacket on the floorboard of the car, and a dog kennel in the rear passenger’s seat. The photograph of the rear driver’s side compartment showed a butcher’s knife on the seat, blood stains on the back seat, and two holes in the back of the driver’s seat.

Following Defendant’s conviction, the State filed a habitual offender bill under a separate docket number alleging that Defendant was a third felony offender. Defendant appeared for his habitual offender hearing on October 6, 2010. After considering the evidence presented, the sentencing court found Defendant to be a third felony offender and ordered Defendant to serve life imprisonment without benefit of probation, parole, or suspension of sentence.

In docket number 11-399, Defendant appeals his conviction. In docket number 11 — 400, Defendant appeals his habitual offender sentence. On motion by Defendant’s counsel, these cases were consolidated for briefing purposes. Defendant raises one assignment of error in his consolidated brief: “The evidence adduced at trial was insufficient to support the conviction of attempted second degree murder.”

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, the court reviews all appeals for errors patent on the face of the record. After reviewing the records, we find two errors patent.

The trial court imposed an indeterminate sentence. The State charged Defendant as a habitual offender and sought to enhance both convictions. At the habitual offender hearing, the State announced it was ready to proceed with the [ 4habitual offender bill after Defendant had been convicted of attempted second degree murder and aggravated assault. At the conclusion of the presentation of evidence by the State, the trial court found in pertinent part:

I’m satisfied as to the identity of Mr. Jones based on the testimony and the evidence presented [sic] the identity of Mr. Wayne Kevin Jones as the person who has been convicted of these prior offenses and he is the same person who was convicted of the incident [sic] offense that we’re here for sentencing on.
Mr. Jones is a third felony offender for purposes of the habitual offender law and I will sentence him ... to serve the remainder of his natural life in prison. The court minutes accurately reflect the transcript.

In State v. Bessonette, 574 So.2d 1305, 1806 (La.App. 3 Cir.1991), the court explained in pertinent part: “Where a record fails to reflect that a defendant has been sentenced on all counts against him, the sentence imposed is rendered invalid. See State v. Brady, 506 So.2d 802 (La.App. 1 Cir.1987), appeal after remand, 524 So.2d 1356, writ denied, 532 So.2d 175 (La. 1988).”

The trial court imposed only one sentence although Defendant was convicted of two offenses. Additionally, it is unclear whether the trial court intended to enhance one or both convictions. Regardless, a sentence must be imposed on each separate conviction. Consequently, the habitual offender sentence is vacated, and the matter is remanded to the trial court for resentencing. The trial court is ordered to clarify which count or counts it is enhancing and to impose separate sentences for each conviction. See State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624.

Next, the record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code | sCrim.P. art. 930.8. Therefore, the court is directed to inform Defendant of the provisions of article 930.8 at resentencing.

Sufficiency of the Evidence

Defendant argues that, “The evidence adduced at trial was insufficient to support the conviction of attempted second degree murder.” Defendant alleges that the State failed to prove that he had the requisite specific intent to kill. Defendant claims that, because they were so close to each other, the victim would have been dead if he had intended to kill her.

The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:

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.

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

Defendant argues that he did not have the specific intent to kill Kesiah and that specific intent is a necessary element of attempt:

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.

|fiLa.R.S. 14:27(A). “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.

The evidence most favorable to the prosecution shows that Defendant blocked in Kesiah’s car with his own. He then exited his vehicle with a gun in his hand, approached Kesiah’s vehicle, and began firing through the windows at the occupants inside. As Kesiah moved around inside the automobile to get away from the gunfire, Defendant walked around the vehicle to get a clearer shot; each time Defendant obtained a clearer shot, Defendant fired again. Though Defendant did not succeed in killing Kesiah, multiple bullets struck her and had to be surgically removed. At least one of the bullets had to be removed from Kesiah’s chest. Defendant had threatened to kill Kesiah the night before; he also acted on the threat by getting a gun and driving back toward Kesiah’s location, although he stopped when he saw law enforcement at Kesiah’s location.

This court has held that evidence showing that a defendant fired a gun at someone multiple times is sufficient to support a conviction for attempted second degree murder:

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.

| State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215, writ denied, 10-2527 (La.4/1/11), 60 So.3d 1248, cert. denied, — U.S.—, 132 S.Ct. 196, 181 L.Ed.2d 102 (2011).

By aiming his gun at Kesiah and firing multiple shots at her, Defendant exhibited the specific intent to kill that is required by La.R.S. 14:27. Therefore, when the evidence is viewed in the light most favorable to the prosecution, there is sufficient evidence to support Defendant’s attempted second degree murder conviction.

Accordingly, this assignment of error is without merit.

CONCLUSION

Defendant’s convictions are affirmed. However, because Defendant’s habitual offender sentence is indeterminate, the habitual offender sentence is vacated and remanded to the trial court for resentenc-ing. The trial court is directed to clarify which count or counts it is enhancing and to impose separate sentences for each conviction.

Additionally, the trial court is directed to advise Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8.

AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Wayne K. JONES, Jr.
    No. 11-400.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Peggy J. Sullivan, Monroe, LA, for Defendant/Appellant, Wayne K. Jones, Jr.
    John F. Derosier, District Attorney, David Palay, Carla S. Sigler, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hFor the reasons set forth in the companion case hereto, State v. Jones, 11-399 (La.App. 3 Cir. 11/2/11), 76 So.3d 1274, Defendant’s convictions are affirmed. However, because Defendant’s habitual offender sentence is indeterminate, the habitual offender sentence is vacated and remanded to the trial court for resentenc-ing. The trial court is directed to clarify which count or counts it is enhancing and to impose separate sentences for each conviction.

Additionally, the trial court is directed to advise the Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8.

AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND REMANDED WITH INSTRUCTIONS.


author: GENOVESE, Judge.

text:
    Levi RODRIGUEZ v. CHRYSLER GROUP LLC.
    No. 11-524.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Fred A. Pharis, Pharis Law Offices, Alexandria, LA, for Plaintiff/Appellant, Levi Rodriguez.
    William F. Bologna, Dwight L. Acomb, New Orleans, LA, for Defendant/Appellee, Chrysler Group, LLC.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

11Plaintiff, Levi Rodriguez, appeals a judgment in favor of Defendant, Chrysler Group, LLC, dismissing his Suit for Redhi-bition and Damages. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 2006, Plaintiff purchased a 2006 Dodge 3500 Quad Cab pickup truck from Acadiana Dodge in Lafayette, Louisiana. The new truck had six miles on the odometer at the time of purchase. The truck had a “Basic Limited Warranty” which lasted “for [thirty-six] months ... or for 36,000 miles on the odometer,” and the truck’s motor “was covered by the Cum-mins Diesel Engine Limited Warranty for up to [five] years or 100,000 miles on the odometer, whichever comes first.” Plaintiff began using the truck in his welding business.

On June 27, 2008, Plaintiff filed a Suit for Redhibition and Damages against Defendant claiming that the truck contained redhibitory defects and that he was entitled to the return of the purchase price, damages, and attorney fees. According to Plaintiffs petition, the truck “was returned on May 19, 2008, to Gainesville Dodge in Gainesville, Florida, with complaints of a knocking noise within the express warranty periodf. D]espite the failure of the motor to operate in the intended manner during normal use, [Defendant] refused to repair the vehicle[.]” The truck had 69,-064 miles on the odometer at the time it was towed to Gainesville Dodge.

Defendant answered the suit, alleging that Plaintiff was “not entitled to recovery in this cause because the problems about which he complains were the result of [his] misuse, abuse, improper maintenance, and/or violation of the instructions set forth in the owners’ manual provided to [him] at the time of sale.” Defendant further asserted that “[a]ny defects alleged to exist in the vehicle |2occurred not through any fault of [itself], but solely as a result of the [fault] of [Plaintiff], including abuse, misuse, improper maintenance, and other intentional or negligent acts while the vehicle was in [Plaintiffs] sole and exclusive possession and control.”

After a bench trial held on November 22, 2010, judgment was rendered in favor of Defendant, finding the evidence did not establish the presence of redhibitory defects. Plaintiff appeals.

