author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Terrell J. SUGGS.
    No. 11-KA-64.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Terrell J. Suggs, In Proper Person, Jackson, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Chief Judge.

| gDefendant/appellant, Terrell J. Suggs (“Suggs”), appeals his conviction of cocaine distribution within 1000 feet of a playground in violation of La. R.S. 40:981.3 and his adjudication as a third felony offender. Suggs also appeals his conviction on the multiple offender adjudication.

On May 20, 2009, the Jefferson Parish District Attorney filed a bill of information charging Suggs with distribution of cocaine within 1000 feet of a playground. Suggs was arraigned on the charge and pled not guilty. On September 3, 2009, Suggs’ motion to suppress identification was denied after a hearing. Subsequently, Suggs filed a motion for psychiatric examination. A sanity hearing was held on December 16, 2009, after which the trial judge found Suggs competent to stand trial. On that same date, the trial judge granted defendant’s pro se motion for speedy trial.

The case was tried before a twelve-person jury that found Suggs guilty as charged. In due course, the trial judge sentenced Suggs to imprisonment in the Department of Corrections for thirty years, with the first two years to be served without benefit of probation, parole, or suspension of sentence. On that same day, the State filed a multiple bill alleging that Suggs was a fourth felony offender, an | ¡¡allegation which Suggs denied. A multiple bill hearing was then held after which Suggs was adjudicated a third felony offender.

The trial judge vacated the original sentence and re-sentenced Suggs under the multiple bill statute to imprisonment in the Department of Corrections for forty years with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence, and the remainder of the sentence to be served without benefit of probation or suspension of sentence. Suggs filed a timely appeal motion that was granted by the trial court.

FACTS

On March 13, 2009, Joseph Gueldner, an undercover agent with the Jefferson Parish Sheriffs Office (“JPSO”), went to the area of Starrett and Newton Streets near Jesse Owens Playground in Jefferson Parish, a high crime area, in an attempt to purchase narcotics. He was driving an unmarked vehicle that contained audio and video equipment to record any narcotics transactions that occurred, and his actions were monitored by other officers who established surveillance in the area. Agent Gueldner successfully purchased $80 worth of crack cocaine from an individual, later identified as Suggs, on Starrett Street within 1000 feet of a playground that was marked as a “drug-free zone.” He conducted a field test on the substance Suggs sold to him, and it was positive for cocaine. The transaction was captured on videotape and shown to the jury at trial.

After obtaining a general description of the suspect, Agent Lisa Calcagno and other surveillance agents drove around for approximately an hour looking for a subject fitting the description. They subsequently located Suggs, who fit the description of the suspect, right across the street from the purchase area. After speaking with Suggs, Agent Calcagno filled out a field interview card, which contained Suggs’ name, address, and physical description, and they photographed |4him. She also positively identified Suggs in court as the person she spoke to that day.

Agent Wally Davis subsequently prepared a photographic lineup and showed it to Agent Gueldner who positively identified Suggs as the individual who sold him narcotics on the day in question. Agent Gueldner also positively identified Suggs in court as the perpetrator. Raven Barrois, a JPSO forensic chemist who was accepted as an expert in the field of the analysis of controlled dangerous substances, testified that the substance in this case tested positive for cocaine.

LAW AND ANALYSIS

Both Suggs and his appeals counsel have filed assigned errors and filed briefs in this matter. Suggs assigns four errors. He asserts the evidence was insufficient to support the conviction, and the trial court erred in denying his motion to suppress the identification. In other assignments, Suggs alleges prosecutorial misconduct, ineffective assistance of counsel, and malicious prosecution.

Defense counsel asserts the sentence imposed was illegal and excessive, or in the alternative, trial counsel was ineffective. Defense counsel also requests that this Court conduct a review for errors patent on the face of the record.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

The evidence used to convict Terrell Suggs was insufficient.

| ¿DISCUSSION

Suggs argues that the evidence was insufficient to support his conviction. He contends that the videotape of the transaction does not show the perpetrator’s face; there was no evidence that he intended to distribute cocaine; the State failed to exclude the possibility that he was misidentified because of his shirt; the State did not negate every reasonable possibility of mis-identification; and there was no money found on him from the transaction an hour after it occurred.

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

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

| f,Suggs was convicted of distribution of cocaine within 1000 feet of a playground. At the time of the commission of the crime on March 13, 2009, La. R.S. 40:981.3(A)(1) provided that any person who violated a provision of R.S. 40:966 through 970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E of this Section.

Distribution of cocaine is prohibited by La. R.S. 40:967(A)(1). “School property” means all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the State is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. Positive identification by only one witness is sufficient to support a conviction.

At trial, the State presented evidence to show that Suggs distributed cocaine within 1000 feet of Jesse Owens playground. Agent Gueldner testified that he purchased cocaine from an individual, whom he later identified from a photographic lineup as Suggs, within 1000 feet of Jesse Owens playground. The |7agent also positively identified Suggs in court as the perpetrator. The videotape of the transaction was shown to the jury at trial. Keith Davillier, an employee of the Jefferson Parish recreation department, testified that Jefferson Parish owned Jesse Owens playground and that Jesse Owens playground was used by neighborhood children and local schools for sports.

After considering the credibility of the witnesses and weighing the evidence, the jury obviously accepted the testimony of the State’s witnesses and the identification of Suggs as the perpetrator even though the videotape did not show the perpetrator’s face and no prerecorded money was found on him.

Suggs contends that he was stopped by Agent Calcagno and subsequently misidentified solely because he was wearing the same black and white colored shirt as the perpetrator. However, in the videotape, Agent Gueldner informed the other officers over the radio, not only that the perpetrator was wearing a black T-shirt with white sleeves, but also that the perpetrator was a black male weighing 160 to 185 pounds, approximately 5'11" to 6'2" tall, 30 to 40 years old, and had a little facial hair. Agent Gueldner also informed the other officers over the radio of Suggs’ location, i.e., that he was walking toward D and D Grocery Store on Starrett. Moreover, Agent Calcagno testified that they tried to locate the seller based on the description of what clothes he was wearing and “everything else.” Therefore, Suggs’ contention that he was stopped and misidentified only because of a clothing description is without merit.

Additionally, the credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal.

laBased on the foregoing, we find that the evidence was sufficient for the jury to find that the State met its burden of proving the essential elements of the crime, including the perpetrator’s identity, beyond a reasonable doubt. Accordingly, we find no merit in this assignment.

