author: ROBERTA. CHAISSON, Judge. EDWARDS, C.J.,

text:
    STATE of Louisiana in the Interest of T.B. State of Louisiana in the Interest of K.H. State of Louisiana in the Interest of E.S. State of Louisiana in the Interest of B.M. State of Louisiana in the Interest of S.P. State of Louisiana in the Interest of J.P.
    Nos. 11-KA-411, 11-KA-417, 11-KA-418, 11-KA-419, 11-KA-420, 11-KA-421.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul J. Connick, Jr., District Attorney, Joseph R. McMahon, Jr., Elizabeth B. Curren, Assistant District Attorneys, Harvey, LA, for PlaintiffAppellant.
    Timón V. Webre, Attorney at Law, Indigent Defender Board, Harvey, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

|zThe State filed delinquency petitions against six juveniles, and the juvenile court dismissed those petitions. The State appealed the dismissals, and this Court consolidated the appeals on May 6, 2011.

FACTS AND PROCEDURAL HISTORY

State in the Interest of T.B., ll-KA-411

On November 5, 2010, T.B. was charged by petitions filed in juvenile court with the misdemeanor offenses of battery upon a school teacher, in violation of LSA-R.S. 14:34.3, and disturbing the peace, in violation of R.S. 14:103. On November 18, 2010, the juvenile denied the allegations, and the adjudication hearing was set for January 26, 2011. On the date set for the adjudication, T.B.’s attorney moved to continue the matter in order to monitor the juvenile’s grades, behavior, and attendance; to have the juvenile write a two-page essay and provide a copy at the next hearing; and to complete 20 hours of community service work. The juvenile court granted that motion.

| sAt the subsequent March 30, 2011 hearing, T.B. submitted a three-page essay indicating his understanding of the need to follow mies and behave appropriately, and that the consequences for failing to do so would likely result in future incarceration. The juvenile also submitted verification of completing 20 hours of community service at the New Orleans Downtown Recruiting Station. Finally, T.B. submitted school records indicating his scholastic performance.

Since the juvenile had completed all court ordered assignments, his attorney moved that the matter be dismissed under LSA-Ch.C.art. 876. Judge Nancy Amato Konrad granted the motion and dismissed the petitions, finding that good cause existed for the dismissal. In so ruling, the court noted T.B. had no prior record, and this was his first involvement in the legal system. The court further recognized his successful completion of the court ordered assignments which included performing community service work, writing a paragraph, and bringing up his grades. The court also commented that further involvement in the juvenile justice system would be of no benefit and would not be in the child’s best interest. The State objected to the dismissal of the petitions.

State in the Interest of K.H., ll-KA-417

On August 9, 2010, K.H. was charged by petition filed in juvenile court with the misdemeanor offense of theft of goods valued at less than $800.00 belonging to Macy’s, in violation of LSA-R.S. 14:67.10. The juvenile denied the allegations on August 24, 2010, and after two continuances, the matter was scheduled for adjudication on February 2, 2011. On that day, K.H.’s attorney moved to continue the matter in order to monitor the juvenile’s grades, behavior, and attendance; to have the juvenile write a two-page essay on why he should not steal, and provide a copy at the next hearing; and to complete 20 hours of community service work. |4The court granted that motion, and the matter was set for adjudication on April 6, 2011.

At that time, K.H. submitted a two-page essay indicating his understanding that stealing was wrong, that he learned his lesson, that he will not steal again, and that stealing could result in incarceration. In addition, K.H. submitted verification of his completion of 20 hours of community service at Aerens Supermarket in New Orleans, as well as verification of his attendance at St. Rita Catholic School in New Orleans. In light of the fact that K.H. successfully completed all court ordered assignments, his attorney moved for a dismissal under LSA-Ch.C. art. 876. After considering the documentation submitted by the juvenile, Judge James L. Can-nella granted the motion and dismissed the delinquency petition. The State objected to the ruling.

State in the Interest of E.S., ll-KA-418

On January 25, 2011, E.S. was charged by petition filed in juvenile court with the misdemeanor offense of theft of goods valued at less than $500.00 belonging to Wal-Mart, in violation of LSA-R.S. 14:67.10. On February 8, 2011, the juvenile’s counsel moved to continue the hearing so the juvenile could return at the next hearing with his school records, proof that he performed 20 hours of community service, and a two-page essay on why he should not steal. The juvenile court granted that motion, noting that the juvenile was appearing before the court for a first-time theft with no prior criminal history and no family or school related issues.

At the subsequent April 12, 2011 hearing, E.S. submitted a two-page essay indi-eating his understanding that stealing is wrong, and that it could hurt his future and result in incarceration. E.S. further submitted proof that he was on the honor roll at East Jefferson High School and that he was participating in a black history 1 .¡program at Providence Baptist Church. At this hearing, E.S.’s attorney moved to dismiss the matter under LSA-Ch.C. art. 876 since the juvenile had complied with the court assignments. Over the objection of the State, Judge Salvadore T. Mule granted this motion, finding there was good cause to dismiss the petition. The court noted the juvenile’s completion of the court requirements amounted to successful mediation which constitutes good cause.

State in the Interest of B.McC., 11-KA-419

B.McC. was charged by petition in juvenile court with the misdemeanor offense of simple criminal damage to property amounting to under $500.00, in violation of LSA-R.S. 14:56. On December 28, 2010, B.McC. entered a denial to the delinquency petition, and the matter was set for adjudication on January 26, 2011. On that date, the juvenile’s counsel moved that the matter be continued in order to monitor the juvenile’s grades, behavior, and attendance; to allow the juvenile time to write a two-page essay on why he should not damage others’ property and provide a copy at the next hearing; and to complete 20 hours of community service work. The juvenile court granted that motion.

At the subsequent March 30, 2011 hearing, B.McC. submitted a two and a half page essay indicating his understanding of the need to respect other people’s property. He also submitted verification of completing 20 hours of community service at St. Joseph Catholic Church. In addition, the juvenile indicated that he planned to return to assist in the construction of the church altar, which is above and beyond the community service as mandated by the court. He also produced school records indicating continued participation in adult education.

Considering the juvenile’s successful completion of the court ordered assignments, his attorney moved that the matter be dismissed under LSA-Ch.C. art. 876. Over the State’s objection, Judge Nancy Amato Konrad granted the motion |fiand dismissed the petition, finding good cause for the dismissal. The court noted this misdemeanor was the juvenile’s first offense, and he had not been involved with the legal system in the past. The court further recognized that B.McC. completed his community service, did what he was supposed to do in school, and wrote a paper as requested by the court. Lastly, the court noted that further involvement with the juvenile justice system would not be beneficial and would be contrary to the child’s best interest.

State in the Interest of S.P., ll-KA-420

On November 17, 2010, S.P. was charged by petition filed in juvenile court with the misdemeanor offense of possession of marijuana, in violation of LSA-R.S. 40:966 C. On December 1, 2010, the juvenile denied the allegations of the petition, and the matter was set for adjudication on January 26, 2011. On that date, S.P.’s attorney moved that the matter be continued in order to monitor the juvenile’s grades, behavior, and attendance; to allow the juvenile time to write a two-page essay on why he should not possess marijuana and provide a copy at the next hearing; and to complete 20 hours of community service work. The juvenile court granted the motion, and the matter was set for adjudication on March 30, 2011.

On that date, S.P. submitted a two-page report indicating his understanding of the harmful effects of marijuana. He also submitted verification of completing 20 hours of community service at Lafreniere Park with the Jefferson Parish Department of Parks and Recreation. S.P. further provided his school records indicating an overall improvement in scholastic performance and submitted a newspaper clipping showing that he was recognized for his behavioral efforts at the Jefferson Community School.