ASSIGNMENTS OF ERROR

On appeal, Plaintiff alleges:

1. The trial court erred in failing to properly apply the provisions of the Magnuson[-]Moss Warranty Aet[ ] in that it found that by using performance enhancing equipment and not having a diagnosis made by a certified Chrysler technician, the [Plaintiff “voided” the warranty[.]
2. The trial court thus erred in failing to find a violation of the [Magnuson-Moss Warranty] Act.
3. The trial court erred in failing to find the engine failure was caused by “a defect, malfunction, or failure to conform with such written warranty” within the meaning of the Magnuson[-]Moss Warranty Act.
4. The trial court erred by failing to enter judgment in favor of [Plaintiff, including reasonable attorney! ] fees.

Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301-2310)

Much of Plaintiff’s appellate brief focuses upon his contention that the trial court erred by not applying the provisions of the Magnuson-Moss Warranty Act to his claim. Defendant counters, arguing that Plaintiff “did not plead the Magnu-son-Moss Warranty Act at any time in this proceeding[.]”

The record reveals that at the start of trial, Plaintiff sought to have the trial court consider his claims under both Louisiana’s redhibition statute, La.Civ.Code art. 2520, and the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2310. [.-¡Plaintiff argued to the trial court that Defendant filed into the record of these proceedings a stipulation wherein Plaintiff’s claim under the Magnuson-Moss Warranty Act was recognized.

Defendant countered that the stipulation on which Plaintiff was relying, entitled Notice Regarding Treatment of Lemon Law Claims in Connection with Chrysler LLC Bankruptcy Cases and Sale of Assets to Chrysler Group LLC, was filed into the court’s record on September 28, 2009, after, and as a consequence of, the originally-named Defendant in this matter, Chrysler, LLC, entering into bankruptcy. When the present Defendant, Chrysler Group, LLC, was formed, it stipulated that if there were any claims filed under the Magnuson-Moss Warranty Act, then Chrysler Group, LLC, would defend those claims. However, Defendant argued that Plaintiffs pleadings only urged claims under Louisiana’s redhibition statute, La.Civ. Code art. 2520. Plaintiff never amended his pleadings to include a Magnuson-Moss Warranty Act cause of action in his claims. Further, Defendant argued that if Plaintiff had done so, it would have sought to have this matter removed to federal court. Finally, Defendant asserts, in its appellate brief, that Plaintiffs “current argument, in brief, regarding relief under the Magnu-son-Moss Warranty Act is not properly before this [c]ourt because counsel failed to even proffer evidence regarding what he believes to be a violation of [the Magnu-son-Moss Warranty] Act.”

After hearing the argument of the parties prior to the start of trial, the trial court ruled, “there is no pending Magnu-son-Moss claim in this matter[.]” The trial then proceeded with evidence relative to Plaintiffs claim against Defendant for redhibition.

We find no merit to Plaintiffs contention that the trial court erred by not applying the provisions of the Magnuson-Moss Warranty Act to his claim. At no |4time since the institution of his suit in June of 2008 has Plaintiff pled that he is entitled to recovery under the Magnuson-Moss Warranty Act. Even after Defendant’s filing of the Notice Regarding Treatment of Lemon Law Claims in Connection with Chrysler LLC Bankruptcy Cases and Sale of Assets to Chrysler Group LLC in September of 2008, Plaintiff did not plead that he was entitled to recovery under the Magnuson-Moss Warranty Act. We find no merit in Plaintiffs contention that Defendant consented by stipulation to defend a federal claim.

Redhibition

The standard of appellate review to which this court is bound is set forth in Hearod v. Select Motor, Co., Inc., 07-1502, p. 4 (La.App. 3 Cir. 4/2/08), 980 So.2d 830, 833-34, writ denied, 08-931 (La.6/20/08), 983 So.2d 1283, as follows:

In redhibition cases, “[t]he ultimate question of the existence of a redhibitory vice ... [is a question] of fact for the trial court, which should not be disturbed in the absence of manifest error or abuse of its wide discretion.” Pardue v. Ryan Chevrolet, Inc., 31-52, p. 6 (La.App. 2 Cir. 9/28/98), 719 So.2d 623, 626-27, writ denied, 98-2714 (La.12/18/98), 734 So.2d 639 (citations omitted). Consequently, “[a]n appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong.” Blackman v. Brookshire Grocery Co., 07-348, p. 2 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185, 1187 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). “In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Tidwell v. Premier Staffing, Inc., 05-500, p. 2 (La.App. 3 Cir. 2/1/06), 921 So.2d 1194, 1196 (citations omitted). Accordingly, we will review the record in its entirety to determine whether the trial court’s factual findings were reasonable in light of the record evidence.

Plaintiffs final assignment of error addresses whether the trial court erred in ruling that Plaintiff failed to prove the existence of a redhibitory defect. Louisiana Civil Code Article 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not | shave bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Plaintiff claims the truck that he purchased from Acadiana Dodge contained a defective motor. Plaintiff sought rescission of the sale after repair was denied under the motor’s warranty due to an allegation that he had installed a performance-enhancing device. At trial, Plaintiff called two witnesses to testify: Tony Borman, Acadiana Dodge’s service manager; and his father, Kent Rodriguez, a diesel mechanic with over thirty-four years of experience. Plaintiff offered Mr. Kent Rodriguez, and he was accepted by the trial court, as an expert in “diesel engine repair.”

Mr. Borman was questioned regarding all of the repairs performed on Plaintiffs truck at Acadiana Dodge between July 7, 2006 and May of 2008 — when Plaintiffs engine failed in Gainesville, Florida. Mr. Borman testified he had no direct knowledge that Plaintiff had used a performance-enhancing device on his truck. However, on cross-examination, when it was revealed to Mr. Borman that Gainesville Dodge had discovered evidence of Plaintiffs use of a performance-enhancing device, and that Plaintiff was not denying the use thereof, only that the use was the cause of the engine failure, Mr. Borman opined that such a device could adversely affect and could have caused the engine failure which Plaintiff encountered with his truck.

Plaintiffs expert, Kent Rodriguez, testified that he personally repaired Plaintiffs truck after Defendant refused. It was his opinion that the truck’s engine did not fail because of the performance-enhancing device. According to Plaintiffs expert, the truck’s engine was defective.

| (¡Defendant presented the testimony of two individuals, both of whom were accepted by the trial court accepted as experts: Stephen J. Harris, an ASE Certified Master Mechanic in diesel engines; and, Steve Huen, an expert in Cummins diesel engines and a Chrysler Technical Representative. Mr. Harris was the mechanic at Gainesville Dodge who first inspected Plaintiffs truck after it experienced engine failure in May of 2008. According to Mr. Harris, he observed evidence of the use of a performance-enhancing device. Mr. Harris opined that the engine failed due to the use of a performance-enhancing device.

Similarly, Mr. Huen explained that he concluded that the use of a performance-enhancing device caused the engine failure in Plaintiffs truck. He testified that the performance-enhancing device caused the turbocharger to malfunction. He, like Mr. Harris, opined that the engine over-fueled, resulting in its failure, because of the performance-enhancing device.

Given the totality of the evidence, the trial court was free to accept the version of events presented by Defendant and discount Plaintiffs evidence. The trial court made determinations of credibility and chose between competing views of what led to the engine malfunction at issue herein — whether it was a defect in the engine or the use of a performance enhancing device which led to the engine’s failure. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Rosell, 549 So.2d at 844. From our thorough review of the record, we find that the evidence supports the trial court’s judgment. The judgment is neither manifestly erroneous nor clearly wrong. Plaintiff failed to establish that a redhibitory defect pertaining to the engine existed at the time of sale.

|7DECREE

For the foregoing reasons, we find no error by the trial court in not applying the Magnuson-Moss Warranty Act to Plaintiffs claim, and we find no manifest error in the trial court’s ruling that Mr. Rodriguez failed to prove all of the factors needed to establish that a redhibitory defect in the engine existed at the time of sale. The judgment of the trial court is affirmed. All costs of this appeal are assessed to Plaintiff/Appellant, Levi Rodriguez.

