author: KEATY, Judge.

text:
    STATE of Louisiana v. Jarman Gerard JONES.
    No. 10-786.
    Court of Appeal of Louisiana, Third Circuit.
    April 27, 2011.

      J. Phil Haney, District Attorney, Walter J. Senette, Jr., Assistant District Attorney, New Iberia, LA, for State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant Jarman Gerard Jones.
    Jarman Gerard Jones, Cottonport, LA, In Proper Person, Defendant/Appellant.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| iDefendant, Jarman Gerard Jones, appeals his adjudication as a fourth felony offender and his sentence of thirty years at hard labor, with credit for time served. For the following reasons, we affirm the trial court’s adjudication and sentence.

FACTS AND PROCEDURAL HISTORY

On or about March 31, 2007, the victim, Denise LeBlanc (LeBlanc), and two of her friends went to the Buck Wild Saloon in New Iberia, Louisiana, in LeBlane’s 1994 Honda Accord. Upon their arrival, Le-Blanc put the car keys in her front pocket and the trio entered the bar. Approximately forty-five minutes later, LeBlanc prepared to leave and noticed that her vehicle was missing from the parking lot and that the keys were missing from her pocket. She then reported the car as stolen to the Iberia Parish Sheriffs Office.

On April 1, 2007, the vehicle was involved in a pursuit spanning two parishes, St. Landry and Jefferson Davis. The driver of the vehicle, Defendant, was arrested and booked in both parishes. On April 5, 2007, during a recorded interview, Defendant admitted to taking LeBlanc’s vehicle, claiming he found the keys on the ground.

Although initially booked in St. Landry Parish, Defendant was later transferred to the Iberia Parish jail. Following an investigation, he was arrested on April 8, 2008, for unauthorized use of a motor vehicle, in violation of La.R.S. 14:68.4. At his June 4, 2008 arraignment, Defendant pled not-guilty, requested counsel and reserved his right to a jury trial. On February 3, 2009, after presiding over a hearing on a motion for other crimes evidence and a La.Code Crim.P. art. 767 hearing, the trial | ¡>court found the evidence admissible except for certain lines in a Boykin colloquy that all counsel agreed to exclude.

On February 5, 2009, a petit jury found Defendant guilty as charged. After the jury was released, the State filed a multiple offender bill of information in open court, alleging that Defendant had been convicted of four felonies including the February 5, 2009 conviction, and that he should be sentenced as a habitual offender pursuant to La.R.S. 15:529.1. Defendant pled not guilty. The trial court advised defense counsel that she had fifteen days to file an objection.

On April 2, 2009, the trial court conducted a multiple offender hearing. Because no objections were filed, the only issue at the hearing was the identity of Defendant as being the same person who was previously convicted of the felonies giving rise to the State filing the multiple offender bill. As it presided over both hearings, the trial court took judicial notice that the defendant at the multiple offender hearing was the same defendant convicted of unauthorized use of a motor vehicle on February 5, 2009 in docket number 08-776.

The State filed the bill of information, minute entry, and Boykin colloquy for each of three felonies it was alleging Defendant had been convicted of prior to his February 5, 2009 conviction. Defense counsel did not object to the exhibits being filed and the trial court called for them to be entered. The State then called Officer Patrick Freyou to the stand. Officer Freyou had the opportunity to supervise a man | .¡named Jarman Jones in his capacity as a probation/parole officer with the State of Louisiana. He positively identified Defendant as the man he supervised. He then testified that he supervised Defendant after he was granted parole for docket numbers 98^90 and 03-1948, unauthorized use of a motor vehicle and possession of cocaine, respectively. He recited Defendant’s birthday and social security number.

The State then asked Officer Freyou to read certain lines from the transcripts of the Boykin colloquies of the three prior felonies; each time, Officer Freyou read a name, date of birth, and social security number. The biographical data read each time was identical to the biographical data he had previously testified belonged to Jarman Jones, whom he had identified earlier in the hearing as Defendant. Officer Freyou also testified that he was familiar with Defendant’s signature and, when shown a condition of probation form, positively identified the signature thereon as belonging to Defendant. He also confirmed that the biographical information on a pre-sentence investigation belonged to Defendant.

After the hearing, the trial court found that the State proved, beyond a reasonable doubt, that Defendant was previously convicted of attempted simple burglary in docket number 97-743, unauthorized use of a motor vehicle in docket number 98-490, possession of cocaine in docket number 03-1948, and unauthorized |4use of a motor vehicle in docket number 08-776, and that Defendant was a fourth felony offender.

On April 23, 2009, the trial court sentenced Defendant to thirty years at hard labor with credit for time served after all counsel confirmed that pursuant to La.R.S. 14:68.4 and La.R.S. 15:529.1, the minimum sentence was twenty years and the maximum was life. In its oral reasons for ruling, the trial court stated that it had considered Defendant’s “extensive criminal record” and that it found that “there is an undue risk that [Defendant] will commit another crime as [he has] shown that [he] commit[s] one crime after another.” The trial court continued, stating “that a lesser sentence would deprecate the seriousness of [the] crime because not only did [Defendant] commit the crime of unauthorized use of a motor vehicle, upon the police attempting to stop [him, Defendant] led them on a chase through several different parishes.”

The trial court found that Defendant “knowingly created a risk of great bodily harm to not only [himself] but to the police that were trying to stop [him] and to all motorists who may have been on the highway while that chase was going on.” It found that Defendant was “persistently involved in similar offenses,” that he had “no respect for the property of others,” and that there were no mitigating circumstances applicable to Defendant’s case under La.Code Crim.P. art. 894.1.

| f,Counsel for Defendant made an oral motion for reconsideration of sentence and the trial court denied the motion but gave Defendant credit for time served. No other objections or motions were made at that time.

On October 1, 2009, Defendant filed a post-conviction relief form, seeking an out of time appeal and appointment of appellate counsel. He was granted an out of time appeal on November 13, 2009.

Defendant is now before this court on appeal arguing four assignments of error: in his pro se brief, he seeks a review for errors patent and asserts that his sentence is excessive. Through counsel he argues that the State failed to prove Defendant’s conviction in docket number 98-490, that his thirty-year sentence is excessive, and that the trial court erroneously allowed dissimilar and highly prejudicial evidence to be introduced at trial.

ERRORS PATENT

In accordance with La.Code CrimJP. art. 920, all appeals are reviewed for errors patent on the face of the record. After carefully reviewing the record in this case, we find that there are no errors patent.

DISCUSSION

State’s Failure to Prove Defendant’s Conviction

Defendant argues that the State did not submit evidence of sentencing in docket number 98-490, unauthorized use of a motor vehicle, and, therefore, the State failed to prove that Defendant was convicted of that predicate offense for purposes of the habitual offender law. As such, Defendant concludes that the State did not prove beyond a reasonable doubt that he was a fourth felony offender.