Because we find no merit in Suggs’ insufficiency of evidence claim, we will now review other trial errors assigned. The first assignment in defense counsel’s brief is that the trial court imposed an illegal and excessive sentence. In that assignment, it is argued that the sentence is constitutionally excessive. Counsel contends that the imposition of a forty-year enhanced sentence without particularized reasons under La.C.Cr.P. art. 894.1, and unsupported by the record, requires that the sentence be vacated and remanded to the trial court for reconsideration. Counsel notes that Suggs was offered a fifteen-year sentence prior to trial and that it was impossible to determine from the record what justification the trial judge used to increase it to forty years. She asserts that there is nothing in the record to support such a harsh sentence considering that Suggs was employed and turning his life around, had obtained a G.E.D., and planned to attend barber school.

Counsel also argues that Suggs was not given fifteen days to file objections to the multiple bill, contrary to the dictates of La. R.S. 15:529.1. Finally, counsel contends that she cannot ascertain from the record whether there was adequate proof of Suggs’ prior convictions. The State responds that Suggs has not shown that his sentence is constitutionally excessive given his particular circumstances.

IgThe record shows that Suggs did not file a written motion to reconsider sentence in accordance with La.C.Cr.P. art. 881.1, nor did he object to the sentence at the time it was imposed. Therefore, he is only entitled to a bare review for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts.

Defendant was convicted of distribution of cocaine within 1000 feet of a playground in violation of La. R.S. 40:981.3. Whoever violates a provision of this Section shall be punished by the imposition of the maximum fíne and be [inimprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970. Distribution of cocaine is a violation of La. R.S. 40:967, which provides for a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years to be served without benefit of parole, probation, or suspension of sentence. Therefore, Suggs was exposed to a sentencing range of not more than forty-five years on the underlying conviction. He was sentenced to thirty years of imprisonment.

The State then filed a multiple bill alleging Suggs to be a third felony offender with two predicate convictions of possession of cocaine. La. R.S. 15:529.1(A)(l)(b)(i) provides that if the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. Therefore, as a third felony offender, Suggs was exposed to a sentencing range of thirty to ninety years of imprisonment. The record reflects that, after Suggs was found to be a third felony offender, his original sentence was vacated, and he was re-sentenced under the multiple bill statute to forty years of imprisonment. We do not find this sentence to be constitutionally excessive.

Defense counsel makes procedural objections to the multiple bill hearing. She indicates that the trial court erred by not giving him fifteen days to file objections to the multiple bill, contrary to the dictates of La. R.S. 15:529.1. At the multiple bill hearing on February 11, 2010, defense counsel advised the trial judge | nthat she had reviewed the multiple bill with Suggs and that she had explained the three convictions the State was attempting to use to multiple bill him. Defense counsel then denied the allegations of the multiple bill. Suggs proceeded to the hearing immediately after he was arraigned on the multiple bill without objecting thereto. Any irregularity with arraignment is waived if the defendant proceeds to trial without such an objection. Furthermore, Suggs waived review of this error because he did not contemporaneously object to it. Suggs does not allege any particular objections he was not able to raise because of the failure to allow him fifteen days to respond. We find no merit in this argument.

In the second procedural objection, defense counsel questions the sufficiency of proof on the multiple bill.

To prove a defendant is an habitual offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was convicted of the prior felonies. The latter can be established through the use of expert testimony that the defendant’s fingerprints match those from the prior convictions. When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status and the defendant denies the habitual offender bill, it is initially the State’s burden to prove 1) the existence of the prior guilty pleas, and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such a | ^showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a “perfect” transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived, his right to trial by jury, his privilege against self-incrimination, and his right of confrontation.

If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.”

In the matter before us, the State alleged in the multiple bill that Suggs had three prior felony convictions: 1) possession of cocaine (La. R.S. 40:967(C)) in 2002 in case number 02-1917 in Jefferson Parish; 2) possession of cocaine (La. R.S. 40:967(0) in 2004 in case number 03^4292 in Jefferson Parish; and 3) second offense possession of marijuana (La. R.S. 40:966(0) in 2010 in case number 08-6038 in Jefferson Parish. Evidence of the existence of each guilty plea conviction and the fact that Suggs was represented by counsel was introduced into evidence without objection.

The State also met its burden of proving identity at the multiple bill hearing. The State introduced a card containing fingerprints taken from Suggs in court that day and certified copies of the three prior convictions containing fingerprints. The State offered the testimony of Aischa Prudhomme, a latent fingerprint analyst with the Jefferson Parish Sheriffs Office, to the effect that the fingerprints on the card | ismatched those introduced with the submitted proof of the three prior guilty plea convictions offered in support of the multiple bill.

Our review of the record shows that Suggs was not advised of his multiple offender rights prior to the multiple bill hearing. La. R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the information, his right to a hearing, and his right to remain silent. The failure of the trial court to advise a defendant of his right to a trial and to remain silent is harmless error when the multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant. Suggs denied the allegations of the multiple bill, and the State presented competent evidence at the hearing to establish his multiple offender status. Therefore, we find the trial court’s failure to advise Suggs of the specific allegations against him and of his right to be tried and to remain silent was harmless error.

Once the State met its initial burden, the burden shifted to Suggs to establish an infringement of his rights or a procedural irregularity in the taking of the challenged plea. However, Suggs did not establish an infringement of his rights or a procedural irregularity in the taking of the pleas. Therefore, the burden of proving the constitutionality of the plea did not shift back to the State. Following Ms. Prudhomme’s testimony, an unrecorded bench conference was held, after which the clerk crossed out case number 08-6038 on the multiple bill as a predicate conviction. The trial judge then found Suggs to be a third felony offender.

After reviewing the foregoing law and the evidence, we find that the trial judge did not err by finding defendant to be a third felony offender.

li4In the alternative, defense counsel argues Suggs had ineffective assistance at trial because trial counsel raised no objection when the trial court began the multiple bill hearing immediately after the plea of not guilty was entered to the multiple bill. Further, it is asserted that trial counsel was ineffective for the failure to object to the enhanced sentence and for not filing a motion to reconsider the sentence.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington. Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than On direct appeal, so as to afford the parties an adequate record for review. However, when, as here, the record contains sufficient evidence to rule on the merits of the claim | ¡¡¡and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy.

In response to defense counsel’s assertions regarding ineffective assistance of counsel, the State asserts that the argument presented by counsel lacks any particular objections that Suggs was not able to raise by proceeding straight to the multiple bill hearing. Therefore, the State contends that there is no proof of the second prong of Strickland, i.e., that Suggs was prejudiced so as not to have received a fair hearing. With respect to the excessive sentence claim, the State responds that this Court has reviewed sentences for constitutional excessiveness even when a defendant has failed to file a motion to reconsider sentence and/or to state a general objection. Therefore, the State argues that Suggs has not been prejudiced by his trial counsel’s failure to object to the sentence or to file a motion to reconsider sentence.