Based upon the juvenile’s successful completion of the court ordered requirements, his attorney moved for a dismissal pursuant to LSA-Ch.C. art. 876. [ 7Judge Nancy Amato Konrad granted the motion and, finding good cause, dismissed the petition. The court noted the juvenile’s young age and the fact that he had no criminal history and had never been involved in the legal system. Moreover, S.P. completed all of the requirements ordered by the court and had done exemplary work at school and in his community service. The court lastly noted that further involvement in the juvenile justice system would not be beneficial to the child. The State objected to this dismissal.

State in the Interest of J.P., ll-KA-421

On January 27, 2011, J.P. was charged by petition filed in juvenile court with the misdemeanor offense of possession of marijuana, in violation of LSA-R.S. 40:966 C. The juvenile denied the allegations of the petition on February 10, 2011, and the matter was set for adjudication on April 6, 2011. On that day, J.P.’s attorney moved for dismissal under LSA-Ch.C. art. 876 for good cause as the juvenile had completed all services.

To support the argument for dismissal of the petition, J.P.’s attorney called the child’s case manager, Aroel Green, to testify. Ms. Green, employed by the Jefferson Parish Human Service Authority, Substance Abuse Prevention Division, testified that J.P. was referred to her by his school for a policy violation in February. He presented for services within a week of the violation and completed services with her for two months. During that time, she had an opportunity to drug screen him, and all of his drug screens came back negative. In addition to completing Ms. Green’s program, J.P. also had to do other services to get back in school. In particular, he had to perform a certain amount of hours of community service, to participate in some projects at school, and to attend an educational component for one night that was three hours. J.P. also had to be drug tested by another school appointed facility, and that drug screen came back negative. Ms. |sGreen advised the judge that J.P. has agreed to voluntarily come in for two additional sessions that are not mandated and to seek tutoring through their services to help him pull up his grades. In addition, the parents have enrolled him in extra-curricular activities. To her knowledge, J.P. has successfully completed all that was required of him; and in her opinion, the juvenile did not need any further services at this time.

After Ms. Green’s testimony, Judge James L. Cannella addressed J.P. who acknowledged that he had made some mistakes and had done some things wrong. J.P. assured the judge that he has stopped doing those wrong things, and he agreed not to go back to these wrong ways. After listening to the testimony of the case manager and addressing the juvenile, Judge Cannella granted the motion to dismiss the delinquency petition. The State objected to this dismissal.

LAW AND ANALYSIS

On appeal, the State argues that the juvenile court abused its discretion by dismissing these delinquency petitions pursuant to LSA-Ch.C. art. 876. The State contends that the court’s dismissal of these petitions abrogates the constitutional and statutory authority of the district attorney to prosecute and violates the separation of powers guaranteed by the United States Constitution. The State notes that LSA-C.Cr.P. art. 61 gives the district attorney the sole power to decide against whom, when, and how to prosecute a case. It asserts that the juvenile court’s pattern and practice of systematically dismissing first offense misdemeanor cases after the juvenile completes an essay, community service, and good school work, without regard to the facts and circumstances of the offenses committed, does not meet the legal threshold of “good cause” as set forth in LSA-Ch.C. art. 876 and, as such, constitutes an abuse of discretion.

|3We will first turn our attention to the six delinquency petitions challenged in this appeal. At the time the offenses were committed, LSA-Ch.C. art. 876 provided as follows:

For good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner. The court shall dismiss a petition on the motion of the district attorney.

The juvenile court is vested with broad discretion in determining whether a case should be dismissed for good cause. State in the Interest of R.S., 09-1444 (La. App. 4 Cir. 6/9/10), 40 So.3d 1212, 1213, writ denied, 10-1614 (La.1/28/11), 56 So.3d 968. Although neither the Children’s Code nor the jurisprudence defines “good cause,” it generally means “[a] legally sufficient reason.” State in the Interest of S.R., 08-785 (La.App. 4 Cir. 10/8/08), 995 So.2d 63, 65-66. “Good cause” for dismissal of a petition against a juvenile is determined on a case-by-case basis and must be fully supported by the record. State in the Interest of M.B., 97-524 (La.App. 4 Cir. 11/19/97), 703 So.2d 146, 147.

In State in the Interest of T.N. and T.B., 00-1593 (La.App. 4 Cir. 5/23/01), 789 So.2d 73, the Fourth Circuit agreed with the juvenile court judge that good cause existed for the dismissal of the delinquency petition. In that case, three juveniles were charged with disturbing the peace. At the pre-trial conference, the trial court said that the juveniles were submitting to mediation and that if no subsequent incidents occurred, he would dismiss the case. Finding that the mediation was successful, the juvenile court judge dismissed the petition pursuant to LSA-Ch.C.art. 876. The State appealed, arguing that the trial court erred in dismissing the case, as there was no good cause. In support of its argument, the State pointed to LSA-C.Cr.P. art. 61, which gives the district attorney “entire charge and control of every criminal prosecution instituted or pending in his | ^district.” On appeal, the appellate court agreed with the trial court that successful mediation was justifiably “good cause” and affirmed the ruling of the juvenile court which dismissed the petition.

Likewise, in State in the Interest of S.R., 995 So.2d at 66, the appellate court upheld the trial court’s finding of good cause for dismissal under LSA-Ch.C. art. 876 where the State failed to exercise due diligence in enrolling S.R. in a diversion program. Good cause for dismissal under LSA-Ch.C. art. 876 has also been upheld where a victim did not want to pursue charges and the minor was referred to the family in need of services program, State in the Interest of Davis, 96-337 (La.App. 4 Cir. 10/30/96), 683 So.2d 879; and where the State rescheduled the diversionary program’s hours which forced the juvenile to decide between continuing his education or proceeding with the diversionary program, State in the Interest of L.T., 09-1200 (La. App. 4 Cir. 2/3/10), 30 So.3d 1136, writ denied, 10-479 (La.9/24/10), 45 So.3d 1072.

Based on our review of the record and the particular circumstances of each case, we cannot say that the juvenile court abused its discretion in dismissing the six delinquency petitions at issue in this appeal. In each matter, the juveniles were apparently first screened to determine whether it was the juvenile’s first involvement with the juvenile justice system and whether the charge involved a misdemean- or offense. After this initial screening, the court probation officer or the child’s attorney interviewed and reported to the court if it appeared that the minor and the family would benefit from such limited court intervention. In making this determination, factors that were considered included whether the child was having academic or behavioral issues at school and whether the child routinely obeyed his or her parents. In these six cases, limited court intervention was deemed appropriate, and the juveniles were given the opportunity, subject to individual [^variations, to complete community service, improve school performance, write a two-page essay, or submit to substance abuse services. After the juveniles’ successful completion of the court ordered requirements, the juvenile court dismissed the delinquency petitions.

At the time of the instant offenses, the only constraint that LSA-Ch.C. art. 876 imposed on the juvenile court was that it shall dismiss a matter upon the petition of the district attorney. The clear language of LSA-Ch.C.art. 876 gave the juvenile court great discretion in dismissing matters for good cause. In each of the instant matters, the juvenile court obviously believed that the minors’ completion of the court ordered requirements amounted to a successful intervention and, therefore, constituted good cause to dismiss the petitions. Upon review, we find no abuse of the juvenile court’s discretion in determining that there was good cause to dismiss the petitions.