AFFIRMED.


author: PAUL A. BONIN, Judge. JONES, J.,

text:
    Lois BONNER, as Administrator, and on Behalf of the Succession of Queen Esther Smith Bonner v. Jacqueline Mae GOLDBERG, Gilsbar Specialty Insurance Services, L.L.C., and Continental Casualty Company.
    No. 2011-CA-0768.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 2011.
    Stacey L. Thomas, The Law Office of Stacey L. Thomas, McIntosh, AL, for Plaintiff/Appellant.
    John A. Stewart, Jr., Baldwin Haspel Burke & Mayer, LLC, New Orleans, LA, David S. Daly, Elliot M. Lonker, Allen & Gooch, ALC, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).

      . Formerly designated La. R.S. 9:2551 et seq.

   PAUL A. BONIN, Judge.

|,The administratrix of the succession of Queen Esther Smith Bonner, the client, on December 30, 2005, filed a legal malpractice suit against her former attorney and her insurers. The former attorney, Jacqueline Goldberg, filed a third party demand against another attorney, Roderick Morris. Mr. Morris, it seems, must have filed an exception of peremption to the administratrix’s petition.

A hearing on an exception of peremption was held on December 10, 2010, but the transcript of the hearing is not included in the record before us. At the conclusion of the hearing, the trial judge by written judgment sustained the exception of per-emption and dismissed the suit with prejudice as to Ms. Goldberg and her insurers only; the judgment is silent as to Mr. Morris.

12In prefatory remarks contained in its judgment, the trial court found that La. R.S. 9:5821 et seq, is constitutional but could not be applied to this action and that Governor Blanco exceeded her executive-power authority in issuing executive orders which purported to suspend or extend preemptive periods until November 25, 2005.

The judgment suggests that the latest date by which the legal malpractice suit could be filed was October 26, 2005, which is three years from the date on which the late Mrs. Bonner’s medical malpractice claim prescribed. Finding that the per-emptive period provided for in La. R.S. 9:5605 A had not been suspended or extended, the trial court determined that filing of the lawsuit on December 30, 2005 resulted in a perempted cause of action.

The administratrix, Lois Bonner, timely devolutively appealed the judgment of dismissal with prejudice on February 15, 2011. She was then notified by the clerk of the district court that the estimated costs of the appeal were $3,815.90, which were due by March 21, 2011. In the Notice of Estimated Appeal Costs, Ms. Bonner’s counsel was notified that “[a] party must have complied with Article 2128 of the Code of Civil Procedure in order to designate the record.” On the due date, Ms. Bonner ex parte moved for a thirty-day extension of time by which to pay the court costs. Cf. La. C.C.P. art. 2126 B (“The trial court may grant one 1 sextension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.”) Ms. Bonner did not question the excessiveness of the estimated costs. See La. C.C.P. art. 2126 C. The trial judge granted a thirty-day extension from March 22, 2011.

Then, for the first time, on April 19, 2011, Ms. Bonner ex parte moved to designate the record. She submitted to a district judge, one not the trial judge, an order permitting her to designate the record. She designated only the petition for damages, a memorandum in support of the peremptory exception of Mr. Morris with only five of at least seventeen exhibits attached to it, a memorandum in support of the constitutionality of La. R.S. 9:5822 filed by the attorney general’s office, the reply of Mr. Morris to the attorney general, the judgment itself, the motion and order for appeal, the notice of estimated appeal costs, and the motion for extension of time to pay the court costs. The district judge signed the order.

In order to avail herself of designating the record, however, an appealing party “within three days, exclusive of holidays, after taking the appeal ... may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal.” La. C.C.P. art. 2128 (emphasis added). Ms. Bonner’s designation of the record is clearly too late.

The resulting record on appeal before us does not include the exception, if any, filed by Ms. Goldberg and her insurers, who are the only named defendants in |4the only petition for damages included in the record. Moreover, Mr. Morris’ exception (to whatever pleading) is not included in the record. The pleadings which generated an appearance by the attorney general are not included. And, most importantly and critically, the transcript of the hearing on the peremption issue is not included. “When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.” La. C.C.P. art. 2128. See also Bezet v. Original Library Joe’s, Inc., OX-1586, pp. 6-7 (La.App. 1 Cir. 6/21/02), 835 So.2d 472, 475.

Ms. Bonner’s record-designation is also deficient for another reason. An appealing party who designates only portions of the record on appeal “must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.” La. C.C.P. art. 2129 (emphasis added). Here, Ms. Bonner’s attempted designation is void of any statement whatsoever of the points on which she intends to rely. Thus, even if we found the designation timely (which it is not), we would be woefully constrained in our review of the already-truncated record. See Ice v. Dry Klean Carpet Maintenance Co., 03-0525, pp. 4-5 (La.App. 4 Cir. 12/3/03), 863 So.2d 596, 598-599; see also Peyton Place, Condominium Associates, Inc. v. Guastella, 08-365, p. 11 (La.App. 5 Cir. 5/29/09), 18 So.3d 1B2, 141 (“This appeal is limited to the points relied upon in the Article 2128 Determination pursuant to La. C.C.P. art. 2129.”).

|fiIn effect, we have no evidentiary record. “The appellant has the duty to secure either a transcript of the testimony or a narrative of the facts; and the inadequacy of the record, if any, is imputable to the appellant.” Olson v. Olson, 04-1137, pp. 4-5 (La.App. 5 Cir. 3/1/05), 900 So.2d 52, 54-55. Ordinarily, “[i]n such cases where the record contains neither a transcript nor a narrative of facts agreed to by the parties, there is nothing for appellate review and the trial court’s ruling is presumed correct.” Id., p. 5, at 55.

The parties have argued in this court as if the issue of peremption in this case is a strictly legal one. But from our limited review it seems clear that we would have to reach or determine the constitutionality of La. R.S. 9:5822 as well as of Governor Blanco’s executive orders on the basis of this paltry record, and we ought to refrain from such action unless it is essential to deciding the case or controversy. See Cat’s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186, 1199. Without an evidentiary record, we cannot ascertain whether this case might be disposed of on nonconstitutional grounds or basis. Id.

The proper judgment upon this record, especially in the light that the record-designation was untimely, is to dismiss this appeal without prejudice and afford the appellant, Lois Bonner, an additional twenty days from the finality of this judgment within which to pay the estimated costs of the appeal so that the clerk of the district court may prepare a complete record, including pleadings and transcripts, of the proceedings below. If Ms. Bonner fails to timely pay the 1 fiestimated costs within the time specified, the trial court shall proceed under La. C.C.P. art. 2126 E.

DECREE

The instant appeal of Lois Bonner is dismissed without prejudice.

APPEAL DISMISSED WITHOUT PREJUDICE

JONES, J., dissents with reasons.

BAGNERIS, J., concurs in the result.

JONES, J.,

dissents with reasons.

_JjMy review of the record indicates that the district court erred in sustaining the exception of peremption and dismissing with prejudice the petition of the Appellant, Lois Bonner, as to Ms. Goldberg and her insurers. I would find that the Executive Order of Governor Blanco extending peremption and prescription has been recognized by both the legislature and the judicial branches of government. Thus, for these reasons, I respectfully dissent.

      . The insurers were identified as Continental Insurance Company and Gilsbar Specialty Insurance Services, Inc.

      . As will be-more fully explained post, we infer the existence of the third party demand from the parties’ briefs, but it is not part of the record before us.

      . The record before us contains only an original petition, without amendments or supplements. Mr. Morris is not named as a party defendant in the original petition. As will be more fully explained post, the record does not include any exception filed either by Mr. Morris or by Ms. Goldberg.

      . But see La. C.C.P. art. 1918 ("When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.”)

      . The executive orders at issue are KBB OS-32, KBB 05-48, and KBB 05-67, which progressively suspended or extended peremptive periods through November 25, 2005. La. R.S. 9:5821 became effective on November 23, 2005.- Its provisions purported to approve, ratify, and confirm Governor Blanco’s actions in issuing the executive orders. See La. R.S. 9:5821 B. The law also further purported to extend peremptive periods which would have lapsed between August 26, 2005 through and until January 3, 2006. See La. R.S. 9:5822.

      . "Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal.” Jones v. Jones, 09-757, p. 5 (La.App. 5 Cir. 12/29/09), 30 So.3d 137, 139.