IfiThe State answers, asserting that because Defendant did not file a written objection to the habitual offender bill as required by La.R.S. 15:529.1(D)(l)(b), he has waived his right to raise the sufficiency of the evidence used to adjudicate him a fourth felony offender on direct appeal. Louisiana Revised Statutes 15:529.1(D)(l)(b) (emphasis added) provides:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in -violation of the constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

This court in State v. Kittlin, 97-92 (La.App. 3 Cir. 6/4/97), 695 So.2d 1137, found that a defendant who did not file written objections nor make an objection during the adjudication hearing did not preserve his claim for review. The defendant argued that the evidence presented by the State was insufficient because the Boykin colloquies for two of the predicate convictions were not valid. We explained:

Although he raised other objections to the plea colloquies used, this particular objection was not raised in either the written objections or during the adjudication hearing itself. According to the supreme court, a “defendant remains bound by his failure to raise his present complaint at the time he was adjudicated a multiple offender.” State v. Hall, 94-3147 (La.6/2/95); 654 So.2d 1085. Furthermore, La.R.S. 15:529.1(D)(l)(b) states that “[a]ny challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.” Consequently, the Defendant is barred from challenging the validity of his prior guilty pleas on the grounds alleged in his appeal.

\1Id. at 1139. Despite our ruling, however, we proceeded with a review of the defendant’s claim and found that even if his objection had been preserved, the claim had no merit.

In a more recent case, State v. Nelson, 07-701 (La.App. 3 Cir. 1/30/08), 977 So.2d 1061, writ denied, 08-494 (La.10/3/08), 992 So.2d 1009, and writ denied 08-497 (La.10/3/08), 992 So.2d 1009, this court noted that the defendant failed to object to any of the evidence presented at the habitual offender proceedings and failed to make any generalized objection after being adjudicated a habitual offender. As such, we concluded that the defendant was precluded from raising the issue of the sufficiency of the evidence used to adjudicate him as a habitual offender.

Other appellate courts have ruled similarly on this issue. In State v. Braziel, 42,668, pp. 6-7 (La.App. 2 Cir. 10/24/07), 968 So.2d 853, 858-59 (citation and footnote omitted), the second circuit court held, “[wjhere the record does not contain a written objection to the multiple offender bill of information, the issue is not preserved for appellate review unless an oral objection is made at the hearing.”

Similarly, in State v. Briscoe, 99-1841, p. 7 (La.App. 4 Cir. 1/17/01), 779 So.2d 30, 36, writ denied, 01-996 (La.10/4/02), 826 So.2d 1113 (citation omitted), the fourth circuit court stated, “[a]n oral objection is sufficient to preserve objection that trial court erred in adjudicating the defendant a habitual offender on the ground that a predicate conviction was based on an invalid guilty plea.” In Briscoe, counsel for the defendant objected to the introduction of the evidence produced by the State as to his two predicate convictions, alluding to the possibility of collaterally attacking the guilty pleas on appeal. On appeal, however, the court concluded that defense counsel’s action did not set forth a claim and factual basis with particularity as J^required by La.R.S. 15:529.1(D)(l)(b), and thus, the defendant was barred from raising the issue on appeal.

In the instant case, Defendant challenges the sufficiency of the evidence used to adjudicate him as a multiple offender, claiming that the State did not prove he had been sentenced for one of three predicate offenses. As noted in the habitual offender bill of information found in the record, the State alleged that the Defendant had been convicted of four felonies: 1) attempted simple burglary on October 14, 1997; 2) unauthorized use of a motor vehicle on December 7,1998; 3) possession of cocaine on May 6, 2005; and, 4) unauthorized use of a motor vehicle on February 5, 2009.

The record is void of a written response to the habitual offender bill of information filed by Defendant as required by La.R.S. 15:529.1(D)(l)(b). Also, the transcript of the habitual offender hearing indicates that the trial court confirmed that an objection had not been filed by Defendant and that the only issue before the court was the identity of Defendant as being the same person who was previously convicted of the crimes set forth in the bill of information.

The State proceeded with the filing of exhibits in support of Defendant’s status as a fourth felony offender, including docket number 98-490. As proof of Defendant’s conviction in docket number 98-490, the State offered a certified copy of the bill of information, charging him with unauthorized use of a motor vehicle, a minute extract from December 7, 1998, reflecting Defendant’s conviction of the charge, and the transcript of his guilty plea taken December 7,1998.

In response to the exhibits offered, counsel for Defendant stated:

Well, let me be very careful in what I’m about to say. I want to make sure I have it straight in my mind. We have no objections to their introduction as far as the documents as they speak for themselves. What 10we’re objecting to is Mr. Duhe’s character — description of what the document’s prove and/or disprove.

Next, Officer Freyou, Defendant’s probation/parole officer, testified that he was first assigned to supervise Defendant when he was granted parole on January 7, 2008 for his conviction in docket number 98-490. Officer Freyou also identified Defendant as the same person he supervised under that docket number. Officer Freyou confirmed that the information obtained from Defendant, his date of birth and social security number, were the same as those found in the proceeding of the Defendant’s guilty plea transcript in docket number 98-490. Counsel for Defendant did not object to Mr. Freyou’s testimony. Following the trial court’s ruling, however, defense counsel objected to the trial court’s finding that the State proved Defendant to be a fourth felony offender beyond a reasonable doubt.

Considering the record at hand, Defendant did not preserve the issue for review on appeal. Defendant did not file a written response to the habitual offender bill of information as required by La.R.S. 15:529.1(D)(l)(b). Although Defendant objected to the State’s description of what the documents proved and to the trial court’s ruling, he did not specifically address whether the State had established his conviction for the predicate offense. As such, Defendant did not set forth a claim and factual basis with particularity as required by La.R.S. 15:529.1(D)(l)(b). Briscoe, 779 So.2d 30. Without a contemporaneous objection to preserve the issue, Defendant waived the right to appellate review of that issue.

Although the State did not submit minutes or the transcript of sentencing to prove that Defendant was sentenced in docket number 98-490, the testimony of Officer Freyou indicates that Defendant was, in fact, sentenced. According to Officer Freyou, he was assigned to supervise Defendant while on parole for his conviction in docket number 98-490. If Defendant had never been sentenced for his conviction inj^docket number 98-490, he would not have been on parole. Defendant did not object to Officer Freyou’s testimony, nor did he allege that he was never sentenced.

As noted by the supreme court in State v. Mays, 05-2555, p. 2 (La.5/26/06), 929 So.2d 1231, 1232, “[t]his Court has repeatedly stated that [La.] R.S. 15:529.1(F) does not require the state to use a specific type of evidence to carry its burden at an habitual offender hearing; prior convictions may be proved by any competent evidence.” See State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-1355 (La.1/7/11), 52 So.3d 885.