In the instant appeal, the State not only challenges the dismissal of these six delinquency petitions, but also challenges the juvenile court’s routine practice of dismissing first offense misdemeanor cases under LSA-Ch.C.art. 876. We note that the State, in this appeal, has not established a pattern by one particular judge of dismissing delinquency petitions. In fact, three different judges were involved in the six dismissals presently before this Court. Judge Nancy Amato Konrad granted the dismissals in State in the Interest of T.B. (Appeal Number ll-KA-411), State in the Interest of B.McC. (Appeal Number 11-KA-419), and State in the Interest of S.P. (Appeal Number ll-KA-420); Judge James L. Cannella granted the dismissals in State in the Interest of K.H. (Appeal Number ll-KA-417) and State in the Interest of J.P. (Appeal Number 11-KA-421); and Judge Salvador Mule granted the dismissal in State in the Interest of E.S. (Appeal Number ll-KA-418). Further, in its attempt to show a pattern, the State, in its appellate brief, references the 112juvenile court’s dismissal, between October 6, 2010, and March 30, 2011, of 51 petitions filed by the district attorney without hearing any of the facts of the case. We note that the dismissals in these 51 cases are not being challenged on appeal.

Moreover, at this point, it is not necessary to address the propriety of the court’s routine practice of dismissing misdemean- or delinquency petitions because of the recent legislative changes to LSA-Ch.C. art. 876.

LSA-Ch.C. arts. 875 and 876 were amended by the Louisiana Legislature, Acts 2011, No. 172, § 1 as follows:

Art. 875. Motions to dismiss
A. All objections to the proceedings, including objections based on defects in the petition and defenses capable of determination as a matter of law, maybe raised by motion to dismiss.
B. Upon a finding of grounds to dismiss the petition as provided for in Paragraph A of this Article, the court shall order that the petition be dismissed.
Art. 876. Dismissal of petition
The court shall dismiss a petition on the motion of the district attorney.

The above amendments had an effective date of August 15, 2011. The amendment specifically removed the sentence which provided: “For good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner.” Since the amendment to the article has taken away the discretion of the juvenile court to dismiss delinquency petitions on its own motion, for good cause, it is not necessary for this court to make a determination as to the propriety of the court’s routine practice of dismissing first offense misdemeanor cases.

[ ^Accordingly, for the reasons set forth herein, we find no abuse of discretion and affirm the rulings of the juvenile court which dismissed the delinquency petitions in these six cases.

AFFIRMED

EDWARDS, C.J., concurs.

EDWARDS, C.J.,

concurs.

Iil concur with the final disposition in this matter. However, I write separately to express my concern that the systematic practice of the juvenile court in dismissing delinquency petitions pursuant to La. Ch.C. art. 876 usurps the authority of the district attorney. I believe this practice intrudes on the right and power of the District Attorney’s Office to decide which charges will be brought against an individual. I do not believe the juvenile court should dismiss delinquency actions as a matter of general practice.

I recognize that the law in effect at the time of these rulings authorized a juvenile judge to dismiss a delinquency petition for “good cause.” Good cause of the sort necessary for the juvenile court to dismiss delinquency charges against a juvenile is determined on a case-by-case basis and must be fully supported in the ^record. My review of the six cases at issue herein shows a pattern of dismissals that I do not believe was intended or envisioned by the code article. I believe my concern is reflected by the Louisiana Legislature in that it chose to amend article 876 (effective August 15, 2011) to delete the authority of a juvenile court judge to dismiss a delinquency petition for “good cause” shown.

Our Juvenile Justice System is based on administering justice using the criteria of the best interest of the child, and I fully recognize the need for the juvenile court judges to consider each youth who appears before them as an individual in making that decision. Juvenile court judges need and must have authority to use alternate sentencing methods when applicable in individual cases. I am also aware of society’s need for balancing the best interest of an individual child with the safety of the community. I believe these conflicting interests can best be resolved though understanding and cooperation between the juvenile court and law enforcement officials, and I would encourage both entities to work together to find some common ground with which to begin the formulation of a plan to help our troubled youth while providing a safe community for our citizens.

      . State ex rel. B.D., 09-0432 (La.App. 4 Cir. 11/12/09), 25 So.3d 181, 182.

      . 2011 Act 172.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ernest SAM.
    No. 11-KA-469.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERTA. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Ernest Sam (“Sam”), was charged by a bill of information with one count of armed robbery, in violation of La. R.S. 14:64. The bill of information also charged Ronald Cornin and Javonte Dillon with armed robbery and charged Ronald Cornin with aggravated flight in violation of La. R.S. 14:108.1(C). However, this appeal only concerns Sam. Sam was subsequently arraigned and pled not guilty. The State subsequently amended the bill of information to charge Sam under the firearm enhancement penalty provision of La. R.S. 14:64.3, and Sam was re-arraigned on the amended bill.

Sam filed a Motion to Suppress Statement and Physical Evidence, which was denied by the trial court. Sam proceeded to trial, following which a twelve-person jury found him guilty as charged of armed robbery with a firearm. He was sentenced to forty years at hard labor. On the same date, Sam pled guilty to obscenity, in violation of La. R.S. 14:106, and contraband in a correctional center, in violation of La. R.S. 14:402, which occurred on May 22, 2010 and August 26, 2010, respectively. He was sentenced to one year on each charge to run ^concurrently with one another and with his sentence in the present case. The trial court then ordered his sentence enhanced by an additional five years of imprisonment under the firearm enhancement provision of La. R.S. 14:64.3.

On the same date, the State filed a multiple offender bill of information against Sam, alleging that he was a second felony offender. Sam denied the allegations in the multiple bill, and the trial court set a hearing date of November 18, 2010. Sam filed for the present appeal prior to the multiple offender proceedings. Those proceedings are the subject of a companion appeal, State v. Sam, 11-KA-470. In the present case, Sam appeals his conviction.

At trial, the victim, Larissa Ubeira, through an interpreter, testified that, on July 23, 2009, at approximately 5:00 a.m., she was preparing to go to work. She left her apartment and proceeded to get into her Dodge Caliber. At that time, three young men approached her, pointed a gun at her head, and demanded she give them her money. She gave them her wallet, which only contained three dollars. They then demanded her car keys, and she complied. They also took her GPS. They forced her to lay face down in the grass, and they told her they would kill her if she looked at them. She stayed there until she heal'd her car drive away, and she then called the police from her cell phone. The State played the 911 call for the jury. Ms. Ubeira informed the police that the men had stolen her Dodge Caliber, which had a temporary license plate. However, she was unable to identify any of the individuals. She further testified that a gun, later found in the car, did not belong to her.

At approximately 5:00 a.m., Sergeant David Heintz of the Gretna Police Department responded to a dispatch regarding the armed robbery of Ms. Ubeira at her apartment complex located at 901 Gretna Boulevard. As he was en route to the apartment complex, he contacted Deputy Scott Henning of the Jefferson Parish | .¡Sheriffs Office and informed him that they were looking for a red Dodge Caliber with a temporary license plate in the back window. As Sergeant Heintz approached Gretna Boulevard, he observed a red vehicle with a temporary license plate turning left onto Manhattan Boulevard. Sergeant Heintz, Deputy Henning, and other Jefferson Police units pursued the vehicle, which was traveling at an extremely high rate of speed, across the LaPalco Bridge. After Sergeant Heintz crossed the bridge, he saw that the Dodge Caliber had crashed in the U-turn lane in front of Bohn Brothers Toyota. He further observed Deputy Henning in the process of handcuffing one of the suspects, and he saw the two other suspects fleeing the scene. Sergeant Heintz drove behind an abandoned Wal-Mart in pursuit of the suspects. Approximately ten minutes later, Sergeant Heintz witnessed the two suspects being pulled out of the canal located between the Toyota dealership and the abandoned Wal-Mart. The suspects were subsequently transported to the Gretna Police Station in separate vehicles. Sergeant Heintz called for a wrecker to pick up the Dodge and followed it to the police station garage, where it was secured.