We find the State’s argument convincing given the applicable jurisprudence. This assignment is without merit.

Defense counsel also asserts the trial court vacated the incorrect sentence before imposing sentence on the multiple bill. A review of the transcript and minute entry disproves that assertion.

In brief to this Court, Suggs assigns four additional errors not previously discussed in this opinion. Suggs argues two motions to suppress identity should have been granted. Suggs contests the use of the photo lineup in the identification process. He argues that his photo was taken without his permission during an illegal stop. Suggs also argues the officer mistakenly identified him as the individual who sold the drugs.

116Prior to trial, Suggs filed two motions to suppress the identification. In those motions, he argued that the identification evidence was illegally and unlawfully obtained, and that the identification procedure was so suggestive that it tainted the identification and led to mistaken identification.

Agent Wally Davis testified at the suppression hearing that he prepared a photographic lineup by obtaining the suspect’s name, retrieving five other “AFIS” pictures of individuals who looked similar to the suspect, and putting them together. He testified that afterward he showed the photographic lineup to Agent Gueldner, who positively identified subject number three. On cross-examination, Agent Davis corrected himself and stated that Agent Gueldner had positively identified subject number five, the photograph he signed, and not subject number three. Agent Davis explained that, although he might have previously said number three, he did not look at the number, but he meant the agent positively identified the picture that was signed. Agent Davis further testified that Agent Gueldner put his initials (SC for Sammy Curtis, his undercover name) next to the photographs that were not the suspect. Agent Davis asserted that he did not threaten, force, or coerce Agent Gueld-ner into selecting Suggs’ picture.

There were no arguments by counsel following Agent Davis’ testimony at the suppression hearing. After listening to the testimony, the trial judge denied the motion, stating “there were clearly no constitutional violations in connection with the lineup, or the identification.”

Suggs did not argue in the trial court that his detention for a field interview was not proper, that he did not give his consent to having his picture taken, that the agent did not advise him of the reason for the detention or of his Miranda rights, or that his detention was a custodial interrogation. On appeal, a defendant is |17limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal. As such, we find Suggs is precluded from now raising those issues on appeal. However, in his written motions to suppress identification, Suggs did raise the issue that the identification should be suppressed because it was suggestive and unreliable. Therefore, those claims are properly before this Court.

The trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. To determine whether the trial court’s denial of a motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial.

A defendant challenging an identification procedure has the burden of proving the identification was suggestive and there was a substantial likelihood of mis-identification as a result of the identification process. An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the accused. Even if an identification procedure is suggestive, it is the likelihood of misidentification, not the mere existence of suggestiveness, which violates due process.

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Factors to consider in assessing the reliability of an identification 1^include: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.

After reviewing the photographic lineup, we find that it was not suggestive. The lineup shows that all six African-American males had similar hairstyles, facial hair, and facial features. The lineup also shows that all of the men wore white T-shirts, and the backgrounds of the photographs were similar. The lineup did not unduly focus attention on Suggs.

Suggs argues that the photographic lineup was unduly suggestive in that the agent only identified him because his signature was beneath his picture. However, the testimony at the suppression hearing indicates that the agent signed the lineup after he viewed it, and not before. Suggs also argues that the agent only gave a general description of the suspect and provided no information about the suspect’s age or facial features and that he was only accused of the crime because he was wearing clothing similar to that worn by the suspect. We have already considered and dismissed those arguments in our discussion on the sufficiency of evidence.

Suggs contends that the agent misidentified him during the suppression hearing when the agent said that Suggs’ picture was in the third position when, in fact, it was in the fifth position. However, the agent explained during cross-examination that he was mistaken about the number, and the agent had positively identified Suggs.

In light of the foregoing, we find the trial judge did not err by denying the motion to suppress identification.

119In his third assignment of error, Suggs asserts the district attorney used improper methods calculated to produce a wrongful conviction. Specifically, Suggs argues that the prosecutor told the jury the wrong standard of proof during jury selection and opening statements. He contends the prosecutor erroneously said that nobody could ever prove that a person is 100 percent guilty and that anything over 50 percent is guilt beyond a reasonable doubt. Suggs further contends that those statements were structural errors and that the State lowered the standard of proof. He also asserts that a “plain error statement” occurred when the prosecutor asked Agent Davis if he would expect to find marked money days after the sale, even though the prosecutor knew Suggs was searched for marked money an hour and nine minutes after the sale. Suggs admits his counsel did not object to these statements.

The record reflects that voir dire and the prosecutor’s opening statement were not transcribed. Therefore, Suggs’ allegations regarding the prosecutor’s remarks cannot be confirmed or denied, and it is unknown whether any objections were made to the prosecutor’s alleged remarks. However, the jury charges show that the jury was advised as follows with respect to reasonable doubt:

The defendant is presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt[.]
The burden is upon the state to prove the defendant’s guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or the lack of evidence. If you are not convinced of the guilt of the defendant beyond a reasonable doubt, then you must find him not guilty.
While the state must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense and is present when, after you have carefully considered all the evidence, you cannot say that you are firmly convinced of the truth of the charge.

In State v. Jefferson, this Court upheld an almost identical charge on reasonable doubt and found that it was not unconstitutional. Additionally, in the instant case, the jury was instructed that the statements and arguments made by the attorneys were not evidence, and that the opening statements and the closing arguments were not to be considered as evidence.

With respect to the “plain error statement,” the record reflects that, during the prosecutor’s redirect examination of Agent Davis, the following exchange occurred: “Q. Was he [defendant] arrested on the day of the incident? A. No, it was much later. Q. Would you expect to find any money on him if it was done days later? A. No.”

Defense counsel did not object to these questions and, therefore, he cannot raise this issue on appeal. Nevertheless, even if this issue is considered, there was nothing objectionable about these questions and responses. Defense counsel was simply eliciting testimony to show that the agent would not expect to find marked money on someone who was arrested days after a narcotics transaction. We find no merit in this assignment.

In his fourth assignment of error, Suggs makes a claim of malicious prosecution. The basis for this claim is the photograph taken of him that has already been the discussion of a prior assignment of error and has no merit.

In his final assignment, Suggs argues that his counsel was ineffective because she refused to investigate his alibi defense, and she refused to talk to his friends in order to present evidence of his good character to counter the impression that he was a drug dealer.