Although Mr. Freyou’s testimony in the instant case involved the identity of the Defendant, his testimony also shows that Defendant was sentenced in docket number 98-490. Officer Freyou did not directly address Defendant’s sentence or the fact that Defendant was sentenced, but one can easily infer from his testimony that Defendant was sentenced since he was on parole. Accordingly, there is no merit in Defendant’s claim that the State did not prove he was sentenced in docket number 98^90.

This assignment of error is without merit.

Excessive Sentence

In his next assignment of error, Defendant argues that a thirty-year sentence is excessive for a conviction of unauthorized use of a motor vehicle on the facts relied upon by the State — that Defendant simply picked up some keys and drove off in the victim’s car. Defendant asserts there was no violence involved in taking the victim’s vehicle, the vehicle had not been broken into or hot-wired, and the victim was nowhere near the vehicle when the offense occurred. Defendant also contends that the trial court failed to consider mitigating circumstances, including the fact he had a child l^and sick mother who need his assistance. Lastly, Defendant maintains that none of the prior offenses upon which his adjudication as a fourth felony offender was based were violent. For these reasons, Defendant concludes that his case warrants the minimum twenty-year sentence or a deviation below the minimum.

In opposition to Defendant’s claim of excessiveness, the State correctly avers that Defendant’s oral motion to reconsider sentence did not provide any grounds for reconsideration and that his pro se written motion for reconsideration was not filed timely. As such, the State contends Defendant is barred from raising the exces-siveness of his sentence on appeal.

A motion to reconsider sentence must be based upon a specific ground, including claims of excessiveness. La. Code Crim.P. art. 881.1(E). In State v. Mims, 619 So.2d 1059, 1059-60 (La.1993), the supreme court addressed this requirement, explaining:

Under Article 881.1 Defendant must file a motion to reconsider and set forth the “specific grounds” upon which the motion is based in order to raise an objection to the sentence on appeal. However, in order to preserve a claim of constitutional excessiveness, the defendant need not allege any more specific ground than that the sentence is excessive. If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

Because Defendant failed to effectively assert specific grounds for the reconsideration of his sentence, we address his claim as a bare claim of excessiveness.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

| i2La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

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

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citation omitted).

The penalty for unauthorized use of a motor vehicle is not more than ten years imprisonment, with or without hard labor, or a fine of not more than $5,000, or both. La.R.S. 14:68.4. The applicable sentence enhancement provision of La.R.S. 15:529.1(A) provides:

(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
113(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life[.]

Because the underlying conviction for unauthorized use of a motor vehicle is punishable by a term of imprisonment less than Defendant’s natural life, pursuant to La.R.S. 15:529.1(A)(4)(a), Defendant’s enhanced sentencing exposure is twenty years to life imprisonment. Defendant’s thirty-year sentence is in the lower range of possible sentences.

At sentencing, the State stressed that the evidence of Defendant’s prior felonies introduced at the habitual offender hearing clearly indicated a pattern of criminal behavior consistent throughout Defendant’s adult life. Considering Defendant’s continuing criminal activity, the lack of any attempt to reform, and the likelihood of being a repeat offender if released back into society, the State maintained that a significant hard labor sentence was appropriate.

Counsel for Defendant did not offer any evidence for the trial court to consider at sentencing. The trial court confirmed that Defendant was twenty-nine years old, and that Defendant had written a letter to the court. It then stated:

I have considered your extensive criminal record in this matter.
I suspect you must have some other problem, maybe drugs, alcohol or a combination of substance abuse problems that make you the danger to society that you are.
I’ve considered the sentencing guidelines found in Code of Criminal Procedure Article 894.1 and I find that there is an undue risk that you will commit another crime as you have shown that you commit one crime after another, I cannot imagine how many crimes you may have committed that were not solved and that you were found guilty of, and certainly, you are a fourth offender and those are the ones that I will consider.
114That you need correctional treatment or a custodial environment that can be provided most effectively by your commitment to an institution; that a lesser sentence would deprecate the seriousness of your crime because not only did you commit the crime of unauthorized use of a motor vehicle, upon the police attempting to stop you, you led them on a chase through several different parishes as I recall the testimony at trial. And I find that knowingly created a risk of great bodily harm to not only yourself but to the police that were trying to stop you and to all motorists who may have been on the highway while that chase was going on.
I find that you’ve been persistently involved in similar offenses of this nature where you seem to have no respect for the property of others and I note specifically your previous unauthorized use of a motor vehicle conviction and your previous attempted burglary conviction.
I’ve also reviewed Article 894.1 for any mitigating circumstances and I fail to see that there are any mitigating circumstances that would be applicable in this case. For a man who is 29 years of age, you have amassed an amazing criminal record.

Defendant urges this court to find that his thirty-year sentence is excessive and that his sentence should be reduced to no more than the minimum time allowed by law, twenty years. A court must consider several factors when determining whether or not to depart from the minimum sentence imposed pursuant to La.R.S. 15:529.1. The supreme court explained:

The Legislature enacted the Habitual Offender Law pursuant to its sole authority under Article 8, § I of the Louisiana Constitution to define conduct as criminal and to provide penalties for such conduct. This Court has repeatedly held that the statute is constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed to be constitutional, and should be accorded great deference by the judiciary. However, courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution even though it falls within the statutory limits provided by the Legislature.
In State v. Dorthey, [623 So.2d 1276, 1280 (La.1993),] we held that this power extends to the minimum sentences mandated by the Habitual Offender Law and that the trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment” or is nothing more than “the purposeful [ ^imposition of pain and suffering” and “is grossly out of proportion to the severity of the crime.” State v. Dorthey, supra at 1280-1281.
Thereafter, in a series of writ grants, we acted to curtail the district court’s use of Dorthey in cases in which it appeared that the courts were simply substituting their judgment of what constituted an appropriate penalty for that of the Legislature.
This effort culminated in [State v.] Johnson, [97-1906 (La.3/4/98), 709 So.2d 672,] where we set out guidelines for when and under what circumstances courts should exercise their discretion under Dorthey to declare excessive a minimum sentence mandated by the Habitual Offender Law. We held that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut [the] presumption of constitutionality” and emphasized that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. Johnson, supra at 676, 677. To rebut the presumption that the mandatory minimum sentence is constitutional, Defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
Id. (Citing State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 529 (Plotkin, J., concurring)).
In making this determination, we held that “while a defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.” Id. This is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses. Id.
In addition, we held that the trial judge must keep in mind the goals of the statute, which are to deter and punish recidivism, and, we instructed that the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. Id. at 677.
| ifiFinally, we held that if a trial judge finds clear and convincing evidence which justifies a downward departure, he is not free to sentence the defendant to whatever sentence he feels is appropriate under the circumstances, but must instead sentence the defendant to the longest sentence which is not constitutionally excessive. Id.