Deputy Scott Henning of the Jefferson Parish Sheriffs Office also recounted the events of the morning of July 23, 2009. Deputy Henning testified that he was patrolling the second district in the area around Manhattan and LaPalco that morning when Sergeant Heintz notified him regarding the Dodge Caliber. He subsequently observed a red Dodge Caliber passing him and heading in the opposite direction. He stated that, as the vehicle passed him, he was able to see all three occupants. He then made a U-turn and initiated his lights and siren in an attempt to stop the vehicle. However, the vehicle accelerated and subsequently “crashed into the curb in the neutral ground of LaPalco Boulevard.” The deputy observed the driver and front seat passenger exit the vehicle and run toward the | ^Toyota dealership across the street. However, he was able to apprehend the individual in the backseat. Deputy Hen-ning testified that he found a revolver on the floorboard of the front passenger’s side of the vehicle. He stated that Sergeant Smith, who initially pursued the other two suspects, observed them jump into the canal. Deputy Henning testified that he observed the two suspects as they were being “fished out” of the canal. Once the suspects were taken from the canal, the case was turned over to the Gretna Police Department.

Officer Kelly Landry of the Gretna Police Department testified that he also received a call that morning, at approximately 5:00 a.m., regarding an armed robbery. At that time, he was performing the duties of both a patrol officer and a crime scene technician. Officer Landry proceeded to the apartment complex to meet with the victim, Ms. Ubeira, who advised Officer Landry that three black males had robbed her at gunpoint and had stolen her car. Officer Landry drove Ms. Ubeira to the Gretna Police Station and then proceeded to the scene of the car accident. He photographed the vehicle at the location. Looking inside the vehicle, he observed a revolver on the front seat passenger’s floorboard. Officer Landry also searched one of the suspects at the scene, Ronald Cornin, and recovered a GPS. He then transported Mr. Cornin to the Gretna Police Station, and the vehicle was towed to the police station for processing. The revolver, which was loaded, was collected, and the vehicle was dusted for fingerprints. Officer Landry identified the photos taken including that of the gun found inside.

Officer Landry dusted the vehicle and two compact discs for fingerprints. A partial print was lifted from one of the compact discs, which was subsequently analyzed by a forensic scientist with the Jefferson Parish Sheriffs Office. Officer Landry did not recover any fingerprints from the vehicle. He further stated that, to | Rhis knowledge, neither Sam’s DNA nor his fingerprints were lifted from the gun. He did not know who drove the vehicle or who put the handgun in place.

Andriana Perez, a forensic DNA analyst at the Jefferson Parish Sheriffs Office Regional DNA laboratory, testified that she obtained a partial profile from the swab of the left side of the handle of the revolver. She tested the DNA profile against the profiles of Cornin and Sam and testified that, due to the limited amount of DNA recovered from the evidence sample, “I was unable to make a conclusion regarding inclusion or exclusion of both Ronald Cor-nin and Ernest Sam.” She could not identify the DNA found on the weapon.

Detective Louis Alvarez, of the Criminal Investigation Division of the Gretna Police Department, was notified of the armed robbery at approximately 6:30 a.m. and “was called to assist with taking the statements from the suspects in custody.” He testified that he interviewed all three suspects: Sam, Cornin, and Dillon. He stated that the investigation revealed that Cornin drove the victim’s vehicle, while Sam sat in the front passenger seat, and Dillon sat in the backseat.

Detective Alvarez testified that he reviewed the Rights of Arrestee Form with Sam, advised Sam of his constitutional rights, and Sam affixed his initials next to each right on the form. He stated Sam acknowledged that he understood his constitutional rights and signed the form. The detective explained to him that, by waiving his rights, he could give a statement, but, at any time, Sam had a right to ask for an attorney and “everything stops.” Sam then agreed to waive his rights and give a statement. Detective Alvarez testified that Sam was cooperative. Detective Avarez and Detective Snow took Sam’s taped statement, which was subsequently transcribed. The State played the taped statement for the jury.

In the statement, Sam admitted that, when they approached the victim, he had his hand on the gun, variously claiming he pointed it at her, and also that he 17had his hand on the gun in his pants — “Snow: And she sees you with the gun. Sam: I assume she had to.” The two others approached Ms. Ubeira, who relinquished her keys, and they took her vehicle. They were pursued by the police, resulting in the car accident. The statement does not reference the Rights of Arestee Form or that Sam agreed to waive his rights.

On cross-examination, Detective Ava-rez, testified that Sam never asked for a lawyer or requested anything to eat or drink. Defense counsel then asked, “Did you or anyone else affiliated with the Gret-na Police Department strike or coerce him to plead or to speak?” Detective Avarez responded, “I did not.”

Sam testified at trial that his statement was not given freely and voluntarily. He stated that Detective Avarez and another detective hit him, forcing him to make a statement. When he met with Detective Avarez, at approximately 8:00 a.m., Detective Avarez beat him and told him what to say. Sam testified that Detective Avarez “slapped [him] once in the face, and ... hit [him] about four times in [his] side ribcage” with his fist. The prosecutor asked, “Did he hit you hard?” to which Sam replied, “A little bit.” Sam stated that Detective Avarez said, “Tell me that you had the gun. Tell me.” Sam testified that Detective Avarez told him what to say and then later advised him of his rights. Contrary to Detective Avarez’s testimony, Sam stated that he requested an attorney four times. He further testified that he saw a nurse at the Jefferson Parish Correctional Center. When the prosecutor asked Sam if he informed the nurse that he had been beaten, he stated, “No, sir. I just told them I just had hit my head on the car dashboard.”

Sam also testified regarding the day of the robbery. He admitted being with Cor-nin and Dillon when the victim was robbed, but he stated he was unaware they were going to rob anyone. Sam testified that he did not know that Cornin was in possession of a gun before the robbery occurred. He stated that he was just | ¿‘tagging along” when Cornin approached the victim and demanded her car keys. He stated it was Cornin’s idea to rob the victim, and he only told the police that it was a joint effort because they all had been caught together. He further testified that, after the car accident, he exited the car, ran toward the Toyota dealership, and then jumped in the canal. Prior to the suppression hearing, Sam explained the coercion to his lawyer but such was not brought up at the trial of that motion.

Ronald Cornin testified for the defense. He admitted taking the victim’s keys and navigation system and driving the victim’s car. However, he denied having a gun and stated that no one did. Sam did not do anything. Cornin testified that he was unsure when he first saw Sam that morning, and he stated that he did not know where Sam was when the robbery occurred. He further testified that Sam was not in the car with him when he fled the scene, and he was by himself when the police caught him in the canal. Cornin stated that he and Sam were beaten by the police into giving their respective statements and continued to deny that a gun was ever pulled.

On appeal, Sam urges that the motion to suppress should have been granted, and the State should have been prohibited from using Sam’s statement during the trial. He contends that the officers in this case abused Sam’s constitutional rights by beating, intimidating, and threatening him until he surrendered and gave a statement that memorialized his guilt, and the jury’s verdict was based on inadmissible evidence. He avers that his statement was the only evidence to link him to this crime.

At trial, the defense objected to admission of the transcribed statement and to the taped statement solely on the basis of cumulation and contended that the testimony of Detective Alvarez should have sufficed.

| aA defendant bears the burden of asserting the basis for his motion to suppress in order to give the State adequate notice so that it may present evidence and address the issue. After defendant files a motion to suppress, the State has the burden to prove defendant’s confession was of a free and voluntary nature. On appeal, the defendant is limited to the grounds he articulated at trial and a new basis for the claim, even if it would be meritorious, cannot be raised for the first time on appeal.

In the present case, defense counsel filed several pre-trial motions, including a Motion to Suppress the Statement, in which Sam claimed that his constitutional rights were violated because his statement was illegally and unlawfully obtained. At the suppression hearing, defense counsel sought to suppress Sam’s statement, as well as to suppress evidence regarding the buccal swab taken from him. Defense counsel questioned Detective Alvarez regarding Sam’s Rights of Arrestee Form. Detective Alvarez admitted that the Rights of Arrestee Form did not indicate that Sam signed the document before he gave his statement.