      . There is a suggestion in brief that Ms. Bonner and her counsel did not oppose the exception or appear at the hearing.


author: PAINTER, J. SAUNDERS, J.,

text:
    SUCCESSION OF Frank BERNAT.
    No. 11-368.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Rehearing Denied Dec. 21, 2011.

      Gregory Brian Upton, Gregory B. Odom, II, Alexandria, LA, for Appellees, Carolyn Dianne Turna and Joanne Kotar McLain.
    Gwenda Reneé Linzay Lamb, Alexandria, LA, for Appellant, Henry A. Bernat.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, J.

|!Henry A. Bernat (Henry), nephew of the testator, Frank Bernat (Bernat), appeals the trial court’s judgment interpreting the testator’s will as leaving equal shares to each of the eleven legatees. On appeal, Henry asserts that the will was null as to form and, alternatively, that the trial court erred in making a decision about the provisions of the will without having read it, erred in allowing parole evidence as to the intent of the testator, and misinterpreted the provisions of the will. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The testator, and his attorney, Mark Watson, composed a will which was executed on January 19, 2010. The statutory will was executed at Cabrini Hospital in Alexandria, Louisiana, in the presence of two witnesses, Connie Lawrence and Chastity Stroud, and was notarized by Watson.

Watson read the will to Bernat. After-wards, Watson asked Bernat if the contents of the will were what Bernat had wished. Bernat responded in the affirma-five in the presence of the witnesses. Watson then asked Bernat to sign the five page will. Being unsteady due to his ailments, Bernat signed the end of the first page with a shaky hand. Because of Ber-nat’s shakiness, Watson decided to direct Bernat to sign an “X” at the end of the second page. Bernat proceeded to sign the third, fourth, and fifth pages with his signature. The fourth and fifth pages both contained two signature lines for the testator: one line in the middle or top two-thirds of the page, and the other at the very end of the page. On the fourth and fifth pages, Bernat signed each upper signature line with his signature, and each lower signature line with an “X.” As a result, the first and third pages contain Bernat’s signature, the second page contains only an “X,” and the fourth and fifth | s.pages, the fifth bearing the attestation clause contain both a signature and an “X.” The entire process of signing was conducted in the presence of Watson, who notarized and signed the attestation clause, and the witnesses, who also signed the attestation clause.

Executrixes, Carolyn Turna and Joanne McLain, nieces of Bernat, filed the will for probate on April 14, 2010. In response, Henry, the testator’s nephew and first cousin of the executrixes, intervened in the probate proceedings, challenging the interpretation of the will. The trial court issued a judgment on January 14, 2011, interpreting the will as urged by the execu-trixes. Henry filed this appeal on February 2, 2011, asserting noncompliance with form requirements and misinterpretation of the will.

ASSIGNMENTS OF ERROR

Henry alleges that the trial court erred in the following respects:

1. The Court erred in failing to take judicial notice that the “testament” does not comply with the requirements of Louisiana Civil Code Art. 1577, et seq[.] and therefore, [the will] is invalid and should not have been accepted by the court with the effect of probate. (R. 4) ALTERNATIVELY:
2. The Court determined the intent of the testator from the purported Last Will and Testament of Frank Bernat without ever reading and studying the testament (R. 164, Lines 5-6)
3. The Court erred in failing to apply the [principle] of in pari material and construe “according to their legal share” uniformly throughout the testament and especially in not considering that the testator defines this phrase once in the testament itself in article VII as a per stirpes distribution. (R. 12, R. 176, Lines 16-20, R. 177, Lines 1-4, R. 177, Lines 6-8) “Respective percentages” in Article IX, also indicates varying percentages which assist with understanding “according to their legal share[,]”[ ] however the court did not read this. Thus the court erred in failing to be guided by the rest of the testament.
4. The Court erred in holding that the Last Will & Testament bequeathed Mr. Bernat’s property by heads instead of by roots, ignoring the language “appropriate legal share” meaning what the law itself provides and Louisiana Civil Code Art. 888, being the law, which ^designates “roots” as the proper distribution of property when descendants take[ ] from ascendants by representation. (R. 109)
5. The Court erred in admitting extrinsic evidence and overruling Henry Bernat’s objection to the testimony as the testament is clear. (Testimony begins — R. 177) (Object overruled — R. 177, Line 23)
6. The Trial Court improperly adopted the testimony of Mr. Watson for the testator’s intent.
7. The Trial Court erred in failing to award attorneys fees to Appellant as the Co-executrixes were not serving the estate when they undertook arguments adverse to the testament and the law.

LAW AND ANALYSIS

In his first assignment of error, Henry argues that the Court erred in failing to take judicial notice that the will does not comply with the requirements of La. Civ.Code art. 1577. The will, he asserts, is invalid due to decedent’s failure to sign each separate page of the document.

However, Henry failed to raise the validity of the will in the trial court. Uniform Rules — Courts of Appeal, Rule 1-3 provides that:

The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

(Emphasis added.)

Therefore, we will not consider the validity of the will for the first time on appeal.

Evidence

Henry argues that the trial court erred in allowing and relying on the testimony of Mark Watson to interpret the will and in interpreting the will without having read it.

14While the trial court did at one point state that it had not read the will, the will was admitted into evidence, and its language was discussed extensively during the hearing. The trial court was clearly cognizant of the terms of the will.

Further, we find no error in the trial court’s decision to allow the testimony of Mark Watson, the attorney who drafted the will. Louisiana Civil Code Article 1611 provides, in pertinent part that:

A. The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.

As in In re Succession of Costello, 00-2672 (La.App. 4 Cir. 2/13/02), 811 So.2d 63, 67, the parties here disagree as to the exact meaning of certain provisions of the will. “Therefore, the trial court was obligated to determine the testator’s intent at the time the testament was drafted. [The attorney] was the only living individual who could give testimony on this issue.” Id. Therefore, we find, as did the court in Costello, that the trial court did not err in permitting Watson to testify.

Interpretation of the Will

The controverted provisions of decedent’s will are those in paragraphs III, VI, and VII, in which property is bequeathed to the eleven legatees “in indivi-sión, according to their appropriate legal share,” and that in paragraph IX which states that:

Further it is not my intention that the residuary legatees named herein shall receive their proportionate percentage in each and every asset forming the remainder of my Estate, but rather that they shall receive property or properties to be selected by my Executor, which shall satisfy the respective percentages bequeathed to them of the remainder of my assets.

Henry argues that this language reveals the intention of the testator that the property be divided among the legatees by roots.

|fiHenry cites La.Civ.Code arts. 884, 885, 888, and 892 as support for his argument that “legal share” for descendants of brothers and sisters of the deceased means a division by roots. However, these articles apply to intestate successions, and nothing in the will suggests that the decedent wanted the laws governing intestacy to apply. Henry further cites the use of the term “respective percentages” as support for the idea that the decedent expected each legatee to receive a different percentage rather than an equal share, a result which could only occur if the legacy was divided by roots rather than by heads. We do not agree. As noted by Appellees, the word respective does not by definition mean unequal.

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” S.J. v. Lafayette Parish School Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. If a trial court’s findings are reasonable based on the entire record and evidence, an appellate court may not reverse those findings even if it is convinced that it would have weighed the evidence differently. Id. “The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between respective courts.” Edwards v. Daugherty, 98-635, p. 4 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, 348, unit denied, 99-2034 (La.9/17/99), 747 So.2d 568.

Sylvester v. Fontenot, 10-1115, p. 6 (La. App. 3 Cir. 3/9/11), 58 So.3d 675, 679-80.

After reviewing the entire record, we find no error in the trial court’s determination that the testator intended to divide his estate equally between the eleven legatees. Attorney’s Fees

In his last assignment of error, Henry contends that the trial court erred in failing to award attorney’s fees due to the allegation that the co-executrixes did not | fiserve the estate when they undertook arguments adverse to the testament and the law.

It is well-established the succession representative has a duty to defend the validity of the testator’s last will and testament. Thus, as a general rule, the costs incurred in a will contest proceeding should be assessed to the mass of the succession rather than against the succession representative individually.