121 There is no way for this Court to know whether Suggs had an alibi, whether he told his counsel he had an alibi, and, if he did so, why his counsel did not present an alibi defense at trial. Accordingly, we find the appellate record is inadequate for this Court to address this claim, and that would be best addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing could be conducted.

This record has been reviewed for errors patent. Upon review we find it necessary to remand the matter to the trial court with orders for correction of the following matters:

Initially, we find the trial court failed to correctly advise Suggs of the time for filing post-conviction relief. The commitment shows that the trial judge advised Suggs he had “two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief.” However, the transcript reflects that, after subsequently imposing the enhanced sentence, the trial judge told Suggs he had “two years after the judgment of conviction of [sic] sentence to within which to file for post-conviction relief.” The transcript prevails. The trial judge’s advisory is incomplete because it did not advise Suggs that he had two years after judgment of conviction and sentence become final in which to seek post-conviction relief.

Therefore, we remand this matter to the trial court with instructions to inform Suggs of the prescriptive period set forth by La.C.Cr.P. art. 930.8, by sending written notice to him within ten days of the rendition of this opinion and toj^flle written proof in the district court record that Suggs has been given such notice.

Additionally, the commitment reflects that the trial judge ordered the enhanced sentence to run concurrently with any sentences Suggs was currently serving; however, the transcript is silent on this point. The transcript prevails. Therefore, it is ordered that the district court correct the commitment to delete the reference that the sentence should be served concurrently with any other sentence Suggs was currently serving. We further order the district court to direct the clerk of court to transmit the original of the corrected commitment to the officer in charge of the institution to which the Suggs has been sentenced.

For reasons set forth in this opinion, we affirm the convictions and sentence from which Suggs appeals. Further, we remand this matter to the trial court for actions in accordance with the instructions in this opinion.

AFFIRMED AND REMANDED WITH INSTRUCTIONS

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.

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

      . La. R.S. 15:438.

      . State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

      . La. R.S. 40:981.3(E).
      (1) Whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.
      (2) A sentence imposed for a violation of the provisions of this Section shall not be subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for a violation of a felony provision of R.S. 40:966 through 970 is not subject to parole, probation, or suspension of sentence.

      . La. 40:981.3(C)(2).

      . State v. Billard, 03-319 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1072, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739.

      . State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

      . State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . See, State v. Williams, 04-1016 (La.App. 5 Cir. 3/29/05), 901 So.2d 527, 529-32, writ denied, 05-1080 (La.12/9/05), 916 So.2d 1056.

      . Suggs also argues that the record does not show that the trial judge took cognizance of the sentencing criteria set forth in La.C.Cr.P. art. 894.1. Suggs did not raise this issue in the trial court. Therefore, he is precluded from raising this issue on appeal. State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, 796, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666.

      . State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.

      . State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4.

      . Id.

      . State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

      . State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.

      . State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

      . Id. at 656.

      . La. R.S. 40:981.3(E).

      . La. R.S. 40:981.3(E)(1); La. R.S. 40:967.

      . La. R.S. 40:967(C).

      . La. R.S. 15:529.1(A)(l)(b)(i); La. R.S. 40:981.3(E)(1); La. R.S. 40:967(B)(4)(b).

      . La.C.Cr.P. art. 555; State v. Lewis, 97-1244 (La.App. 3 Cir. 3/6/98), 728 So.2d 1, 16-17, writ denied, 98-977 (La.9/18/98), 724 So.2d 752.

      . La.C.Cr.P. art. 841; State v. Lewis, supra.

        . State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Thomas, 06-654 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, 07-0464 (La. 11/21/07), 967 So.2d 1153. The State must also prove that the prior convictions fall within the ten-year cleansing period prescribed by La. R.S. 15:529.1(C). State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1072, writ denied, 05-1381 (La. 1/13/06), 920 So.2d 233.

      . State v. Thomas, 06-654 at 7, 951 So.2d at 378.

      . State v. Shelton, 621 So.2d 769, 779-80 (La.1993).

      . State v. Shelton, 621 So.2d at 779-80.

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

      . State v. Shelton, supra, at 780.

      . State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 582.

      . Id. at 582-83.

      . State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599.

      . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63 (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064).

      . Id.

      . Id.

      . State v. Robertson, 08-297 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, writ denied, 08-2962 (La. 10/9/09), 18 So.3d 1279.

      . State v. Grimes, 09-2 (La.App. 5 Cir. 5/26/09), 16 So.3d 418, 426, writ denied, 09-1517 (La.3/12/10), 28 So.3d 1023.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594.

      . State v. Williams, 10-51 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 471, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330.

      . Id.

      . State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

      . State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

      . State v. Hurd, 05-258 (La.App. 5 Cir. 11/29/05), 917 So.2d 567, 570, writ denied, 06-1128 (La. 11/17/06), 942 So.2d 530, 570.

      . Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

      . Manson v. Brathwaite, 97 S.Ct. at 2253.

      . 03-820 (La.App. 5 Cir. 1/27/04), 866 So.2d 931, 941, writ denied, 04-727 (La. 9/24/04), 882 So.2d 1166.

      . La.C.Cr.P. art. 841.

      . State v. Robertson, supra.

      . See, La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Welland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 703, writ denied, 09-0374 (La. 11/6/09), 21 So.3d 301.

      . State v. Fazande, 05-901 (La.App. 5 Cir. 3/28/06), 927 So.2d 507, 513-14.

      . State v. Lynch, 441 So.2d at 734.

      . State v. Shannon, 04-1361 (La.App. 5 Cir. 4/26/05), 902 So.2d 519, 524.

      . State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terrence G. MUNSON.
    No. 11-KA-81.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Kenneth P. Bordelon, Jeffrey G. Lagarde, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Pefendant, Terrence Munson, appeals the denial of his motion to suppress the evidence. For the reasons that follow, we affirm.

Defendant was charged with one count each of possession with intent to distribute marijuana (count one), MDMA (count two), and cocaine (count three) in violation of La. R.S. 40:966(A) and 40:967(A). The State subsequently amended count two to possession with intent to distribute heroin. Defendant pled not guilty and filed a pretrial motion to suppress the evidence, which was denied after a hearing. He filed a writ application with this Court seeking review of that ruling, which was denied. State v. Munson, 09-1048 (La. App. 5 Cir. 1/5/10) (unpublished writ disposition).

Thereafter, on June 23, 2010, defendant proceeded to trial before a 12-person jury. The jury convicted him on each of the three counts of the responsive verdicts possession of marijuana, heroin and cocaine. The trial court sentenced defendant to concurrent sentences of six months in parish prison for the possession of marijuana conviction, four years at hard labor for the possession of heroin | .¡conviction, and five years at hard labor for the possession of cocaine conviction. The court noted the sentences on counts two and three were not subject to diminution for good behavior under La. R.S. 15:571.3(p) because they were felony convictions of a controlled dangerous substance.