State v. Lindsey, 99-3302, 99-3256, pp. 4-5 (La.10/17/00), 770 So.2d 339, 342-43, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001) (citations omitted).

Subsequent to the Lindsey ruling, courts have been reluctant to deviate from the sentence imposed by the trial court. In State v. Quinn, 38 So.3d 1102, the defendant was convicted of possession of cocaine, adjudicated a fourth offender, and sentenced to the mandatory minimum of twenty years. The trial court considered the defendant’s criminal history which included two convictions for simple robbery, two convictions for possession of cocaine, and a conviction for false imprisonment. The trial court also noted that the defendant could not be given a suspended sentence or probation, that he was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of the offense. Lastly, the trial court declined to find the defendant was exceptional under Dorthey, 623 So.2d 1276, due to his criminal history and because he had committed several crimes of violence. On appeal, finding that the minimum sentence is presumed to be constitutional pursuant to the supreme court’s ruling in Lindsey, 770 So.2d 339, this court concluded that the defendant’s sentence was not excessive.

In State v. Murphy, 09-805 (La.App. 5 Cir. 2/23/10), 34 So.3d 886, writ denied, 10-690 (La.10/15/10), 45 So.3d 1110, the defendant was convicted of possession of a controlled substance in the form of a psychoactive drug. He was found to be a fourth felony offender and was sentenced to thirty years at hard labor. On appeal, the defendant complained that his sentence was unconstitutionally excessive, considering |17that the underlying offense was relatively minor. The court affirmed the sentence, finding that the defendant’s prior convictions for distribution of narcotics showed a continuing pattern that was not forestalled by previous convictions and terms of imprisonment.

In State v. Briggs, 09-148 (La.App. 4 Cir. 8/19/09), 19 So.3d 517, writ denied, 09-1964 (La.4/5/10), 31 So.3d 355, the defendant was sentenced to twenty years as a fourth offender, the minimum possible sentence for his conviction of attempted possession of crack cocaine. On appeal, the defendant argued that the minimum was excessive considering the relatively minor nature of the offense and the non-violent nature of his prior offenses. His three underlying prior convictions included simple possession of cocaine, theft of property valued between $100 and $500, and possession of stolen property. In affirming the sentence on appeal, the court reasoned:

Rejecting a similar argument regarding the relatively minor nature of an offense involving a small amount of cocaine, this court in State v. Jones, 07-0533, pp. 10-13 (La.App. 4 Cir. 12/28/07), 975 So.2d 73 at pp. 80-81, reasoned that “[t]he defendant did not produce any evidence to rebut the presumption of constitutionality. His only argument on appeal is that the sentence is extreme for possession of a small amount of cocaine.” See also State v. Fleming, 2004-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451 (rejecting a similar argument).
Insofar as the non-violent nature of the Mr. Briggs’ underlying convictions, “the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.” Lindsey, 99-3302, 99-3256, p. 5, 770 So.2d at 343 (citing Johnson, supra).

Id. at 519-20.

Considering the facts of the instant case in light of jurisprudence discussed herein, Defendant’s sentence is not excessive, nor does it warrant a departure below the statutory minimum sentence of twenty years. Although the instant offense may be | ^considered relatively minor and the predicate offenses are not crimes of violence, Defendant’s convictions show the type of continuing pattern of criminal activity for which La.R.S. 15:529.1 was intended to deter and punish. See Murphy, 34 So.3d 886 and Lindsey, 770 So.2d 339. Additionally, the trial court’s imposition of a near-minimum sentence reflects its consideration of potential mitigating factors. Accordingly, Defendant’s sentence is affirmed.

Dissimilar Evidence

In his final assignment of error, Defendant argues that the trial court erred in allowing dissimilar, highly prejudicial evidence of other crimes with minimal to no probative value to be introduced at trial in docket number 08-776.

On February 3, 2008, the State filed a “Notice of Intent to Use and Motion for Pretrial Determination of Admissibility of Other Crimes Evidence.” At a hearing held that same day, the State introduced a certified copy of a bill of information and Boykin colloquy from Iberia Parish, docket number 98-490, State v. Jarman Jones. Next, Officer Freyou testified that he supervised Defendant’s parole in docket number 98-490 wherein Defendant was convicted of unauthorized use of a motor vehicle on December 7,1998.

The factual basis set forth in Defendant’s plea in docket number 98-490 was read aloud by Officer Freyou. Counsel for Defendant did not contest the evidence presented by the State or call any witnesses on Defendant’s behalf.

The State also argued that under La. Code Evid. art. 404(B), it was entitled to use the evidence submitted for the following reasons:

He’s been clearly identified by Mr. Freyou as the person who was convicted under Iberia Docket 98-^90.
11flThe recitation of the factual basis and the admission by the defendant of being responsible and guilty of unauthorized use of a motor vehicle, that any issues arising at trial dealing with 404-B issues, lack of knowledge, mistake, accident, intent, all of the 404-B systems, are all matters that are relevant for this similar type offense and charge during that trial.
And for that limited purposes [sic], it is available and should be available to the state to use.

Defense counsel did not offer any argument to refute the State’s request to use the evidence at trial.

The trial court subsequently held, “[b]ased upon the showing, I find that the evidence is admissible under 404-B for the knowledge, intent, systems exceptions that are given in 404-B.” Defendant did not object to the trial court’s ruling. Counsel then proceeded to redact two sections of the Boykin colloquy that contained inadmissible evidence of other crimes.

At trial, the State called Officer Freyou to testify again about Defendant’s prior conviction for unauthorized use of a motor vehicle in docket number 98-490. A certified copy of the bill of information and guilty plea colloquy were introduced into evidence with no objection from Defendant. Officer Freyou then read aloud the factual basis for Defendant’s guilty plea with no objection made by Defendant.

Now on appeal, Defendant alleges for the first time that the State’s introduction of other crimes evidence should not have been allowed by the trial court because there was no system to the two offenses and no probative value in the prior offense to establish knowledge or intent. Article 841 of the Louisiana Code of Criminal Procedure provides, in pertinent part, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” There was no objection raised by Defendant to the trial court’s ruling allowing the introduction of his prior offense or when it was introduced at trial. Accordingly, in the absence of a | ^contemporaneous objection at time of the trial, Defendant may not argue the issue on appeal, and thus, the issue is not considered herein. State v. Todd, 03-1230 (La.App. 3 Cir. 2/4/04), 866 So.2d 1040, writ denied, 04-588 (La.7/2/04), 877 So.2d 143.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the adjudication and sentence of the trial court is affirmed.

AFFIRMED.

      . Louisiana Code of Criminal Procedure Article 767 prohibits the State from referring to a defendant's confession or inculpatory statement in its opening statement unless the statement has been previously ruled admissible in the case.