Atkins v. Roberts, 561 So.2d 837, 841 (La. App. 2 Cir.1990) (citing Succession of Kite, 366 So.2d 602 (La.App. 3d Cir.1978), writ denied, 369 So.2d 155 (La.1979)). In the instant case, the co-executrixes submitted Bernat’s will for probate and defended against Henry’s oppositions to the will. Since the co-executrixes, as succession representatives, were carrying out their duty to Bernat’s estate and since Henry’s arguments have been rejected by this court, we decline to award attorney’s fees to Henry.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Appellant, Henry Bernat.

AFFIRMED.

SAUNDERS, J. dissents and assigns written reasons.

SAUNDERS, J.,

dissenting.

hi respectfully dissent. See Louisiana Civil Code Arts. 1577,1578,1579.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Lloyd BOBO, Jr., Appellant.
    No. 46,225-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 2011.

      Boykin, Ehret & Utley by Terrill W. Boykin, New Orleans, LA, Roberts and Bishop by Kenneth T. Roberts, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason Trevor Brown, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

hThe defendant, Lloyd Bobo, Jr., was convicted of two counts of possession with intent to distribute a Schedule I controlled dangerous substance (“CDS”), namely, marijuana and ecstasy, and one count of possession with intent to distribute a Schedule II CDS, namely, cocaine. On March 19, 2009, the defendant was adjudicated a third-felony offender and sentenced to serve 25 years’ imprisonment at hard labor for each count of possession with intent to distribute the Schedule I narcotics and 30 years’ imprisonment at hard labor for possession with intent to distribute cocaine. All sentences were ordered to run consecutive to each other for a total sentence of 80 years’ imprisonment at hard labor. The defendant now appeals. For the following reasons, we affirm the defendant’s convictions but remand for resentencing.

FACTS

On March 13, 2008, Narcotics Agent Manuel Rosado and Officer Jeremy Edwards, both of the Shreveport Police Department, stopped the defendant for a traffic violation as he was driving a rented, white Impala through the Cedar Grove area of Shreveport. Agent Rosado testified that the defendant failed to come to a complete stop at a stop sign. A pat-down of the defendant yielded a “wad” of cash totaling approximately $1,700. Officer Edwards checked and discovered that there was an outstanding warrant for the defendant for driving with a suspended license. They arrested the defendant and transported him to the Shreveport City Jail. Rosado testified that he did an inventory search of the vehicle before releasing it and found a fully loaded .40 Caliber handgun beside the center |2console. Rosado also testified that the defendant was moving around a lot in the back seat of the unit while being transported. Experience told him that the defendant was trying to remove something from his possession. After Bobo was removed from the vehicle, Edwards searched the back seat area and discovered a bag of what appeared to be narcotics on the floorboard where defendant had been seated. The items were tested and confirmed to be marijuana, (powder) cocaine, crack cocaine and ecstasy. Agent Rosado stated that the vehicle was searched prior to placing the defendant in the back seat of the unit, and there were no other passengers in the unit that day.

The state charged the defendant with violating La. R.S. 40:967(A)(1) for possession of cocaine with intent to distribute, and two counts for violation of La. R.S. 40:966(A)(1) for possession of marijuana and ecstasy with intent to distribute, and for violation of La. R.S. 14:95(E) for illegal carrying of a weapon while in possession of controlled dangerous substances. Defendant was tried by jury. After trial, the jury found the defendant not guilty of carrying a firearm while in possession of a controlled dangerous substance. The jury found the defendant guilty of all three charges of possession with intent to distribute cocaine, marijuana and ecstasy.

The state filed a bill of information charging the defendant as a third felony habitual offender. A contradictory hearing was held on March 16, 2009. After the state presented its evidence and the court heard the defendant’s objections, it adjudicated the defendant a third felony offender.

|sOn March 19, 2009, after some discussion and uncertainty about whether only one or all the sentences for the instant convictions could be enhanced, the court concluded that it could enhance the sentences of all three instant convictions. The court then denied the defendant’s timely motions for new trial and post verdict judgment of acquittal and imposed the sentences set forth above.

The defendant filed this appeal alleging several assignments of error regarding his conviction and sentence.

DISCUSSION

We begin our review with the defendant’s fifth assignment of error in which he alleges that the trial court erred in denying both his post-trial motions, each of which pertain to the sufficiency of evidence to convict. When several issues are raised on appeal and one or more questions involve the sufficiency of the evidence, the reviewing court should review the sufficiency claims first because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The standard of appellate review is whether a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

|/This standard is now legislatively embodied in La. C. Cr. P. art. 821. It does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable- in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/05/99), 737 So.2d 747.

In this case, all three of the defendant’s convictions are for possession of Schedule I and II controlled dangerous substances with intent to distribute. The crime of possession with intent to distribute a Schedule I or Schedule II substance requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. State v. Johnson, 34,902 (La.App. 2 Cir. 9/26/01), 796 So.2d 201; State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881.

|sRegarding the element of possession of a controlled dangerous substance, the state need not prove the defendant was in physical possession of the narcotics found; constructive possession is sufficient to support a conviction. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge can be inferred from the circumstances. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910. A determination of possession sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession includes his knowledge that the drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. Id., State v. Gipson, 45,121 (La.App. 2 Cir. 4/14/10), 34 So.3d 1090, writ denied, 2010-1019 (La.11/24/10), 50 So.3d 827; State v. Anderson, 36,969 (La.App. 2 Cir. 4/9/03), 842 So.2d 1222.

In this instance, the state presented proof of defendant’s possession of the narcotics by circumstantial evidence. The pat-down search for weapons on the defendant revealed a large “wad” of cash amounting to $1,700. Although the officers did not discover drugs from this pat-down search, they later found a bundle of various narcotics on the back seat floorboard after transporting the defendant to the Shreveport City Jail. Agent Rosado testified that the defendant was moving back and forth in the back seat “as if he was trying to take something out of his person.” Agent Rosado stated Rthat he has seen this many times in his police experience, so when they arrived at the station, he instructed Officer Edwards to check the vehicle for drugs or weapons, whereupon Officer Edwards found the drugs. Agent Rosado further stated that it was standard procedure to check the police units prior to and after each shift, as well as after transporting a person who has been arrested. On that shift, the defendant was the only person arrested. Randall Robilliard, with the North Louisiana Crime Lab, testified that he analyzed the narcotics in this case, which confirmed the drugs were cocaine, MDMA (ecstasy) and marijuana.

We conclude that a rational jury could have concluded, based on the Jackson standard, that the defendant was in possession of the drugs and disposed of the drugs in the back seat of the police unit. Accordingly, the evidence was sufficient to prove the possession element of the crime.

When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the state must prove the amount of the substance, and/or the manner in which it was carried was inconsistent with personal use. State v. Anderson, supra; State v. Johnson, supra. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. Id. Factors useful in determining whether the state’s circumstantial evidence is sufficient to prove intent to distribute include (1) whether the defendant ever distributed or attempted to distribute illegal drugs; (2) whether the drug was in a form usually associated with distribution; (3) whether the amount was such toJj_create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant’s actual or constructive possession was inconsistent with personal use; and (5) the presence of other paraphernalia evidencing intent to distribute. Id.

Agent Rosado testified, based on his experience, that the large quantity and variations of narcotics coupled with a large sum of money caused him to believe that the defendant was a distributor of drugs rather than an addict. The amount of ecstasy was described as being more than a handful of pills.

Additionally, Agent Carl Townley of the Caddo-Shreveport Narcotics Unit testified as an expert in narcotics investigations, packaging, use and sales of narcotics and possession with intent versus simple possession. Townley testified that packaging was a key element in determining whether the substance was intended for sale rather than use, and whether it is packaged in large doses or small doses. Other factors include the type of drug compared to the amount, and the denominations of currency found on the perpetrator. Townley testified that the crack cocaine seized was packaged in quantities for resale, although in different quantities. Townley said that crack cocaine users, as opposed to dealers, never have a lot of cash on them because they use their money to buy crack. Town-ley expressed his opinion that the one gram of powder cocaine was consistent with it being intended for distribution. He said the 90 ecstasy tablets were also consistent with distribution sales. Finally, he stated that approximately 10 grams of marijuana could have been for resale. Based on packaging, the amount of | seach substance, the amount of money in the defendant’s possession and the lack of paraphernalia for using the drugs, such as a crack pipe, Townley expressed his expert opinion that the defendant was a dealer.