The State filed a multiple offender bill of information based on count two, possession of heroin, alleging defendant to be a fourth felony offender. Pursuant to a plea agreement, defendant stipulated to the multiple bill. The trial court vacated defendant’s four-year sentence on count two and imposed an enhanced sentence of 20 years at hard labor without the benefit of probation or suspension of sentence which was to run concurrently with defendant’s other sentences.

Defendant appeals his convictions and sentences asserting as his sole assignment of error the trial court’s denial of his motion to suppress the evidence. He contends the affidavit in support of the search warrant was inadequate to establish probable cause that drugs would be found in the hotel room that was searched. Specifically, he maintains the probable cause affidavit contained nothing more than uncorroborated information from a confidential informant.

The sole witness to testify at the motion to suppress hearing was Detective Kevin Treigle of the Kenner Police Department. He testified he received a phone call from a paid confidential informant (Cl) at approximately 9:45 a.m. on April 22, 2009. The Cl advised that defendant was at the America’s Best hotel on Veterans Blvd. in room 330 and was in possession of a large amount of crack cocaine. Detective Trei-gle stated the Cl had been known to him or the department for a little over a year and a half, had been very reliable in the past, and had made approximately 20 cases. Based on the information given by the Cl, Detective Treigle instructed two other detectives to conduct surveillance of the hotel room. During this surveillance, the detectives observed defendant exit and enter the hotel room.

^Detective Treigle testified that based on all the information, he applied for a search warrant for the hotel room. However, he admitted there was no surveillance information contained in the application. He stated he started preparing the search warrant at approximately 9:50-9:55 a.m. and it took him about ten minutes to complete it. He then drove to First Parish Court, arriving at about 10:25 a.m., and presented the search warrant application to Judge George Giacobbe, who read and signed it.

A copy of the search warrant application was introduced into evidence. It revealed that Detective Treigle had been contacted by a very reliable Cl who advised that he/she had just purchased crack cocaine from defendant in room 330 at the America’s Best hotel on Veterans Blvd. The application also revealed the Cl advised he/she observed defendant “cutting” and packaging a large amount of crack cocaine inside the hotel room. According to the affidavit, the Cl had assisted Detective Treigle in numerous arrests and seizures of large amounts of crack cocaine and firearms in the past. The affidavit further indicated defendant’s criminal history included numerous arrests for distribution and possession of crack cocaine and marijuana and a conviction for possession of crack cocaine, for which he was recently released from prison.

During the suppression hearing, Detective Treigle testified he did not give Judge Giacobbe any additional information other than what was contained in the search warrant application. Thus, the judge was unaware of the surveillance that confirmed defendant’s presence at the hotel. Additionally, Detective Treigle stated the application did not include information that numerous arrests for narcotic sales and prostitution have occurred at the hotel.

lsAfter obtaining the search warrant, Detective Treigle assisted in its execution. A battering ram was used to access the hotel room and defendant was the sole occupant in the room. Among items recovered were defendant’s Louisiana identification card, one bag of off-white rocks, 15 bags of green vegetable matter, a bag of brown powder, a cell phone, $961.00, a box of foil, two boxes of plastic bags, a scale, and a box of Sleepinol.

In denying the motion to suppress, the trial court found “[t]he search warrant, the four corners, does speak for itself, it was signed by Judge Giacobbe, there was surveillance that was done on this warrant, there was a past history involving this police officer, and the surveillance revealed [defendant] going in and out, and there was [sic] numerous arrests that have made [sic] at this hotel.”

This Court denied defendant’s pretrial writ application stating, “[o]n the showing made, we find no reason to disturb the trial court’s ruling which denied realtor’s motion to suppress the evidence. Moreover, we note that relator has an adequate remedy on appeal in the event of a conviction.” State v. Munson, supra. While recognizing the denial of a supervisory writ application does not bar reconsideration of an issue on appeal and does not prevent the appellate panel from reaching a different conclusion on the issue, the State nonetheless urges this Court to give deference to our pretrial ruling because there is nothing in the subsequent trial record that shows the determination was patently erroneous and produced an unjust result. However, because we specifically noted defendant had an adequate remedy on appeal in our writ disposition, we will reconsider our prior ruling regarding the propriety of the trial court’s denial of the motion to suppress.

When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. La. C.Cr.P.6 art. 703(D); State v. Johnson, 08-265 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 599. The trial court’s decision to deny a motion to suppress is afforded great discretion and will not be set aside absent an abuse of that discretion. State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Lee, 976 So.2d at 122. The affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Probable cause for the issuance of a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Lee, 976 So.2d at 122. The determination of probable cause does not rest on an officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. Id.

The task of the reviewing court is to insure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). If the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, 969. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. Id.

We find the affidavit in this case sufficiently established the reliability and specific knowledge of the confidential informant so as to provide the issuing judge with a substantial basis for concluding probable cause existed. The affidavit shows the informant was reliable and had assisted the affiant in the past with numerous arrests and seizures of large amounts of crack cocaine. In the present case, the informant personally observed defendant “cutting” and packaging a large amount of crack cocaine inside a hotel room at America’s Best. Further, the informant stated he had purchased crack cocaine from defendant in the hotel room within the past two hours. This statement by the informant against his penal interest strengthens his credibility. United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971); State v. Ogden, 391 So.2d 434, 436 (La.1980).

This detailed information coupled with the affiant’s stated knowledge of defendant’s background, which includes numerous arrests for distribution and possession of cocaine and marijuana and a conviction for possession of cocaine, afforded a basis upon which a magistrate could reasonably issue a warrant.

Defendant contends the affidavit is nothing more than a “bare bones” assertion of reliability without any independent corroboration of the information through surveillance. However, surveillance “is unnecessary to establish probable cause,” and the “lack of corroboration for the informant does not invalidate the warrant, when the other details of the affidavit support a reasonable inference of reliability.” State v. Johnson, 404 So.2d 239, 244 (La.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).