Defense counsel did not present any witnesses or offer any evidence at the suppression hearing. He argued that there was no indication as to what time Sam signed the Rights of Arrestee form, and, therefore, it was unclear if Sam was notified of his rights and waived his rights prior to making his statement. Defense counsel further argued that the transcribed statement did not reflect that Sam was properly Mirandized. He argued that, in the transcribed statement, Detective Alvarez did not ask, “Did I read you your rights ... Did you understand those | mrights?” Rather, the statement began with Sam describing what occurred on the date of the incident. Defense counsel argued that, since it is unclear whether Sam was properly Mirandized, the statement should be suppressed. Thereafter, the trial court denied Sam’s motion to suppress the statement and evidence, and defense counsel noted his objection for the record.

In the present case, Sam failed to present any evidence or argument at the motion to suppress hearing regarding the specific grounds for suppression that he now argues on appeal, particularly the abusive conditions he argues in brief. As previously stated, the only objection at trial on the admission of the statement was on the grounds that it was cumulative. Thus, the issue argued on appeal is not properly before this Court.

Nevertheless, we note the trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. In determining whether the trial court’s ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing but also may consider pertinent evidence presented at trial.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and | ^intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. A statement obtained from the defendant by direct or implied promises, or by the exertion of improper influence must be considered involuntary and, therefore, inadmissible. Whether a defendant’s purported waiver of Miranda rights was voluntary is determined by the totality of the circumstances. The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given.

At the suppression hearing, Detective Louis Alvarez testified for the State. He stated that he advised Sam of his rights by reviewing the Rights of Arrestee Form with him prior to taking his statement. According to the detective, he went over each and every one of the rights, and stated, “If [defendant] understood his rights, I told him to go ahead and initial by each Roman numeral.” He testified that Sam acknowledged that he understood his rights. Sam then waived his rights and agreed to give a taped statement. Detective Alvarez testified that Sam never asked for an attorney and further stated that he did not force, coerce, threaten, or offer Sam anything of value to obtain his statement. Sam also was informed of, and consented to, a buccal swab. Detective Alvarez’s trial testimony was essentially the same. Further, on rebuttal following the testimony of Sam and Cornin, Detective Alvarez testified that he did not abuse Sam when he took his [^statement. The prosecutor asked, “Did you ever punch [defendant] in the ribs? ... Did you ever slap him in the face?” He responded, “No, sir.” The prosecutor then asked, “Did he give this statement freely and voluntarily?” Detective Alvarez replied, ‘Tes, sir.”

The State’s evidence in the record shows that Sam made a knowing and intelligent waiver of his right to remain silent. He initialed next to each of his rights and signed the Rights of Arrestee Form, indicating that he understood what had been read to him and that he wished to waive his rights and make a statement. Detective Alvarez testified that Sam was not coerced or threatened into making the statement. Because Sam did not invoke his right to remain silent, and because he made a valid waiver, we find that the trial court did not abuse its discretion in denying Sam’s motion to suppress.

We note further that the jury had the benefit of hearing the testimony of both Sam and Cornin with regard to the alleged coercion by the officers prior to the statement. It is the jury’s province to give whatever weight it chooses to such evidence, and it is not our function to reweigh evidence on appeal.

This assignment of error is without merit.

We have reviewed the record for errors patent and find none. For the foregoing reasons, the conviction is affirmed.

AFFIRMED

      . State v. Cambrice, 10-26, p. 18 (La.App. 5 Cir. 4/26/11), 64 So.3d 363, 375 (citing State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162 (citing La. C.Cr.P. art. 703(E); State v. Smith, 94-120, p. 4 (La.App. 5 Cir. 5/31/94), 638 So.2d 452, 455)).

      . Cambrice, supra (citing Jackson, supra (citing La. C.Cr.P. art. 703(D)); See also, State v. Favors, 09-1034, p. 9 (La.App. 5 Cir. 6/29/10), 43 So.3d 253, 258, writ denied, 10-1761 (La.2/4/11), 57 So.3d 309; State v. Rogers, 09-13 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La.4/9/10), 31 So.3d 382).

      . Cambrice, supra; State v. Torregano, 03-1335, p. 3 (La.App. 5 Cir. 5/11/04), 875 So.2d 842, 845; State v. Richardson, 00-1551, p. 6 (La.App. 5 Cir. 8/28/01), 795 So.2d 477, 482, writ denied, 01-2670 (La.8/30/02), 823 So.2d 939; See also, State v. Merritt, 04-204, p. 6 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1082, writ denied, 04-1849 (La. 11/24/04), 888 So.2d 228.

      . State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, writ denied, 08-927 (La. 11/14/08), 996 So.2d 1088; State v. Bergman, 04-435 (La.App. 5 Cir. 10/12/04), 887 So.2d 127.

      . Favors, supra; State v. Nicholas, 06-903, p. 6 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 686.

      . Favors, 43 So.3d at 259 (citing State v. Mollette, 08-138 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-155 (La. 10/16/09), 19 So.3d 472); State v. Loeb, 09-341, p. 12 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 925, writ denied, 10-681 (La. 10/15/10), 45 So.3d 1110.

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

      . Loeb, supra (citing La. R.S. 15:451; State v. Franklin, 03-287, p. 4 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817); State v. Blank, 04-0204, pp. 9-10 (La.4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

      . State v. Batiste, 06-824, p. 10 (La.App. 5 Cir. 3/13/07), 956 So.2d 626, 634, writ denied, 07-892 (La. 1/25/08), 973 So.2d 751.

      . Loeb, supra.

      . Id.

      . State v. Mackens, 35,350, p. 13 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied, 02-0413 (La. 1/24/03), 836 So.2d 37.

      . See, State v. Cambrice, supra.


text:
    STATE of Louisiana v. Ernest SAM.
    No. 11-KA-470.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

12This is Ernest Sam’s (“Sam”) (defendant/appellant) second appeal. The underlying appeal on his conviction is currently pending in this Court before the same panel, in companion case number 11-KA-469. This appeal pertains only to Sam’s multiple bill proceedings.

On October 26, 2010, Sam was convicted of armed robbery with a firearm. Thereafter, he was sentenced to forty years of imprisonment, plus an additional five-year term under the firearm enhancement provision of La. R.S. 14:64.3.

On October 29, 2010, the State filed a multiple offender bill of information, alleging that Sam was a second felony offender based on his underlying conviction of armed robbery with a firearm and his prior conviction of simple escape. Sam denied the allegations in the multiple bill.

After a contradictory hearing, on December 9, 2010, the trial court found Sam to be a second felony offender. The trial court then vacated Sam’s original sentence and imposed an enhanced sentence of fifty-five years of imprisonment, to be served without benefit of parole, probation, or suspension of sentence. Sam then filed a timely motion for appeal.

IsOn December 10, 2010, Sam filed a Motion to Reconsider Sentence, which the trial court granted on January 27, 2010. The trial court then vacated Sam’s fifty-five-year enhanced sentence and resen-tenced him to fifty years at hard labor without benefit of probation, parole, or suspension of sentence.

The underlying facts of this case are contained in State v. Sam, 11-KA-469, the companion appeal to this case. In appealing his sentence, Sam first argues that the trial court imposed an excessive sentence. In the present case, he filed a motion to reconsider his first multiple offender sentence, in which he argued that his fifty-five-year sentence should be reduced because he was only nineteen years old at the time of the offense and his co-defendants received much lighter sentences although they were equally culpable. He further referenced the court’s authority to deviate from the sentencing provisions of the Habitual Offender Statute per State v. Dorthey.