Based on this evidence and testimony, the jury must have concluded that the defendant had the specific intent to distribute the drugs of which he was in possession. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2 Cir. 5/08/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 1998-0282 (La.6/26/98), 719 So.2d 1048. In this instance, we conclude that a rational trier of fact could have reasonably concluded that the defendant was guilty beyond a reasonable doubt of possession of these Schedule I and II controlled dangerous substances with the intent to distribute. Accordingly, this assignment is without merit.

Turning now to defendant’s first assignment of error, by this assignment defendant contends that the trial court committed reversible error in finding that he was a third felony offender. Specifically, the defense argues that because the state did not produce a contemporaneous transcript of the defendant’s guilty plea colloquy for the defendant’s second conviction in Caddo Parish for possession with intent to distribute a 13Schedule I CDS, the state failed to meet its burden of proof that the defendant was a third felony offender, citing State v. Haley, 38,258 (La. App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, State ex rel. Haley v. State, 2004-2606 (La.6/24/05), 904 So.2d 728. Additionally, appellate counsel also argues that this alleged error was compounded by defense counsel’s failure to ask for a continuance of the habitual offender hearing to review the transcript.

The record contains the state’s supplementary discovery response filed on March 13, 2009, in which it provided the bills of information for the two previous felony convictions, the fingerprints of the defendant on the bills of information, and certified copies of the court minutes that indicate that the defendant withdrew his previous plea of not guilty and entered a guilty plea after being advised of his rights. The minutes of the first guilty plea colloquy reflect that the defendant was advised of his right to trial, his right to confront witnesses, to compulsory process, his right to counsel and the right not to incriminate himself. Additionally, the minutes reflect that after questioning, the court determined that the guilty plea was free and voluntary. The minutes of the second guilty plea merely state that the defendant was advised of his constitutional rights per Boykin v. Alabama, followed by the parenthetical “(See court reporter’s transcript).” These items were placed into evidence.

At the habitual offender hearing, the state introduced S-l, which was an index card with fingerprints of the defendant taken on the day of the hearing. With the state’s fingerprint expert, Lieutenant Owen McDonnell, | intestifying, these prints were compared to the prints on state’s exhibit S-2, which included the bill of information and prints from the charge in the Twenty-Sixth JDC and the certified court minutes of the proceedings, and S-3, which included the prints on the bill of information from the First JDC for charges relating to Lloyd Bobo, Jr. and the court minutes of the proceedings. Lieutenant McDonnell visually inspected the prints and concluded that the prints on the bills of information matched those taken from the defendant earlier that day.

Defendant’s counsel objected to S-3 on grounds that the court minutes of that exhibit did not specify what rights the defendant was informed of per Boykin, in that, the minutes only stated that the defendant was advised of his constitutional rights per Boykin v. Alabama followed by the parenthetical “see court reporter’s transcript” rather than specifically listing the rights to which the defendant was advised of prior to pleading guilty. Because of that objection alone, appellate counsel contends that the trial court erred in finding that the state had proven the defendant committed the second felony and now seeks a reversal of the adjudication that he was a third felony habitual offender.

To obtain a multiple offender adjudication against a defendant, the state must prove by competent evidence that (1) there is a prior felony conviction and (2) that the defendant is the same person convicted in the previous proceeding. State v. Jeffers, 623 So.2d 882 (La.App. 2 Cir.1993). In order to enhance a sentence with a prior guilty plea, the state bears the burden of proving that the guilty plea was constitutionally taken. lT1Before entering a guilty plea, a defendant must be advised of and waive his constitutionally guaranteed right to a jury trial, right to confrontation and privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Flanagan, 32,535 (La.App. 2 Cir. 10/29/99), 744 So.2d 718.

In State v. Shelton, 621 So.2d 769 (La.1993), our supreme court held:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights. State v. Shelton, supra at 780,

(Emphasis supplied).

In State v. O’Neal, 34,814 (La.App. 2 Cir. 10/12/01), 795 So.2d 1292, a panel from this court was presented with substantially identical facts to those in this case. The defendant argued that the only evidence of his guilty plea in a prior cocaine possession conviction was a minute entry showing he had been advised of his rights under Boykin v. Alabama, supra. |1gHe argued that the record does not indicate what statements the clerk considered as the defendant’s Boykin rights, and the trial court failed to advise him of the possible penalties for the crime charged. The defendant urged that, standing alone, the minute entry was insufficient in these circumstances, and the plea should not have been used to adjudicate him a third felony offender.

Defense counsel in O’Neal nowhere argued any infringements of the defendant’s rights or any irregularity with the guilty plea. Rather, his sole complaint was simply the lack of specificity in the minutes. Because the state produced certified copies of the bill of information, a certified copy of the minutes, and an expert that identified the fingerprints on those documents to be those of the defendant, we found that the state more than met its initial burden of proof. Since the defendant did not demonstrate any infringements or irregularity in the taking of the guilty plea, the state was not obligated to produce a perfect transcript. State v. Shelton, supra. The minutes reflected that the defendant was represented by counsel and convicted of the offense; therefore, the burden shifted to the defendant to prove an irregularity, and this burden was never met. Consequently, we affirmed the finding of the trial court that the defendant was a third felony offender.

| ^Similarly, in State v. Calhoun, 42,896 (La.App. 2 Cir. 1/16/08), 974 So.2d 805, writ denied, State ex rel. Calhoun v. State, 2008-0579 (La.11/26/08), 997 So.2d 544, the defendant argued that the evidence was insufficient to adjudicate him a second felony offender. Defendant argued that the minutes introduced by the state to prove that the defendant was properly advised of his Boykin rights for a prior conviction, via plea, was defective because the minutes did not list the three rights. This court concluded that the state met its initial burden under Shelton because the minutes introduced indicated that the defendant was present for the guilty plea with counsel, and he was advised of his Boykin rights. The court noted that the defendant only complained that the Boykin transcript was not produced. Because the defendant failed to introduce any evidence to show an infringement or irregularity with the guilty plea, he failed to meet his burden of proof. See also State v. Warfield, 37,616 (La.App. 2 Cir. 10/29/03), 859 So.2d 307, writ denied, State ex rel. Warfield v. State, 2004-0152 (La.2/4/05), 893 So.2d 87.

In the case sub judice, the certified court minutes reflect that the defendant was represented by counsel, Daryl Gold, at the guilty plea hearing for the second felony offense and reflect that the defendant was advised of his constitutional rights “as per Boykin v. Alabama.” The record does not show that the defendant denied the two prior convictions, or that he was not the same person who pled guilty to the second felony of possession with intent to distribute a Schedule I CDS. Nor has the defendant alleged any infringement of his rights at the guilty plea hearing, or submitted a written |14response to the information as required by La. R.S. 15:529(D)(l)(b). Counsel’s only complaint lodged at the habitual offender hearing consisted of his complaint that the state failed to produce a complete transcript from that second felony hearing for counsel to examine for defects.

We find that the state met its initial burden of proof regarding the second felony conviction and the defendant alleged no infringement of his rights that would require the state to produce a perfect transcript of the guilty plea colloquy. Based on the reasoning and holdings of State v. O’Neal, supra, and State v. Calhoun, supra, we conclude that this assignment is without merit.

Defendant also complains in this assignment on appeal that his counsel erred when it failed to ask for a continuance of the hearing to review the transcript of the Boykin colloquy which he complains the state failed to produce. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

However, appellate defense counsel merely asserts that counsel’s failure to ask for a continuance compounded the alleged error regarding the transcript. Without presenting any evidence that the defendant was actually harmed by counsel not asking for a continuance, which in this case would 1^require a showing that the guilty plea used for the prior felony was defective, or indeed, whether the failure to ask for a continuance constituted an error by counsel, we will not engage in a Sixth Amendment “right to effective counsel” analysis on this apparent non-issue. Suffice it to say that in order to succeed in an ineffective assistance of counsel claim, the defendant must show both that counsel’s performance was deficient and that he was actually prejudiced before relief will be granted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Merely asserting that it was an error for failing to ask for a continuance without showing that there were valid grounds to ask for a continuance in this context does not suffice.