      . "Boykin colloquy" stems from the Supreme Court’s "three right articulation" rule, requiring that there be "an express and knowing waiver” of a defendant’s privilege against compulsory self-incrimination, right to trial by jury, and right to confront his accusers when taking a guilty plea. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, 89 (1971), citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Without such waiver, the guilty plea cannot be taken. Id. The waiver cannot be presumed. Id.

      . When the Clerk read the multiple offender bill into the record she indicated that the docket number for Jarman Jones's February 5, 2009 conviction was 08-1846. At the multiple offender hearing, the State referred to the February 5, 2009 conviction as being in docket number 08-1846, and in issuing its finding, the trial court stated: "With the conviction in this Docket Number of Iberia Number 08-1846 the defendant has thereby become a fourth felony offender.”
      All docket numbers on the minute entries, transcripts, and captions in the record indicate that the docket number correlating to Defendant’s February 5, 2009 conviction is 08-776. For purposes of this opinion, we will refer to the docket in which Defendant was convicted on February 5, 2009 as 08-776.

      . Even if Defendant's pro se motion for reconsideration had been filed timely, it did not address the issues Defendant is now seeking to argue on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Brian Keith THOMAS.
    No. 10-806.
    Court of Appeal of Louisiana, Third Circuit.
    April 27, 2011.

      Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Brian Keith Thomas.
    Trent Brignac, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, Ville Platte, LA for State of Louisiana.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| defendant, Brian Keith Thomas, appeals his conviction and sentence for attempted second degree murder, alleging insufficiency of the evidence and that his forty-year sentence is excessive. For the following reasons, we affirm Defendant’s conviction and sentence with instructions.

FACTS

The victim, T.C. Charles, was shot on two separate occasions on September 2, 2008, in Ville Platte following Hurricane Gustav. He suffered a flesh wound to his leg early in the day during an argument between he and Kajikianoki Deville. Later that evening, he was shot twice in the face. The charges against Defendant herein concern the second, more serious, shooting.

A call came over the police radio involving shots fired in the area of Peach Street at approximately 10:00 p.m. on September 2, 2008. When Officer Joseph Tate, a patrolman with the Ville Platte Police Department, got to the area, he saw Defendant sitting on the porch of Elmond Gal-low’s home on the corner of Peach Street and Alton Locks. He then noticed Charles walking in the street; he was covered in blood and in critical condition, having been shot in the face twice.

Charles’s tongue had almost been severed as a result of his injuries; however, Officer Tate could understand Charles when he spoke. When Officer Tate asked Charles what happened, Charles stated that he had been shot by “Brian Keith Thomas” and pointed to Defendant. Officer Tate did not see Defendant with a gun.

Former Ville Platte Police Department Officers, Ervin Pitre, II, and Willis Thomas, also responded to the shots-fired call. Charles informed Officer Thomas several times that “Brian Keith” had shot him. Officer Thomas testified that he could | Phear Charles clearly. Officer Pitre asked Charles what happened, and Charles repeatedly said that “Brian Keith” shot him. Officer Pitre testified that at 5:00 p.m. earlier that same day, he investigated an incident in which Charles was shot in the leg by Deville on Blake Street, about one block away from where Charles was found injured that evening.

Ville Platte Police Officer Rodriquez Soi-leau also responded to the call. Defendant’s car was parked at Gallow’s home on the corner of Alton Locks and Peach Street. Charles was leaning over the hood of Officer Tate’s car bleeding profusely from his face. When asked who shot him, Charles said “B.K.,” which Officer Soileau knew to be Defendant’s nickname.

Officer Soileau testified that after Charles left by ambulance, police surrounded the Gallow home and ordered its occupants to step outside. Gallow and two juvenile females exited the home; however, Defendant refused. Officer Soileau entered the home and found Defendant sitting on a couch. It had been raining, and Defendant was very wet. Officer Soileau noticed that the cover to the attic was not securely in place. Another officer went up into the attic and found a gun, but he was told not to touch it and to leave it for the detectives to process later. A BB gun and a bag of various bullets were also found inside the home. Officer Soileau did not see Deville at Gallow’s home during his investigation.

Ville Platte Police Officer Nathaniel Savoy also appeared on the scene where he found Charles lying on the ground next to Officer Tate’s vehicle surrounded by several officers. The officers told him that Charles said “Brian Keith” had shot him. At that time, Defendant was standing on Gallow’s porch, approximately a half block away. Once officers headed toward the house, Defendant went inside. As the po~ lice | ^approached the home, Gallow exited and was taken into custody. Police found a BB gun lying on the couch where Defendant was sitting, a .22 rifle in a bedroom, and a handgun in the attic. The cover to the attic was directly above the couch. The handgun found in the attic was wet and covered in wood shavings.

Steven Manterez, a police officer in Missouri and member of the National Guard, testified that he was in Ville Platte on September 2, 2008, as part of hurricane relief efforts. He was riding with Officer Savoy that night. When they arrived at the scene of the shooting, Manterez thought that Charles was dying, so he wanted to get a dying declaration from him. Several officers kept asking Charles who shot him. Although Charles’s speech was slurred, Manterez heard Charles say that “Keith Thomas” shot him. Thereafter, Manterez, along with other police officers and guardsmen, approached the home where Defendant was reported to be and set up a perimeter. During a sweep of the home’s interior, a pistol was found in the attic.

Charles testified that he and Defendant referred to each other as “brother-in-law” because Defendant had children with Charles’s sister. He stated that although he considered Defendant his friend, they sometimes fought because Defendant was “always beating on” his sister.

Charles initially testified about the first gunshot wound that he suffered on September 2, 2008. Defendant and Deville had come to Charles’s home and begged him to go with them to Defendant’s mother’s home. Charles testified that he and Deville got into an argument, and Deville shot him in the leg. Brandon Freeman was present at that time.

Later that day, Charles was at his cousin’s home when someone knocked on the door and said Defendant wanted to see him. He met Defendant, and the two started |4talking on the sidewalk. Defendant asked if Charles would ride with him. Charles agreed and asked Defendant where Deville was. Although Defendant told Charles that Deville was not with him, Deville soon appeared with a gun in his hand and forced him into Defendant’s car. Charles testified that Deville and Defendant both had guns when they brought him to Gallow’s house.

Defendant parked his car, and the group got out. Charles testified that a bullet then came from nowhere, but it had to have been Deville that shot him because Deville was so close to him. Charles subsequently asked Defendant to help him, but Defendant then shot him in the face. After he was shot the second time, Charles fell down, and Defendant and Deville started dragging him, but ran when they saw the police approaching. Charles then went toward the lights he saw and heard Defendant holler, “he’s gone [sic] get away, we’ve got to finish killing him, he’s gone [sic] tell us on [sic] man.” Charles was found by police and asked who shot him. He told the police that Defendant shot him and pointed to where Defendant was in the yard. Charles testified that he did not mention Deville because Defendant shot him last, and he saw Defendant shoot him. Charles further testified that although Freeman was charged as a result of the incident, Freeman had nothing to do with the shooting at Gallow’s house. Charles testified that he was drinking on the date of the offense, but he had not used any drugs.