On January 27, 2011, the trial court granted Sam’s motion and reduced the sentence to fifty years. The trial court stated:

There is no question that this was a severe crime, and I don’t believe that the sentence was unconstitutional and that a Dorothy consideration is appropriate here. However, I am granting the motion to reconsider and vacating the previous judgment.
[A]t the time I sentenced [defendant], I was under the impression that there was an enhancement due because a gun was involved on top of what was required. And because of that, I added an additional five years over what I thought at the time was an appropriate sentence. So I’m correcting that now and sentencing [defendant] ... to 50 years at hard labor.

Thereafter, defense counsel noted his objection for the record, but he did not state the grounds upon which the objection was based. Sam did not file a second motion for reconsideration of sentence. This Court has held that the failure to make or file a motion to reconsider sentence, or to state the specific grounds upon 14which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only.

However, in the present case, our error patent review reveals the following:

It appears that the trial judge originally believed she was required to enhance Sam’s habitual offender sentence by five years under the firearm enhancement provision. It then appears from the transcript that she concluded the enhancement was not required, and, thus, she granted Sam’s motion to reconsider sentence and reduced his sentence by five years.

In State v. Johnson, this Court found that the trial court’s failure to impose the mandatory five-year firearm enhancement rendered defendant’s sentence indeterminate and remanded for resentencing. In Johnson, the trial court found defendant to be a second felony offender and imposed an enhanced sentence of forty-nine and one-half years at hard labor for the crime of armed robbery with a firearm. This Court stated that, despite the mandatory language of the penalty provision of La. R.S. 14:64.3, the trial judge failed to impose a separate, consecutive five-year sentence. We further noted that La. R.S. 14:64.3 was applicable to an enhanced sentence imposed under La. R.S. 15:529.1.

Similarly, in the present manner we find the sentence to be indeterminate and illegally lenient for the apparent failure of the trial court to impose a separate, consecutive five-year firearm enhancement. Therefore, we vacate the sentence and remand for resentencing, pretermit-ting for the time being the argument of Sam regarding his sentence.

IñOur error patent review further reveals that the multiple offender bill of information states Sam was found guilty of violating the firearm enhancement penalty of La. R.S. 14:64.3 but does not include the underlying statutory citation of La. R.S. 14:64 for armed robbery.

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, Article 1, § 13. A clerical error in the statutory citation does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead defendant to his prejudice.

In the present case, there is no indication that Sam was prejudiced by the omission of the statutory citation for his underlying conviction of armed robbery, in violation of La. R.S. 14:64. The multiple bill did correctly state that Sam was found guilty of armed robbery with a firearm in violation of La. R.S. 14:64.3, and the multiple bill contained the correct case number, section of court, and date of his underlying conviction. Thus, we find the error in the statutory citation of Sam’s underlying conviction in the multiple bill is harmless.

For the foregoing reasons, the sentence is vacated and the case remanded for re-sentencing in accordance with this opinion.

SENTENCE VACATED; REMANDED FOR RESENTENCING

      . 623 So.2d 1276 (La.1993).

      . La.C.Cr.P. art. 881.1; State v. Bolden, 04-1000, p. 3 (La.App. 5 Cir. 3/1/05), 901 So.2d 445, 447, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279.

      . 08-1156, pp. 16-17 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1094, writ denied, 09-1394 (La.2/26/10), 28 So.3d 268.

      . Id. at 1094 (citing State v. King, 06-1903, p. 1 (La. 10/16/07), 969 So.2d 1228). See also, State v. George, 09-886, p. 18 (La.App. 5 Cir. 3/23/10), 39 So.3d 671, 683, writ denied, 10-1984 (La.9/16/11), 69 So.3d 1135.

      . La.C.Cr.P. art. 464; State v. Anderson, 561 So.2d 189, 191 (La.App. 5 Cir. 1990); State v. Conner, 08-0473 (La.App. 4 Cir. 10/1/08), 996 So.2d 564, 569.

      . See, e.g., State v. Varnado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Luhron A. GORMAN.
    No. 11-KA-491.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Luhron A. Gorman, in Proper Person, Angola, LA, Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Pefendant, Luhron Gorman, appeals his convictions and sentences for armed robbery and felon in possession of a firearm on the basis he was denied his right to confrontation through limited cross-examination of a State witness and denied his right to conflict-free counsel. For the reasons that follow, we affirm.

On March 25, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant with armed robbery with a gun in violation of La. R.S. 14:64 and 14:64.3 (Count 1), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (Count 2). He pled not guilty and filed several pre-trial motions, including a motion to suppress identification and statement which was denied after hearing. The State subsequently amended the bill of information to remove the charge relative to La. R.S. 14:64.3, armed robbery while armed with a gun. Defendant proceeded to trial on October 7, 2010, and a 12-person jury found him guilty as charged on both counts. On October 25, 2010, the trial court sentenced defendant to 75 years at hard labor on Count 1 and 15 years at Chard labor on Count 2 without benefit of parole or probation, with the sentences to run consecutively.

The State subsequently filed a multiple bill alleging defendant to be a third felony offender. On January 12, 2011, defendant stipulated to the multiple bill. The trial court vacated defendant’s original sentence on Count 1 and resentenced him under the multiple offender statute to 75 years at hard labor to run consecutively to the original sentence on Count 2.

FACTS

On February 20, 2010, Althea Ovella, age 76, left church and drove to her mother’s house in the 300 block of Sena Drive in Metairie. When she arrived at approximately 5:15 p.m., she observed two young men walking across the street. Ms. Ovella opened the garage door with a remote control and went inside of the garage. As she opened her car door, one of the men she had seen across the street pointed a black handgun at her and demanded her purse. Ms. Ovella asked the gunman not to take her purse because it contained her babies’ pictures. The gunman asked if she had any money, and Ms. Ovella responded by giving him $60.00. He allowed her to keep her purse. The other man, who was standing by the garage door, told her to be quiet and that they were not going to hurt her.

After taking her money, the gunman said, “Let’s go inside.” Ms. Ovella begged him not to go inside, explaining that her 97-year-old mother would die if she saw him come inside with a gun. The gunman asked if she had a gun or if her mother had any money, and Ms. Ovella responded negatively. The man standing by the garage door said, “Let’s go,” and he and the gunman left.

John Carroll, a former detective sergeant with the Jefferson Parish Sheriffs Office (JPSO), investigated the armed robbery and developed two suspects. He | ¿prepared two photographic lineups and showed them to Ms. Ovella, who positively identified defendant as being the man who stood back during the robbery. A few days later, Ms. Ovella positively identified the gunman in another photographic lineup. Thereafter, defendant was arrested and brought in for questioning. After being advised of and waiving his rights, defendant admitted committing the armed robbery of Ms. Ovella.

During his investigation, Detective Carroll learned that defendant and his girlfriend were staying at the Travelodge located at 2200 Westbank Expressway in Room 308. The police obtained the girlfriend’s consent to search the room and recovered a fully loaded silver Taurus revolver hidden behind an air conditioning unit. It was determined that this gun was not the gun used in the robbery of Ms. Ovella.

During defendant’s statement, which occurred after the search of the motel room, he admitted that he had placed a gun inside the air conditioning unit. He also identified Michael Collier as the gunman in the robbery.

At trial, defendant testified that on the day in question, he and Collier tried to commit a burglary in New Orleans, but decided not to do so when they saw children in the house. They drove away from the scene and eventually made their way to Metairie Road. They thought the police were pursuing them, so they parked the car near a service road and began walking. When they saw a garage door open, they ran inside of the garage. Inside the garage, defendant saw Ms. Ovella, who started to scream. He told her to be quiet and that they were not going to hurt her.

According to defendant, Collier then pulled out a gun. Defendant told Collier to put the gun away because the woman was about to have a heart attack. Defendant claimed he did not leave at that point because he was afraid Collier was Ingoing to hurt the woman. He recalled the woman asking them not to go inside of the house because of her 97-year-old mother. Afterwards, Collier took money from the woman, and he and defendant left.