By his next assignment of error, the defendant complains that the fingerprint evidence introduced into evidence by the state to prove that the defendant in the instant third felony offender proceeding to identify the defendant in the two prior felony convictions was insufficient because the state’s expert, Lieutenant McDonnell, based his opinion on his visual observation and comparison of the fingerprints. The defense complains that McDonnell took no measurements of the prints, nor did he make any overlays. The defendant contends that simple eye examination, without more, should be held to be insufficient as a matter of law.

Our review of the record indicates that Lieutenant McDonnell was accepted as an expert in fingerprint comparison and analysis at the habitual offender hearing, with no objection from the defense. For McDonnell’s review and examination, the state introduced two separate bills of misinformation for the defendant that contained a fingerprint sheet for each bill and certified copies of the minutes for the respective cases. Lieutenant McDonnell compared the fingerprints he took of the defendant on the day of the hearing with the fingerprint sheets introduced into evidence, and he concluded based upon his observation of the prints that the same person gave each set of fingerprints, which he determined to be those of the defendant.

The Louisiana Supreme Court has repeatedly held that La. R.S. 15:529(F) does not require the state to use a specific type of evidence to carry its burden at a habitual offender hearing and that prior convictions may be proved by competent evidence. State v. Lindsey, 1999-3302 (La.10/17/00), 770 So.2d 339. When proving at a habitual offender hearing that a defendant is the same person convicted in the earlier proffered predicate offenses, the state may accomplish this through different means, including the testimony of witnesses, expert testimony as to the fingerprints of the accused when compared to those in the prison record introduced or by photographs contained in the duly authenticated record. State v. Winslow, 45,414 (La.App. 2 Cir. 12/15/10), 55 So.3d 910.

We have no reason to believe that a qualified expert in fingerprint identification cannot identify fingerprints by visual observation, nor has the defendant produced any reasons to show that Lieutenant McDonnell could not make such identification. Accordingly, we conclude that the state established by competent evidence that is legally sufficient to support defendant’s adjudication as a third-felony habitual offender. State v. O’Neal, supra.

This assignment of error is therefore without merit.

In his third assignment of error, the defendant contends that he is entitled to reversal of his conviction because he was prejudiced by the lack of a videotape of his arrest at trial. Specifically, the defense argues that the trial court abused its discretion when it allowed Agent Rosado to testify about defendant’s arrest without the videotape of the defendant’s arrest. Defense further argues that the destruction of the videotape was a spoliation of evidence, and therefore warrants a reversal of defendant’s conviction.

The state argues that the state’s witnesses adequately explained how the tape was mistakenly destroyed; thus, spoliation of evidence is not applicable.

The theory of spoliation of the evidence refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Lewis v. Albertson’s, Inc., 41,234 (La.App. 2 Cir. 6/28/06), 953 So.2d 771. Spoliation creates a presumption that the evidence was destroyed because it would have been detrimental to one’s case. Lewis v. Albertson’s, Inc., supra. However, the presumption of spoliation is not applicable when failure to produce the evidence is adequately explained. Lewis v. Albertson’s, Inc., supra.

Our review of the record discloses that the Assistant District Attorney, Jason Brown, requested a copy of the video from the Shreveport Police Department for discovery purposes. The SPD responded with a letter stating that, although a video of the arrest was actually made, the two | ^arresting officers did not mark them to be saved. If the video footage is not designated by the officers to be saved within 65 days, it is destroyed. In this instance, the officers testified that the system was newly installed in their police unit, and they were unaware of the procedure and deadline regarding preservation of the video of the arrest, and thus failed to request that the video be saved.

We conclude that Agent Rosado as well as Officer Edwards adequately explained how the video footage was destroyed, i.e., it was a new system and procedures were not in place to ensure that evidence on a videotape was maintained. Further, the state did not have an opportunity to view the videotape to know whether it was helpful or hurtful to its case. Under these circumstances, we conclude that the concept of spoliation of evidence does not apply.

This assignment of error lacks merit.

Defendant also contends that he is entitled to a reversal of his conviction because he was prejudiced by the “surprise witness” expert testimony of Agent Carl Townley. The state failed to disclose Townley as an expert witness in discovery. The defense argues that the trial court abused its discretion when it allowed Agent Townley to testify over its strenuous objection. The defense further argues that allowing Townley to testify prejudiced the defendant.

A defendant has the right, upon motion, to inspect and copy reports of scientific tests made in connection with the case that are in the possession of the district attorney and intended for use at trial. La. C. Cr. P. art. 719. | ^However, the state has no obligation to disclose information it does not possess. State v. Powell, 598 So.2d 454 (La.App. 2 Cir.1992), writ denied, 605 So.2d 1089 (La.1992). The state has a continuing duty to disclose additional evidence which it discovers or decides to use at trial. La. C. Cr. P. art. 729.3. Nondisclosure does not warrant automatic reversal, but where the defendant is lulled into misapprehension of the strength of the state’s case as a result of nondisclosure, the defendant is entitled to reversal. State v. Wilson, 27,889 (La.App. 2 Cir. 4/8/96), 672 So.2d 448, citing State v. Strickland, 398 So.2d 1062 (La.1981). The effects of a discovery violation may be remedied by effective cross-examination. State v. Powell, supra.

The state’s failure to comply with discovery will not automatically command a reversal. The defendant must show prejudice in order for his conviction to be reversed. State v. Stewart, 45,333 (La. App. 2 Cir. 8/11/10), 46 So.3d 714.

On the morning of trial, the state informed the defense that Agent Townley was expected to testify as to the weight of the narcotics and the defendant’s intent to distribute the narcotics. In its pretrial motions, the defense requested discovery which asked for all experts. Because the state’s response to discovery did not provide the defense with any reports by Townley or even his name, the defense objected. The state argued that they did, in fact, comply with the discovery rules because Townley did not provide a report.

[ 2()After argument by counsel, the court allowed Townley to testify. Townley testified that, in his expert opinion, the quantity coupled with the variety of narcotics (crack cocaine, powder cocaine, ecstasy and marijuana), the presence of a gun and large sum of cash, the defendant was a distributor of drugs rather than an addict. Defense counsel cross-examined Townley extensively on whether the amount of drugs and the variations of the drugs would indicate that the defendant was an addict of drugs rather than a distributor.

Prior to Townley testifying, Agent Rosa-do testified that, in his experience, he has known only drug dealers to carry large sums of money and the indicated amount of drugs. He further testified that “it was unheard of’ for an addict to have the specified amount of money and drugs on his person. We conclude, therefore, that although the state failed to comply with the discovery rules, such error, if any, was harmless in this case because of substantially similar testimony of Agent Rosado. The defendant was not “lulled into misapprehension of the strength of the state’s case” because of the state’s nondisclosure; therefore, the defendant is not entitled to a reversal. State v. Strickland, supra; State v. Stewart, supra.

This assignment of error is therefore without merit.

Sentencing

By his sixth and final assignment of error, the defendant contends that he was erroneously sentenced to 80 years imprisonment. The defendant argues that the aggregate sentence of 80 years is excessive, and the court erred in sentencing the defendant without the benefit of parole in violation 121of La. R.S. 15:529.1(G).

First, we will dispose of the second aspect of this assignment regarding parole eligibility. La. R.S. 15:529.1(G), which was added by Acts 1987, No. 774, states that any sentence imposed under the habitual offender statute “shall be at hard labor without benefit of probation or suspension of sentence.” The penalty increase provided by the habitual offender statute is computed by referring to the underlying offense statute. Conditions may be imposed in addition to those provided for in La. R.S. 15:529.1(G), if those additional conditions are provided in the referenced statute. La. R.S. 15:529.1(G) simply limits the judge’s discretion to suspend or probate a sentence imposed upon an habitual offender. State v. Richard, 550 So.2d 300 (La.App. 2 Cir.1989). The statute does not require the court to state that the defendant is eligible or not eligible for parole since this is determined by referring to the underlying offense.

However, in this case, any discussion of La. R.S. 15:529.1(G) regarding the defendant’s eligibility for parole under the predicate offense is rendered moot by La. R.S. 15:574.4 regarding parole eligibility. Under subsection (A)(1) of this statute, “[a] person convicted of a third or subsequent felony offense shall not be eligible for parole.” Accordingly, this aspect of the assignment of error is without merit.