Elmond Gallow testified that his home was located at the corner of Peach Street and Alton Locks and that he was home the evening of September 2, 2008. He was playing dominos with his cousin and her friend when Defendant drove up. He subsequently heard two gunshots. He walked outside and saw his friend, Deville, |Bwho did not have a gun. He asked Deville what happened, and Deville said Defendant “just shot that boy.” Gallow saw a man lying on the ground “full of blood” near the driver’s side of Defendant’s car. The man, who had been shot in the face, got up, walked toward the street, and attempted to flag down a truck. As the man was heading toward the street, Defendant “went back at him,” and it appeared that Defendant, who had a black handgun, was going to shoot the man again.

Gallow testified that police soon arrived, and he and Defendant walked onto the porch of his home. As police approached, Defendant went inside. Defendant was wet and muddy. Deville did not enter the home. Gallow did not see a gun in Defendant’s hand when he entered the home, but he did not know whether Defendant had a gun inside his home because he was outside being arrested. Gallow did not see Defendant put anything in the attic, and he had not recently gone into the attic. Gallow testified that the gun in the attic was not his; however, he did have a .22 rifle, and he had put a silver pistol on top of the refrigerator when his cousin and her friend were at his home.

Gallow explained that he did not initially give as much detail to police as he did in court because he did not want to get involved. For example, in a statement he gave on September 8, 2008, he did not say that Defendant had a gun. Gallow testified that he was a convicted felon, having been convicted of aggravated battery.

Jasmine Rose and Quintina Larnette both testified that they were with Gallow in his kitchen playing dominos and smoking marijuana on September 2, 2008, when they heard two gunshots. Gallow got his silver gun from the top of the refrigerator and went outside to see what happened. When Gallow returned, he told them that 1 ^Defendant had shot Charles. A few minutes later, Defendant entered the house with a gun in his hand. Neither of them saw Defendant put anything in the attic.

Rose and Larnette admitted giving slightly different versions of the incident when questioned by police on several occasions after the shootings; however, both claimed to have been threatened by Defendant and his girlfriend shortly after the incident.

Deville first testified regarding the shooting incident. He had gone to the store with Defendant and Freeman before going to the home of Defendant’s mother. While there, Deville saw Charles in an alley. An argument ensued and Deville grabbed a gun and shot at the ground toward Charles’s feet. Charles ran away, and Deville left. He later learned that Charles had been grazed on the leg by a bullet. Deville testified that the black gun he used to shoot toward Charles belonged to Defendant and that he returned the gun to Defendant later that day. Defendant told Deville that he was tired of Charles and was going “to get him.”

That evening, Deville saw Defendant and got a ride from him. Charles was in the car with Defendant. Deville testified that he and Charles apologized to each other for the events that had occurred earlier that day. Deville asked Defendant to take him to Gallow’s home. After they pulled up to Gallow’s home, Charles asked Defendant for “a taste”; Deville testified that he guessed Charles was referring to alcohol. Charles exited Defendant’s car and walked toward the driver’s side, and Deville walked toward the street. Deville then heard a gunshot and turned around. Defendant told him, “I dome [sic] checked him.” When Gallow came outside, Deville told him that Charles had been shot. Defendant then walked up to Charles and shot him again with a high caliber handgun that Deville knew as belonging to Defendant.

17After Defendant shot Charles, Defendant ran away and Deville checked on Charles. Deville tried to help Charles, but saw Defendant coming back so he ran away. Charles tried to stop a passing truck, but Defendant told the driver not to worry about Charles because he was drunk.

Deville said that he did not enter Gal-low’s home that night. He turned himself in to the police on September 30, 2008. He testified that he ran because he was scared of Charles’s brother. Deville denied being involved in the shooting that occurred outside Gallow’s home. Nevertheless, he admitted that there were charges pending against him as a result of the incident.

Travis Allison testified that he had been in jail with Defendant during the year before trial. According to Allison, Defendant “brag[ged] about everything he did.” Defendant initially told Allison that Deville shot Charles. However, Defendant later said that he had shot Charles twice and was trying to kill him. Defendant said he tricked Charles into getting in his car. Defendant told him that he and Charles were approached by Barry Vidrine with the Ville Platte City Marshal’s Office. At that time, Defendant’s gun was in his car. Defendant told Allison that he and Charles then walked to the car, where Deville had been. During the drive to Gallow’s house, Deville and Charles supposedly forgave each other. As soon as the group got out of the car, Defendant shot Charles twice. Charles then got up and eventually collapsed in the middle of the street. Allison testified that Defendant said Deville did not have the heart to shoot Charles. Defendant said they went to Gallow’s house because that was Deville’s hangout spot and Deville had shot Charles earlier in the day; thus, it would look like Deville shot Charles.

IsAlIison testified that he was not given anything in exchange for his statement. However, after giving a statement, he asked that his probation be reinstated, and the request was granted. Allison had three prior criminal convictions involving drugs.

Barry Vidrine was a deputy with the Ville Platte Marshal’s Office. He testified that while he was investigating an unrelated shooting while off duty on September 2, 2008, he encountered Charles and Defendant sitting in Defendant’s car. They both got out and spoke to him and then got in the car and left. Vidrine did not suspect that either Charles or Defendant was armed, and he did not check Defendant’s car for weapons. Vidrine did not see De-ville at that time.

Francis Charles, T.C. Charles’s mother, was questioned about what a social worker reported from a meeting conducted while her son was in the hospital and whether she told the social worker that Charles had been shot in the face by the same person that had shot him earlier that day. Ms. Charles testified that her son was not able to speak well at the time the social worker visited, them and that she was not present when Charles was shot. She further testified that Charles was shot by two different men; Deville during the day and Defendant later that night. She admitted, however, that she was not present at either of the shootings.

Dr. Craig Thompson, who was qualified by the trial court as an expert in medicine and general surgery, testified that Charles was treated at the hospital at 5:00 p.m. for a gunshot wound to the leg and released. Charles was admitted again at 11:23 p.m. for two gunshot wounds to the face. Dr. Thompson testified that Charles suffered a gunshot wound to the tongue and the mandible. He stated that Charles’s bullet wounds were angular and not likely caused by “straight ahead” gunshots. Charles’s injuries would cause him to have some difficulty speaking, and his speech 19would be impaired. Dr. Thompson testified that Charles could have initially been able to communicate after being shot. Dr. Thompson testified that Charles tested positive for cocaine and benzodiazepines.