\ .ERRORS PATENT

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

DECREE

For the foregoing reasons, we find no error in the trial court’s denial of defendant’s motion to suppress the evidence. Accordingly, defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED

      . The record reveals Sleepinol is used to cut heroin to increase its volume.


text:
    STATE of Louisiana v. Terrence J. JONES.
    No. 11-KA-87.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    Terrence Jones, In Proper Person, Cot-tonport, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

I ¡>This is defendant/appellant Terrence Jones’ (“Jones”) second appeal. In 1997, Jones was originally charged with one court of first degree murder, a violation of La. R.S. 14:30, and he pled not guilty. On February 3, 1998, Jones was arraigned a second time, and again he pled not guilty. Following numerous pre-trial motions, the State amended the bill of indictment on July 17, 2000, reducing the charge to second-degree murder under La. R.S. 14:30.1. The procedural history prior to his second trial is recounted in his first appeal. At that trial, Jones was found guilty as charged and that verdict was affirmed by this Court.

Thereafter, Jones was granted federal habeas relief, and the case was remanded for a new trial.

|sOn remand, on August 6, 2010, the indictment was again amended to one count of manslaughter, a violation of La. R.S. 14:31. On that same date, Jones pled guilty as charged to the amended bill of information. Pursuant to a plea agreement, he was sentenced to thirty-five years at hard labor, without benefits, and with credit for time served. After his motion to reconsider sentence was denied, this appeal was granted.

Because the conviction was obtained by a guilty plea, the details of the facts surrounding the arrest and charges are not contained in the record on appeal. At the time of the plea, the State provided the following statement: “DISTRICT ATTORNEY: If this matter had gone to trial the State would have proven beyond a reasonable doubt that on July 28, 1997 the defendant violated Louisiana Revised Statute, Title 14:31 in that he did commit manslaughter in the killing of Marty Martin (assumed spelling) in Jefferson Parish.”

Under the procedure set forth in State v. Benjamin and adopted by this Court in State v. Bradford, appointed appellate counsel has filed an Anders brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

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

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

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

In the present matter, Jones’ appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal.

^Counsel notes that Jones filed a Motion to Reconsider Sentence, but he received the exact sentence that he had bargained for in exchange for his guilty plea. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

Appellate counsel has filed a motion to withdraw as attorney of record, which states he has mailed Jones a copy of his brief. Additionally, this Court sent Jones a letter by certified mail informing him that an Anders brief had been filed and that he had until March 25, 2011 to file a pro se supplemental brief. Jones has filed a supplemental memorandum.

The State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case. The State contends that counsel has “cast an advocate’s eye” over the record and found no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm Jones’ conviction and sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief is filed, the appellate court reviews: 1) the bill of information/indictment to insure the defendant was properly charged, 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal, 3) all pleadings in the record, and 4) all transcripts to determine if any ruling provides an arguable basis for appeal.

Here, the amended bill of information properly charged Jones. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged, and it cites the statute violated. It also sufficiently identifies both Jones as | fiwell as the crime charged. As reflected by the minute entries and commitment, Jones appeared at his guilty plea and sentencing. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly.

If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. A defendant may be allowed appellate review if at the time of his guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Here, Jones entered an uneondi-tional plea such that all non-jurisdictional defects were waived.

The record shows that Jones was aware he was pleading guilty to one count of manslaughter. On the waiver of rights form and during the colloquy with the trial court, he was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, Jones initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial court, Jones indicated that he understood that he was waiving these rights. He further indicated that he had not been forced, coerced, or |7threatened to enter his guilty plea. Jones was also informed that his convictions could be used to enhance a penalty for any future conviction.

Jones was advised that he faced a maximum possible sentence of forty years at hard labor. During the colloquy, he was told that he would be sentenced to thirty-five years at hard labor, without benefits and with credit for time served. He was also advised that the State would not file a multiple offender bill of information. By signing the waiver of rights form, Jones also indicated that he understood the sentence he would receive for his plea of guilty to manslaughter.

Finally, we note that the sentence imposed falls within the sentencing range set forth in the respective statute and does not present any non-frivolous issues for appeal. Therefore, there are no non-frivolous issues that should have been raised on appeal relating to the guilty plea proceedings and the sentencing on the underlying conviction in this case.

In his first pro se assignment of error, Jones argues that the trial court erred in not ordering a pre-sentence investigation. La.C.Cr.P. art. 875(A)(1) provides, in relevant part, that “[i]f a defendant is convicted of a felony offense ... the court may order the Department of Public Safety and Corrections, division of probation and parole, to make a presen-tence investigation.” (Emphasis added). The use of the word “may” in this article reflects that ordering a presentence investigation is discretionary with the trial court. As noted by the Louisiana Supreme Court, the presentence investigation report (or “PSI”) is an aid to the court, not a right of the defendant, and the court is not required to order that the report be prepared. Furthermore, in the present case, no presentence investigation was requested and no objection to this was made at the sentencing hearing, prior to the time that Jones Rpled guilty and received his bargained-for sentence. Accordingly, we find no abuse of discretion on the part of the district court in not ordering a presentence investigation.

Encompassed within the above assignment of error is Jones’ argument that the sentence imposed was excessive. As provided by La.C.Cr.P. art. 881.2(A)(2), “[a] defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that a defendant is precluded from raising a claim of excessiveness on appeal when the imposed sentence is the product of a plea agreement. This assignment of error has no merit.

In his second pro se assignment of error, Jones contends that his sentence for manslaughter is excessive. This claim is also procedurally barred by La.C.Cr.P. art. 881.2 because the sentence was imposed pursuant to a plea agreement and Jones knew in advance what his sentence would be if he elected to plead guilty. Further, Jones’ sentence falls within the sentencing range proscribed by La. R.S. 14:31(B). This assignment of error is without merit.

We have reviewed the record for errors patent, and we find none that require correction. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm Jones’ conviction and sentence and grant appellate counsel’s motion to withdraw as attorney of record.

CONVICTION AFFIRMED; MOTION TO WITHDRAW GRANTED

      . State v. Jones, 02-908 (La.App. 5 Cir. 2/25/03), 841 So.2d 965, writ denied, 03-0895 (La.9/26/03), 854 So.2d 345.

      . Id.

      . Jones v. Cain, 601 F.Supp.2d 769, 808-09 (E.D.La.2009), aff'd, 600 F.3d 527, 542 (5th Cir.2010).

      . 573 So.2d 528, 530 (La.App. 4 Cir.1990).

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct, 1396, 18 L.Ed.2d 493 (1967) and see State v. Jyles, 96-2669, p. 3 (La. 12/12/97), 704 So.2d 241, 242 (per curiam).

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

      . State v. Jyles, supra.

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

      . Id.

      . State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171.

      . State v. Bradford, supra.

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

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

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

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

      . State v. Reed, 10-527 (La.App. 5 Cir. 2/15/11), 61 So.3d 74, writ denied, 11-0509 (La.9/30/11), 71 So.3d 280.