Defendant subsequently saw himself on the news, at which time he fled to Monroe. He was eventually apprehended by U.S. Marshals and brought back to Jefferson Parish. Defendant claimed his initial intent was not to rob Ms. Ovella, and that he only ran inside the garage to avoid the police. Defendant admitted that he had a gun on him during the incident, but stated he did not pull it out.

On rebuttal, Ms. Ovella testified that defendant’s testimony was wrong, in that defendant and Collier were not running prior to the incident, there were no police cars around, and the gunman did not pull the gun out after he came into the garage as he already had it out. Ms. Ovella also stated that the only words defendant said were, “Let’s go,” and that he did not tell Collier anything else.

Defendant and the State stipulated that defendant had previous convictions for possession of cocaine and possession of cocaine with intent to distribute and that his convictions occurred within the ten-year period required by La. R.S. 14:95.1.

DISCUSSION

Defendant asserts two assignments of error on appeal. First, through counsel, he claims the trial court impermissibly limited his right to cross-examine Detective John Carroll by denying defendant’s request to question Detective Carroll on his then-pending criminal charges. Defendant contends the trial judge’s ruling deprived him of his constitutional right to confront a critical witness against him. Second, in a pro se supplemental brief, defendant argues the trial court violated his Sixth Amendment right to conflict-free counsel when it denied his motion to appoint new counsel. Defendant maintains a conflict arose when he had ha verbal outburst in court, attempted to address the trial court, and advised the trial court that his counsel never discussed his defense with him.

Right to Cross-Examination

Prior to testimony being taken, the prosecutor advised the trial judge that it was his intent to call former Detective Carroll as a witness. He argued that the defense should not be allowed to cross-examine Carroll as to why he was no longer with the JPSO because the reasons for Carroll’s departure were irrelevant. He noted that Carroll had not been convicted of any crimes and, therefore, any evidence that Carroll had been arrested or terminated was inadmissible. The prosecutor added that there were no allegations relating to Carroll’s trustworthiness. Defense counsel responded that any such limitation violated defendant’s right to confront Carroll.

The trial judge ascertained that Carroll had been accused of distribution of cocaine, which had no relationship to the instant case. The prosecutor said that he had made a written disclosure in the record that Carroll was arrested for possession of steroids and conspiracy to distribute cocaine, which had nothing to do with his truthfulness. The prosecutor explained that Carroll’s case was presently being screened, that Carroll had not been indicted, and that the District Attorney’s Office had recused itself in Carroll’s case. He remarked that the State had no ability to affect the outcome of Carroll’s case because the Attorney General’s Office was handling the screening and prosecution of it. Defense counsel nonetheless argued that Carroll’s arrest and dismissal from the police department were directly relevant to his ability to tell the truth.

After hearing arguments of counsel, the trial judge stated he was inclined to maintain the State’s objection, but he had to hear what the questions were. [^Defense counsel said she would object should the trial judge prevent her from eliciting certain testimony from Carroll.

At trial, defense counsel asked Carroll on cross-examination why he was no longer employed by the JPSO. The prosecutor objected as to relevance, and the trial judge sustained the objection. When defense counsel later asked Carroll why he was no longer a policeman, the prosecutor objected again as to relevance, and the trial judge again sustained the objection.

The Sixth Amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. State v. Carter, 96-358 (La.App. 5 Cir. 11/26/96), 685 So.2d 346, 351. The primary purpose of confrontation is to secure for the defendant the opportunity for cross-examination. Id. However, the extent of cross-examination is not without limitation. In order for evidence to be admissible at trial, it must be relevant. The determination regarding the relevancy of tendered evidence, and therefore the scope and extent of cross-examination, is within the discretion of the trial judge, whose ruling will not be disturbed absent an abuse of discretion. Id.

The credibility of a witness may be attacked by any party, including the party calling him. La. C.E. art. 607(A). The right to impeach a witness for bias or interest is encompassed in the right of confrontation, and is specifically dictated by La. C.E. art. 607(D). State v. Hollins, 97-627 (La.App. 5 Cir. 11/25/97), 704 So.2d 307, 309, writ denied, 99-507 (La.8/25/99), 747 So.2d 50. However, “[particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of a crime as provided in Articles 609 and 609.1 or as constitutionally required.” La. C.E. art. 608(B).

|sLa. C.E. art. 609.1(B) provides that “[gjenerally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.”

Despite the general rule, the possibility that the prosecution may have leverage over a witness due to that witness’s pending criminal charges is recognized as a valid area of cross-examination. State v. Wiley, 10-811 (La.App. 5 Cir. 4/26/11), 68 So.3d 583, 592. It is well-settled that a witness’s “hope or knowledge that he will receive leniency from the State is highly relevant to establish bias or interest.” Id. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

In State v. Wiley, supra, defendant argued the trial court erred in refusing to allow him to question a former JPSO deputy at hearings on a motion to suppress regarding the deputy’s felony drug arrests and filing of false police reports. This Court found the trial court did not abuse its discretion in ruling that the former deputy could testify at trial and that no mention of his arrests could be presented to the jury at trial. This Court noted that the record indicated the witness was not promised anything by the State in return for his testimony, there was no evidence that the former deputy acted inappropriately in the case at bar, and his arrest was remote from the arrest of the defendant. This Court further noted there was little probative evidentiary value to disclosing the nature of the former deputy’s arrest. Id. at 592.

Also, in State v. Wright, 10-577 (La.App. 5 Cir. 2/15/11), 61 So.3d 88, writ denied, 11-560 (La.9/30/11), 71 So.3d 283, the defendant argued he was denied |9his right to present a defense when the trial judge prevented him from asking a State witness why he was no longer employed by the JPSO. This Court found that the defendant had not shown he was prejudiced by the limitation of cross-examination of the witness. This Court noted that the former detective’s testimony had not been proffered, he did not testify at trial, and defense counsel elicited uncontrovert-ed testimony that the detective obtained the defendant’s statement by beating him. Id. at 100-03.

In the instant case, although the prosecutor said that he had made written disclosure in the record that Carroll was arrested for possession of steroids and conspiracy to distribute cocaine, the record does not reflect such a disclosure. Additionally, Carroll was not questioned outside the presence of the jury regarding his arrests and, therefore, that testimony was not proffered for this Court’s review. Nevertheless, even assuming Carroll was arrested for the stated charges, we find the trial judge did not err by refusing to allow the defense to cross-examine Carroll regarding his arrests.

First, the prosecutor represented that the District Attorney’s Office had re-cused itself in Carroll’s case and that the Attorney General’s Office was handling the screening and prosecution of it. Therefore, the District Attorney’s Office had no ability to affect the outcome of Carroll’s case. Second, the record does not indicate and defendant does not allege that Carroll was promised anything by the District Attorney’s Office or the Attorney General’s Office in return for his testimony. Third, the allegations against Carroll regarding possession of steroids and conspiracy to distribute cocaine were irrelevant to the instant case and, therefore, there was little probative evidentiary value to disclosing the nature of Carroll’s arrest.

| mLastly, there was no evidence that Carroll acted inappropriately in the instant case. Although Carroll took defendant’s statement, other detectives were present, and the record does not reveal and defendant does not allege any irregularities in defendant’s statement. In fact, defendant decided to confess to the instant offense when he was being questioned by Orleans Parish detectives, and he specifically asked for Carroll to be brought back into the room so Carroll could hear his confession. Also, even though Carroll was the one who found the gun in defendant’s motel room, defendant admitted in his statement that he hid the gun inside the air conditioning unit in that room. Defendant also admitted at trial that he possessed a gun during the incident, but did not pull it out.