The parties entered a stipulation that the crime lab performed ballistic, fingerprint, and DNA testing of the gun found in Gallow’s attic and that nothing linked Defendant to the gun.

Shannon Thomas, a Probation and Parole Officer, testified that Defendant had previously entered a guilty plea to illegal use of a weapon and was sentenced to two years at hard labor. Defendant was released from custody on February 20, 2000.

PROCEDURAL HISTORY

Defendant was arraigned on October 9, 2008, and entered a plea of not guilty to attempted second degree murder and convicted felon possessing a firearm or carrying a concealed weapon. On November 25, 2008, he was charged by bill of information with second degree murder, in violation of La.R.S. 14:30.1; and convicted felon possessing a firearm or carrying a concealed weapon, in violation of La.R.S. 14:95.1. On the same date, an amended bill was filed, amending the charge of second degree murder to attempted second degree murder, in violation of La.R.S. 14:30.1 and 14:27. A second amended bill was filed on February 2, 2009, deleting one of two prior offenses used to support the charge of convicted felon possessing a firearm or carrying a concealed weapon. Defendant entered a plea of not guilty to the amended bill on February 5, 2009. Defendant was rearraigned on April 9, 2009, and entered a plea of not guilty. A third amended bill was filed on November 20, 2009, changing the date of the offenses from August 2, 2008, to September 2, 2008.

| mJury selection commenced on November 30, 2009. By unanimous verdict, the jury found Defendant guilty as charged on both counts on December 4, 2009. Defendant was sentenced on March 11, 2010, to forty years at hard labor, without benefit of probation or suspension of sentence, for attempted second degree murder. The attempted second-degree murder sentence was to run concurrently with the sentence imposed for convicted felon possessing a firearm or carrying a concealed weapon and consecutively with any sentence received, particularly the sentence in docket number 75061-FB. Defendant was sentenced to twelve years at hard labor for his conviction on the charge of convicted felon possessing a firearm or carrying a concealed weapon and to pay a fine of $2,500. The fine was suspended.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that there was insufficient evidence for his conviction of attempted second degree murder.

When considering a claim of insufficient evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Stowe, 93-2020 (La.4/11/94); 635 So.2d 168, 171.

State v. Smith, 94-3116, p. 2 (La.10/16/95), 661 So.2d 442, 443.

“The essential elements of the crime of attempted second degree murder are a specific intent to kill the victim and the commission of an overt act that tends toward the accomplishment of the victim’s death. La.R.S. 14:30.1; State v. Hollingsworth, 42,317 (La.App. 2 Cir. 8/15/07), 962 So.2d 1183.” State v. George, 09-143, pp. 4-5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618.

Inin brief to this court, Defendant contends that although most of the police officers that testified at trial stated that Charles said Defendant shot him, Charles testified that he was first shot in the face by Deville and then by Defendant. Defendant then notes that, other than Deville, Charles was the only witness to testify that Defendant shot him. Defendant also notes that a drug screen indicated that Charles tested positive for cocaine and sedatives. Defendant points to Dr. Thompson’s testimony that after the first bullet to the face, a second shot would likely not be straight. Defendant avers that after a gunshot wound to the face at close range, a person could not be sure of who fired the second shot, especially if that person was on drugs, like Charles was proven to be shortly after the second shooting.

Defendant contends that the testimony of Deville and Allison was self-serving. Defendant notes that he did not run, but was sitting on the porch of Callow’s home when police found Charles. Defendant argues that the conflicting testimony cannot be reconciled with the physical evidence. Defendant contends that Deville held a grudge against Charles and had shot him earlier the same day. Although Deville was not found in Callow’s home, both Rose and Larnette placed him inside the house shortly before police arrived. Additionally, Deville fled and was not arrested until approximately one month after the offense. Further, neither Rose nor Larnette saw Defendant put anything in the attic, and they observed him from the time he entered the home until he was arrested. Moreover, both Rose and Larnette testified that Defendant had a gun. However, they said he placed it in the couch, and that is where a BB gun was found.

Defendant notes that none of the police officers testified that Charles said Deville shot him. However, at trial, Charles said Deville shot him and then |12Pefendant shot him. Further, Charles had previously told police that Brandon Freeman shot him. Defendant admits that while the credibility of a witness is not ordinarily reviewed, testimony can occasionally be so inconsistent and incredible as to warrant review and acquittal. Defendant contends the evidence and the testimony is so contradictory and conflicting that his conviction should be vacated.

The State counters that ample evidence was produced to support Defendant’s conviction for attempted second degree murder. Charles testified that Defendant shot him. Deville testified that Defendant shot Charles. Additionally, Gallow testified that Deville said Defendant “shot that boy,” and Defendant had a handgun. Several police officers testified that when Charles was found, he said that “Brian Keith Thomas,” “Brian Keith,” “B.K.,” and/or “Keith Thomas” shot him. Furthermore, Allison testified that while in jail, Defendant stated that he shot Charles. With regard to Defendant’s argument that his not having fled the scene supports his claim of innocence, the State submits that Defendant also failed to offer any assistance to Charles after he had been shot in the face.

The State contends that despite the inconsistencies in their testimonies and/or statements, Gallow, Rose, and Larnette all stated that they saw Defendant with a gun in his hand after Charles was shot in the face. Further, the State submits that despite his having testified that Deville shot him in the face first, Charles never wavered in his testimony that Defendant shot him in the face at least once.

Based on the testimony offered at trial, the jury chose to believe that Defendant shot Charles. It is not this court’s function “to assess credibility or reweigh the evidence.” Smith, 661 So.2d at 443. Accordingly, we find that the State proved beyond a reasonable doubt that Defendant attempted to commit the second degree | ismurder of Charles when he shot him in the face, as “ ‘[deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill.’ State v. Brown, 03-897, p. 22 (La.4/12/05), 907 So.2d 1, 18.” State v. Roberts, 06-765, p. 5 (La.App. 3 Cir. 1/17/07), 947 So.2d 208, 213, writ denied, 07-362 (La.10/5/07), 964 So.2d 938.

Defendant’s first assignment of error lacks merit.

Excessiveness of Sentence

In his second assignment of error, Defendant contends the trial court imposed an excessive sentence of forty years, to run consecutively to any other sentence. He asserts that although the trial court stated it had received a presentence investigation report (PSI), no factors were given that justified the sentence imposed. Instead, the trial court merely stated that Defendant had a long criminal history. Defendant additionally contends the record does not indicate that the trial court took into consideration any aggravating and mitigating circumstances set forth in La.Code Crim.P. art. 894.1. Further, there is nothing in the record to show the trial court particularized the sentence. Thus, Defendant submits that his forty-year sentence, to run consecutively to any other sentence, is excessive.