      . State v. Allen, 03-2156 (La.App. 4 Cir. 5/19/04), 876 So.2d 122, writ denied, 04-1704 (La. 11/19/04), 888 So.2d 194.

      . State v. Bell, 377 So.2d 275 (La. 1979).

        . State v. Jones, 05-840, p. 14 (La.App. 5 Cir. 3/28/06), 927 So.2d 514; State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171; State v. Guerra, 03-1071, p. 5 (La.App. 5 Cir. 12/30/03), 865 So.2d 154.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Karim J. FORD.
    No. 11-KA-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for PlaintiflyAppel-lee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Karim J. Ford, In Proper Person, Angie, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

12In this appeal, defendant, Karim J. Ford, challenges the validity of his guilty pleas, claiming that he was led to plead guilty based on his belief that he would be eligible for parole after serving two years of his sentence. For the reasons that follow, we affirm defendant’s original convictions and sentences, as well as the multiple offender determination on count two and the enhanced sentence imposed pursuant thereto. We remand the matter with instructions.

The Jefferson Parish District Attorney filed a bill of information charging defendant with possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1 (count one); possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967 A (count two); and possession of marijuana, second offense, in violation of LSA-R.S. 40:966 C (count three). At the arraignment, defendant pled not guilty; however, he subsequently withdrew those pleas, and after being advised of his constitutional rights and executing a waiver of rights form, he pled guilty as charged to all three counts. In accordance with the plea agreement, the trial court sentenced defendant, on count one, to fifteen years at hard | Jabor without benefit of parole, probation, or suspension of sentence; on count two, to fifteen years at hard labor, the first two years to be served without benefit of parole, probation, or suspension of sentence; and on count three, to five years at hard labor. The judge gave defendant credit for time served and ordered that all sentences run concurrently with one another.

With regard to count two, the State filed a multiple offender bill of information pursuant to the provisions of LSA-R.S. 15:529.1, alleging defendant to be a second felony offender. After defendant was advised of his rights and admitted to the allegations in the multiple bill, the trial court vacated the original sentence on count two, and sentenced defendant to fifteen years at hard labor. He ordered that the first two years be served without benefit of parole, probation, or suspension, and that the entire sentence be served without benefit of probation or suspension. The court also ordered the habitual offender sentence to run concurrently with all other sentences defendant was serving, giving defendant credit for time served. The trial court subsequently granted defendant an out-of-time appeal.

On appeal, defendant’s appointed appellate counsel has filed a brief which focuses on defendant’s parole eligibility. Defendant has also filed a pro se supplemental brief in which he alleges that trial counsel was ineffective in failing to reserve any issues for appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In his pro se brief, defendant further alleges that his guilty plea to the multiple offender bill of information was involuntary because it was based on his belief that he would be eligible for parole in two years. We will first address appointed counsel’s argument.

In his brief, appointed appellate counsel asserts that defendant’s sentence as a multiple offender is unclear as to his parole eligibility, and as such, the sentence should be vacated and the matter remanded to the trial court for resentencing. In 14the alternative, counsel requests that defendant be permitted to withdraw his guilty plea to the multiple offender bill.

After accepting defendant’s stipulation to the multiple bill, the trial court vacated the original sentence on count two and sentenced defendant, as a second felony offender, as follows:

With respect to the multiple bill filed, it is the sentence of this Court with respect to count two, that the Court is going to vacate the sentence of 15 years previously handed down, and now sentence you as a second offender under the provisions of Louisiana Revised Statute 15:529.1 on count two, and sentence you to 15 years at hard labor, the first two years are to be served without benefit of probation, parole or suspension of sentence.
Since you are being sentenced as a multiple offender, that sentence is served without benefit of probation or suspension of sentence. This sentence is concurrent with all the others that you are serving, and you are to be given credit for all time served.
I will state for the record, Mr. Ford, that it is the Court’s recommendation that you be allowed to serve this concurrent with any parole violation, but that is up to the parole board as to whether or not they are going to run it concurrent or consecutive. I will state for the record that it is my intention that you be allowed to serve it concurrently, but it is up to the parole board.

The minute entry/commitment from the multiple offender sentencing reflects that defendant’s enhanced sentence is to be served without benefit of probation or suspension, but makes no mention of parole eligibility with regard to the fifteen years.

We first note that the sentence imposed by the trial court, as reflected in the transcript, is a legal sentence imposed in accordance with statutory provisions. The underlying conviction that was enhanced in this matter was for possession with intent to distribute cocaine. The penalty provision for this offense, LSA-R.S. 40:967 B(4)(b), mandates, in pertinent part, imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years without benefit of parole, probation, or suspension. LSA-R.S. 15:529.1 G requires that the entire |sterm of the multiple offender sentence be imposed without benefit of probation or suspension of sentence.

The restrictions for parole eligibility are those called for in the reference statute. State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied, 09-2102 (La.4/5/10), 31 So.3d 357. Therefore, the trial court was authorized to impose the first two years of the multiple offender sentence without benefit of parole, and the entire sentence without benefit of probation or suspension. To the extent that the minute entry is inconsistent with the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the matter to the district court with instructions to correct the minute entry/commitment in accordance with the transcript to reflect that the first two years of the multiple offender sentence is to be served without benefit of parole, probation, or suspension of sentence, and the entirety of the sentence is to be served without benefit of probation or suspension. We also direct the clerk of court to transmit the amended minute entry to the officer in charge of the institution to which defendant has been sentenced as well as to the Department of Public Safety and Corrections General Counsel. LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

As a source of the confusion over his parole eligibility, defendant points to the court’s language in the sentencing transcript previously cited and claims that his parole eligibility was left up to the Department of Corrections. He specifically points to that portion of the transcript which states that “it is the Court’s recommendation that he be allowed to serve this sentence concurrent with any parole violation, but that is up to the parole board whether or not they are going to |firun it concurrent or consecutive.” This language is not related to the sentence imposed, but rather appears to stem from defendant’s question to the trial court as to whether he could violate his parole in open court. Thus, the only mention of the parole board’s discretion involves whether or not defendant would serve time for an unrelated parole violation in concurrence with or consecutively to the sentence under the multiple bill.

Thus, based on the foregoing discussion, we find no merit to counsel’s arguments relating to the uncertainty of defendant’s parole eligibility. The transcript is quite clear that with regard to the fifteen year multiple offender sentence, the first two years are to be served without benefit of parole, probation, or suspension, and the entirety of the sentence is to be served without benefit of probation or suspension. LSA-R.S. 40:967 B(4)(b) and LSA-R.S. 15:529.1 G.