The defendant was sentenced on March 19, 2009. After sentencing, the defendant filed a motion to reconsider sentence in which he alleged that[2pthe sentences were excessive and not in the interests of justice because the defendant had only two prior convictions, neither of which were crimes of violence. A hearing was set for May 5, 2009; however, it was reset for May 26, 2009. The court minutes reflect that the matter was taken up on May 27, 2009, and neither the defendant, nor defense counsel, were present, whereupon the court denied the motion.

At sentencing on March 19, 2009, the court denied the defendant’s motions for post verdict judgment of acquittal and motion for new trial. The court immediately proceeded to impose sentences for the three instant convictions without obtaining a waiver from defense counsel of the 24-hour delay in sentencing required by La. C. Cr. P. art. 873, which provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in the article or pleads guilty, sentence may be imposed immediately. (Emphasis supplied).

In recent jurisprudence the failure to wait the mandatory twenty-four hours after the denial of a motion for new trial or a motion in arrest of judgment, before imposition of sentence, has been held to be an error patent but harmless when no prejudice was shown. State v. White, 404 So.2d 1202 (La.1981); State v. Moossy, 40,566 (La. App. 2 Cir. 3/10/06), 924 So.2d 485. Even when assigned as error, courts have required a showing of some actual prejudice before remanding for resentencing. State v. Colvin, 452 So.2d 1214 (La.App. 2 Cir. 1984), writ denied, 457 So.2d 1199 (La.1984). Because the defendant has not shown that he was prejudiced by the court’s failure to observe the 24-hour delay in sentencing, we must conclude | gathat it was harmless error that does not require that we vacate the sentence.

We now consider the assertion that the sentence imposed by the trial court is excessive. The test imposed by the reviewing court in determining the ex-cessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641. The articulation of a factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2 Cir. 4/02/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2 Cir.), writ denied, 521 So.2d 1143 (1988).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La. App. 2 Cir. 3/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La. App. 2 Cir. 2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. Whether the sentence ^imposed is too severe depends on the circumstances of the ease and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2 Cir. 4/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

In this instance, the sentencing court did not articulate a single factor or consideration under La. C. Cr. P. art. 894.1 when it imposed sentences on the defendant. The court conferred with the prosecutor that as a third felony offender, the sentencing range was “20 to 60 on each count,” to which the district attorney agreed, adding that the sentences could run either concurrently or consecutively. After some discussion by the court regarding whether it could enhance all three sentences for the three instant convictions, the court concluded that “logically” it could. Prior to ^imposing sentence, the court simply stated that “I have looked at this.” “I’ve looked at the record of Mr. Bobo.”

The court then sentenced the defendant to 25 years at hard labor for possession with intent to distribute marijuana, 25 years at hard labor for possession with intent to distribute MDMA or ecstasy, and 30 years at hard labor for possession with intent to distribute cocaine. The court ordered that “each sentence will run consecutive with the other sentence,” without stating any reasons to justify imposing consecutive sentences rather than concurrent sentences even though all three convictions arose out of the same transaction.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment “shall be served concuirently unless the court expressly directs that some or all be served consecutively.” La. C. Cr. P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App. 2 Cir. 11/01/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App. 2 Cir. 4/05/00), 756 So.2d 1218, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010.

However, the jurisprudence requires that when consecutive sentences are imposed, the court “shall state the factors considered and its reasons for |gr,the consecutive terms.” State v. Green, 614 So.2d 758 (La.App. 2 Cir.1993). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2 Cir. 1992), writ denied, 612 So.2d 55 (La.1993); State v. Thompson, 543 So.2d 1077 (La. App. 2 Cir.), writ denied, 551 So.2d 1335 (1989).

In this instance, the court did not give any reasons for the individual sentences imposed, nor did it give reasons for ordering that the three sentences be served consecutively. The combination of these two errors forces a determination of whether remand is required in this case.

Ordinarily, where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, supra. There was virtually no compliance with La. C. Cr. P. art. 894.1 in this instance, however. Therefore, the question is whether, in light of this fact, the record provides an adequate factual basis for the sentences imposed.

The marijuana and ecstasy convictions have a sentencing range for each of from 5 to 30 years, and for the Schedule II conviction, the penalty range was from 2 to 30 years, with the first two years without the benefit of ^probation, parole or suspension of sentence. However, as a third-felony offender, the enhanced penalties for each conviction is “not less than two-thirds of the longest possible sentence and not more than twice the longest possible sentence.” La. R.S. 15:529.1(A)(2)(b)(3)(a). Therefore, the sentencing range for each conviction was 20 to 60 years.

We conclude, however, that the combination of the court’s failure to articulate even a single factor from the sentencing guidelines under La. C. Cr. P. art 894.1 in tailoring the sentences imposed on this defendant, which might have also justified ordering consecutive sentences, and the court’s failure to give any reasons to justify imposing consecutive rather than concurrent sentences, on this record, compels us to vacate the sentences and remand for resentencing.

We have repeatedly stated in prior opinions that the purpose of requiring the sentencing judge to articulate the particular facts and considerations that he considered in imposing sentence is two-fold. First, it ensures that the sentence is individualized. State v. Murdock, 416 So.2d 103 (La.1982); State v. Logwood, 37,178 (La.App. 2 Cir. 5/14/03), 847 So.2d 115. Second, it gives the reviewing court an actual indication of whether the sentencing judge adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Forshee, 395 So.2d 742 (La.1981); State v. Logwood, supra. This is particularly helpful in determining whether the sentence imposed is excessive. State v. Freeman, 474 So.2d 1035 (La.App. 3 Cir.1985).

For these reasons, we vacate the sentences imposed and remand this case to the trial court for resentencing consistent with the statutory andj^jurisprudential requirements discussed in this opinion.

CONCLUSION

For the foregoing reasons, the convictions of the defendant are affirmed. The sentence of the defendant is vacated, and the case is remanded to the trial court for resentencing.

CONVICTIONS AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

      . The panel in State v. O’Neal, supra, held that there was no question that the state proved that the defendant was the same person who pled guilty in the two 1993 felonies. The state produced independent proof of the defendant’s prior convictions, including the original bills of information and certified copies of the minutes in the prior convictions. Expert fingerprint comparison testimony identified the defendant’s fingerprints, taken at the hearing, as the same fingerprints on the two bills of information in the two earlier proceedings. Thus, the sole issue presented was whether the state proved that the 1993 possession of cocaine guilty plea was made with an articulated waiver of the defendant's Boykin rights.

      . Subsection (A)(2) provides that, notwithstanding the provisions of subsection (A)(1), a person sentenced to a term of 30 years or more with or without benefit of parole shall be eligible for parole consideration upon serving at least 20 years of imprisonment in actual custody and upon reaching the age of forty-five.

      . The supreme court held in State v. Shaw, 2006-2467 (La.11/27/07), 969 So.2d 1233, that all sentences for convictions on the same date for a single course of criminal conduct are subject to enhancement under the Habitual Offender Law, overruling State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991). However, Shaw did not involve a consecutive sentence. Therefore the court did not consider any reason under Article 883 that would allow for the further enhancement via consecutive sentences.

      . We note that the purpose of the Habitual Offender law is to deter and punish repeat offenders. State v. Henry, 42,416 (La.App. 2 Cir. 9/19/07), 966 So.2d 692, writ denied 2007-2227 (La.8/29/08), 989 So.2d 95. Thus, the defendant’s criminal history and the risk of danger posed to the public indicated by that history are the concerns for the enhancement of the sentences for which the Habitual Offender law is aimed. On the other hand, recidivism is only one of the factors considered when imposing consecutive sentences for multiple offenses arising out of a single course of conduct. See note 5, infra.

      . Among the factors to be considered are the defendant's criminal history, State v. Ortego, 382 So.2d 921 (La.1980); State v. Jacobs, 493 So.2d 766 (La.App. 2 Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2 Cir.), writ denied, 496 So.2d 355 (1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4 Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La. App. 1 Cir.), writ denied, 435 So.2d 433 (1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); defendant's apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La.App. 4 Cir.1987); and the potential for defendant's rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983), State v. Lighten, 516 So.2d 1266 (La.App. 2 Cir.1987). In each of these cases, one or more of the above factors was noted as justification for the imposition of consecutive sentences.