Although Defendant failed to object to his sentence at the sentencing hearing and failed to file a motion to reconsider sentence, this court has reviewed claims of excessiveness in similar instances. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127. Accordingly, we will review Defendant’s claim as a bare claim of excessiveness.

1 i4This court discussed the standard of review applicable to claims of excessiveness of sentence in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250, as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

Defendant was convicted of attempted second degree murder, which is punishable by ten to fifty years at hard labor, without benefit of probation, parole, or suspension of sentence. La.R.S. 14:27; La.R.S. 14:30.1. Defendant was sentenced to serve forty years at hard labor, without benefit of probation or suspension of sentence.

[1sAt the sentencing hearing, the trial court stated that it had gone through the PSI “quite thoroughly,” and that Defendant had a long criminal record. The PSI indicates that Defendant is classified as a fourth felony offender, having been convicted of “use or possession of a firearm and bodily injury, and 2 felony convictions for drug crimes.” The PSI further indicates that Defendant had pending charges for second degree murder and aggravated/simple escape at the time the PSI was prepared.

In State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, writ denied, 03-411 (La.10/10/03), 855 So.2d 327, the defendant was convicted of attempted second degree murder and sentenced to fifty years, without benefit of probation, parole, or suspension of sentence. On appeal, the defendant asserted his sentence was excessive. After reviewing several cases in which the first, third, and fourth circuits had affirmed sentences of fifty years at hard labor for defendants convicted of attempted second degree murder, the fifth circuit affirmed, noting that, in the matter before it:

[T]he defendant used a firearm to shoot the victim at relatively close range, which, in the present case, resulted in a bullet-hole through the victim’s tongue and a bullet lodged in his neck....
While we note that the.trial judge in the instant case did not give any reasons for sentencing, we do not find that he abused his wide discretion in determining a sentence. Furthermore, the record supports the imposed sentence of 50 years.

Id. at 608.

Based on the cases cited herein and Defendant’s classification as a fourth felony offender, we conclude that Defendant’s sentence for attempted second degree murder is not excessive.

|1(iERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we have found two possible errors patent.

Parole Eligibility

Defendant was sentenced as follows:

On the Possession of a Firearm by a Convicted Felon, I'm going to sentence you to 12 years at hard labor with the Department of Corrections; I’m going to impose with that a $2,500.00 fine which I will suspend.
On the Attempted Murder, I’m going to sentence you to 40 years at hard labor with the Department of Corrections. The 12 years on the Possession of a Firearm by a Convicted Felon will run concurrently with this, but I’m going to order that the 40 years, that this sentence run consecutive to any time that you have received, particularly in docket number 75,061-FB.
I’ve considered all of the sentencing guidelines and also this sentence will be served without benefit of probation or suspension of sentence.

The court minutes reflect the sentences as imposed, except that the minutes indicate that parole eligibility was denied along with the denial of probation and suspension of sentence. However, “when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/10), 797 So.2d 62.

Both offenses require imposition of a sentence that is without benefit of parole, probation, or suspension of sentence. La. R.S. 14:95.1, 14:27 and 14:30.1. In State v. Thibodeaux, 05-680, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1093, 1094-95, in its error patent review, this court noted, in pertinent part:

When the trial court is silent as to the required term of parole ineligibility, La. R.S. 15:301.1 obviates the need to correct a sentence. See State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035.

|, 7In State v. King, 05-553 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, writ denied, 06-1084 (La.11/9/06), 941 So.2d 36, the defendant was found guilty of one count of armed robbery; he stipulated to being a second felony offender and was sentenced to forty-nine and one-half years imprisonment. On appeal, the court found the sentence imposed was illegally lenient because the trial court imposed the enhanced sentence “ ‘without the benefit of probation or suspension of sentence.’ ” Id. at 1215. The court explained, in pertinent part:

However, LSA-R.S. 14:64 B, the underlying statute, mandates that the sentence be served with benefit of parole, probation, or suspension of sentence. The restrictions on parole eligibility imposed on habitual offender sentences under LSA-R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879 (La.App. 5 Cir.5/15/02), 821 So.2d 60, 79, writ denied, 2002-1540 (La.12/13/02), 831 So.2d 983 citing State v. Bruins, 407 So.2d 685, 687 (La.1981). Nevertheless, this error need not be corrected on remand because under State v. Williams, 00-1725 (La.11/29 [28]/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A), the “without benefits” provision is self-activating. Esteen, 821 So.2d at 78.

Id. at 1215.

In State v. Wilturner, 03-719 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, the trial court failed to impose the defendant’s sentence for the conviction of sexual battery without the benefits of parole, probation, or suspension of sentence which was required under La.R.S. 14:43.1(C). This court found that pursuant to Williams, 800 So.2d 790, the trial court’s failure to specify that the sentence was subject to the statutory restrictions did not require remand for correction; instead, the sentence was deemed to include those restrictions by operation of law. See also State v. Darbonne, 01-39 (La.App. 3 Cir. 6/6/01), 787 So.2d 576, writ denied, 02-533 (La.1/31/03), 836 So.2d 64; State v. Colar, 04-1003 (La.App. 3 Cir. 2/2/05), 893 So.2d 152.

In the instant case, we read the sentencing transcript to provide that the restriction on probation and suspension of sentence applied only to the second | lssentence imposed, the forty-year sentence for attempted second degree murder. Because the trial court was completely silent regarding the benefit restrictions on the twelve-year sentence for possession of a firearm by a convicted felon, that sentence is deemed to contain the required benefits restriction by operation of law. See La. R.S. 15:301.1. Further, as to trial court’s silence regarding parole eligibility with regard to Defendant’s attempted second degree murder sentence, that part of the “without benefits” provision is also self-activating. Id.

Post-conviction relief notice

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has two years after the conviction and sentence become final to seek post-conviction relief. The minutes of sentencing reflect that the trial court “advised the defendant of his two-year prescriptive period for filing post conviction relief which begins to run today or from time of finality of Judgment.” The sentencing transcript indicates the trial court stated, “there is a two year prescriptive period for you to apply for post conviction relief.” As stated previously, a conflict in the minutes and transcript is resolved in favor of the transcript. See Wommack, 770 So.2d 865. We conclude that the information provided by the trial court was insufficient.

Accordingly, the trial court is directed to inform Defendant of the provisions of La. Code Crim.P. art. 980.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

DECREE

Defendant’s conviction and sentence for attempted second degree murder are affirmed. The trial court is directed to inform Defendant of the provisions of La. Code |igCrim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS.

      . Freeman testified that he was arrested on charges of attempted second degree murder as a result of the shooting outside Gallow’s home, but nothing ever came of those charges.

      . Deville was charged with several offenses stemming from both encounters with Charles on September 2, 2008, but he had not been tried on those charges at the time of this trial.