Defendant has also filed his own brief raising two assignments or error. In the first argument presented, defendant alleges that trial counsel was ineffective in failing to preserve any pre-plea issues for appeal pursuant to State v. Crosby, supra.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show: 1) his attorney’s performance was deficient, and 2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 750, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754. The error is prejudicial if it is so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Allen, 06-788 at 10, 955 So.2d at 750. In order to show prejudice, the |7defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Allen, supra.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Cambre, 05-888 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 460, writ denied, 06-2121 (La.4/20/07), 954 So.2d 158. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under LSA-C.Cr.P. arts. 924-930.8; State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095, writ denied, 98-0673 (La.8/28/98), 723 So.2d 416.

Defendant argues that he received ineffective assistance of counsel because his attorney failed to preserve Crosby issues. He does not point to any specific adverse ruling that prejudiced him, and in fact, from the record before us, there does not appear to have been any pre-plea rulings by the trial court. Defendant merely makes a general allegation that trial counsel’s failure to preserve any issues for appeal prejudiced him because the outcome of the case would have been different if information had been ruled inadmissible. Since there does not appear to have been any adverse rulings upon which defendant’s counsel could base a Crosby plea, this claim alleging ineffectiveness of counsel is without merit.

In his second assigned error, defendant seeks to withdraw his guilty plea to the multiple offender bill of information, claiming that he was induced to enter the plea based on assurances that he would receive a sentence in which he would be eligible for parole after serving two years.

|RIf a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, once a defendant is sentenced, only those pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

We have reviewed the record in the instant case and find that there is no evidence to indicate that defendant’s guilty pleas, either to the original charges or to the multiple offender bill of information, were constitutionally infirm in any way. The record reflects that defendant was properly advised of his Boykin rights prior to entering his guilty pleas to the original bill of information. Specifically, the trial court advised defendant of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. In addition, the trial court informed defendant of the maximum penalty exposures for the offenses charged in the bill and further advised him of the actual sentences which would be imposed pursuant to his plea agreement with the State. The trial judge specifically advised defendant as follows:

The sentence as discussed between the Court and your attorney and the district attorney on the 95.1 would be 15 years at hard labor, to be served without benefit of probation, parole, or suspension of sentence.
With respect to count two, the possession with intent to district[sic] cocaine will be 15 years at hard labor, the first two years are to be | served without benefit of probation, parole or suspension of sentence; and count three, the second offense possession of marijuana, five years at hard labor, and all of those are to run concurrent.

During the colloquy, defendant acknowledged that he understood the possible penalties as well as the actual sentences that would be imposed. In addition, defendant signed a waiver of rights form indicating that he understood his rights as well as the consequences of his guilty pleas.

With regard to the multiple offender proceedings, defendant likewise executed a waiver of rights form which was signed by defendant, his attorney, and the trial judge. Prior to accepting defendant’s admission to the multiple bill, the trial court went over the rights form with defendant and made sure that defendant was aware of his right to a hearing and of his right to remain silent on the multiple bill. In addition, the trial court advised defendant of the possible sentencing range as well as the penalty that would be imposed. After going over the form with defendant and verifying that he signed the form, the trial court accepted defendant’s stipulation to the multiple offender bill.

Accordingly, based on our review of the record, we find that defendant’s guilty pleas to the original charges as well as the multiple bill were freely and voluntarily made after a proper advisal of the applicable rights. In addition, defendant was made aware at the time of the original guilty pleas of the availability of benefits on counts one and two. Contrary to defendant’s assertions, there is nothing in the record to indicate that defendant was promised that he would be eligible for parole after serving two years of his sentence. Moreover, this argument regarding defendant’s parole eligibility on count two is moot because defendant’s entire fifteen year sentence on count one, possession of a firearm by a convicted Imfelon, was imposed without benefit of probation, parole, or suspension as mandated by LSA-R.S. 14:95.1. In addition, LSA-R.S. 15:574.4 A(l) further restricts defendant’s parole eligibility. That provision provides, in part, that “upon conviction of a second felony offense, such person shall be eligible for parole consideration upon serving one-half of the sentence imposed.” Therefore, defendant’s arguments regarding the validity of his guilty plea are without merit.

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial court failed to impose a mandatory fine for count one, felon in possession of a firearm, as required by LSA-R.S. 14:95.1, and thus, imposed an illegally lenient sentence. LSA-R.S. 14:95.1(B) requires a fine of “not less than one thousand dollars nor more than five thousand dollars.” This Court has the authority to correct an illegally lenient sentence. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory.

When a defendant is sentenced pursuant to a guilty plea, this Court has declined to correct an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and that resulted in disposition of the case favorable to the defendant. State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, 242. In State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842, this Court, noting defendant’s indigent status, declined to correct an illegally lenient sentence where the trial court failed to impose a mandatory fine in a sentence that was part of a plea bargain.

|T1In the present case, it is noted that defendant is indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Since defendant’s sentence resulted from a guilty plea and the State did not object to the trial court’s failure to impose a fine as to count one, and defendant is indigent, we refrain from exercising our authority to correct the illegally lenient sentence.

Also, the record reveals a discrepancy between the minute entry/commitment and the transcript with regard to the concurrent nature of defendant’s sentences. The commitment reflects that defendant’s original sentences are to be served concurrently with any and all other sentences he is presently serving; however, the transcript indicates that with regard to the original sentences, the trial court ordered them to run concurrently with each other; however, he did not order the sentences to run concurrently with any other sentences defendant was presently serving. As noted previously, the transcript prevails. Therefore, we remand this case to the trial court with instructions to correct the minute entry/commitment to delete the reference relating to the original sentences that the sentences are to run concurrently with any other sentences defendant was presently serving. State v. Shannon, 04-1361 (La.App. 5 Cir. 4/26/05), 902 So.2d 519, 524.

Accordingly, for the reasons set forth herein, we affirm defendant’s original convictions and sentences as well as the multiple offender determination and the enhanced sentence imposed pursuant thereto. We remand the matter to the trial court with instructions to correct the minute entry/commitment.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . Under LSA-R.S. 15:301.1(A) and the rationale in State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, the restriction of benefits is self-activating. Therefore, while it was not necessary for this Court to order the correction of the minute entry/commitment, we do so to prevent any further confusion to defendant.

      . Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Ursin, 98-435 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248, 1249.

      . During the multiple offender proceedings, the trial court incorrectly told defendant that the maximum sentence he could receive was thirty years; however, the waiver of rights form properly advised defendant that he faced a maximum sentence of sixty years on the multiple bill. Defendant received the agreed to sentence of fifteen years.