In light of the foregoing, we find that the trial judge did not err by disallowing cross-examination of Carroll regarding his then-pending criminal charges.

Right to Conflict-Free Counsel

The record reflects defendant filed a pre-trial pro se “Motion for Appointment of New Counsel,” on what appears to be October 6, 2010, requesting appointment of new counsel based on an attorney-client conflict. On October 7, 2010, the day of trial, the trial judge noted that defendant had filed a pro se motion for appointment of new counsel and denied the motion. The trial judge first noted the age of the case and stated he was not going to grant the motion less than an hour before trial was set to start. He further commented that defense counsel had been competent and zealous in her representation of defendant and that he did not believe counsel could do more for defendant than she had already done. Defendant’s subsequent request to personally address the court was denied.

The proceedings continued. The parties conducted jury voir dire and entered into trial stipulations. At some point, the trial judge inquired into defendant’s pearlier outburst, which is not transcribed in the record. According to defendant’s motion for new trial, his outbursts included verbal accusations that his defense counsel was sleeping with the prosecutor, was accepting cash payments “under the table,” and failed to get him a good plea deal. Defendant further “yelled” to the jurors that he tried to fire his counsel before trial and obtain new counsel, but was being forced to retain his old counsel. The trial judge asked both defense counsel and the prosecutor if anything defendant said during his outburst was true, to which both responded negatively.

The prosecutor then advised the trial judge that a deputy had told him that defendant said he intended to disrupt the proceedings again in order to cause a mistrial. The trial judge warned defendant that if he disrupted court again he would be removed. Defendant responded by telling the trial judge that he and his attorney never discussed a defense, and that all they had discussed were plea bargains.

A little while later, after discussion regarding Carroll’s testimony, defense counsel told the trial judge that defendant felt another outburst coming on and would like to be removed from the courtroom. The trial judge directly addressed defendant who told the judge that he did not want to be in there, that they could have the trial without him, and that he had no lawyer. After additional discussion, the trial judge said, “Take him downstairs.”

The Sixth Amendment to the United States Constitution and Louisiana Constitution Article 1, § 13 guarantee that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. If a defendant is indigent, he has the right to court-appointed counsel. State v. Reeves, 06-2419 (La.5/5/09), 11 So.3d 1031, 1057, cert. denied, — U.S. —, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). The right of a defendant to counsel of his choice has l^been implemented by La.C.Cr.P. art. 515, which provides in pertinent part that, “Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court.” However, an indigent defendant does not have the right to have a particular attorney appointed to represent him. An indigent’s right to choose his counsel only extends to allowing the accused to retain the attorney of his choice if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Reeves, 11 So.3d at 1057.

The question of withdrawal or substitution of counsel largely rests within the discretion of the trial judge, and his ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. See State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 142, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Additionally, a criminal defendant is entitled not only to counsel but also to conflict-free counsel. U.S. Const. Amend. 6 and 14; La. Const. Art. I., § 13; State v. Franklin, 400 So.2d 616, 620 (La.1981). After the trial court has been alerted that a conflict of interest exists, the judge must take the proper steps to assure that the defendant’s Sixth Amendment right to effective assistance of counsel is not violated. State v. Cisco, 01-2732 (La.12/3/03), 861 So.2d 118, 132, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004).

The mere possibility of a conflict is insufficient to impugn a criminal conviction. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). It is only when an actual conflict exists that the reversal of a conviction may be required. See Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 1242, 152 L.Ed.2d 291 (2002), citing Holloway v. Arkansas, 435 U.S. 475, 13481, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978). An actual conflict is defined as follows:

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.

State v. Kahey, 486 So.2d 475, 484 (La.1983), citing Zuck v. Alabama, 588 F.2d 436 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). “An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties.” Kahey, 436 So.2d at 484. A conflict can also arise when a defense attorney is required to cross-examine a current or former client on behalf of a current defendant. Cisco, 861 So.2d at 130.

We find no merit to defendant’s argument that he was entitled to new counsel because of a conflict of interest. Defendant contends a conflict arose when he filed a motion to appoint new counsel. Defendant’s mere dissatisfaction with his appointed counsel does not create an actual conflict of interest that requires appointment of other counsel. Furthermore, there is no evidence defense counsel had an actual conflict of interest. The record does not show defense counsel was simultaneously representing defendant and a State witness, nor does the record show that defense counsel was required to cross-examine a witness who was testifying against defendant and who was a client of the attorney.

Insofar as defendant contends he was improperly denied new counsel, we find no abuse of the trial court’s discretion. Defendant filed his motion for appointment of new counsel the day before trial asserting he was dissatisfied with his current counsel. However, defendant did not state the basis for his dissatisfaction other to broadly suggest counsel was not adequately defending him.

114The record shows defense counsel filed pretrial motions, including a motion to suppress statement and identification. At the suppression hearing, defense counsel actively cross-examined the victim and Detective Guesnon, who was involved in the investigation. Additionally, defense counsel diligently tried to negotiate a deal for defendant in the instant case and four similar charges in New Orleans, where defendant would have received all concurrent sentences, but defendant refused the deal. At trial, defense counsel strenuously objected to the State’s request that the defense be prohibited from questioning former Detective Carroll about his then-pending charges. She also thoroughly cross-examined the State’s witnesses. Defense counsel elected not to have defendant in court for the victim’s testimony, and to have him briefly brought in for identification only, because she was concerned he would have another outburst in front of the jury, which she thought would be detrimental to his case. All these actions indicate defense counsel competently and zealously represented defendant throughout all stages of the proceedings against defendant.

In the absence of an adequate showing that the court appointed attorney is inept or incompetent to represent the accused, the court cannot be called upon to appoint counsel other than the one originally appointed merely to please the desires of the indigent accused. State v. O’Neal, 501 So.2d 920, 928 (La.App. 2nd Cir.1987), writ denied, 505 So.2d 1139 (La.1987). Here, defendant failed to make the requisite showing that appointed counsel was incompetent. Based on the record, we cannot say the trial court abused its discretion in refusing to appoint defendant another attorney at the time the request was made.

Defendant further seems to suggest he received ineffective assistance of counsel because defense counsel never discussed his defense with him.

|1BA 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 of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that: (1) his attorney’s performance was deficient; and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Id. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The Sixth Amendment does not guarantee a defendant errorless counsel or counsel judged ineffective by hindsight. 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, citing State v. LaCaze, 99-584 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). Ineffective assistance claims are assessed on the facts of the particular case as seen from the counsel’s perspective at the time. As such, there is a strong presumption that counsel’s conduct will fall within the wide range of reasonable professional assistance. Id.

An ineffective assistance of counsel claim is most appropriately addi'essed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. An exception to the rule, however, is when the record fully discloses the evidence necessary to decide the issue and the interest of judicial economy warrants consideration on direct appeal. Id.

We find the issue of ineffective assistance of counsel cannot properly be determined on appeal from this record. The only thing before us is defendant’s |lf)self-serving statements that his counsel failed to discuss his defense with him prior to trial. Defendant’s remedy is through post-conviction relief in the trial court where the quality of the attorney’s assistance can be fully developed and explored.

ERRORS PATENT

Pursuant to La.C.Cr.P. art. 920, the record was reviewed for errors patent. We first note the trial court failed to impose the mandatory fine on Count 2 of not less than $1,000 nor more than $5,000 as required by La. R.S. 14:95.1(B). This Court has authority to correct an illegally lenient sentence under La.C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. We note defendant’s indigent status in this case and, thus, decline to correct his illegally lenient sentence by remanding for imposition of the mandatory fine. See State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376.

Second, neither the sentencing transcript nor the original commitment reflects the trial judge advised defendant of the two-year prescriptive period for filing an application for post-conviction relief under La.C.Cr.P. art. 930.8. Therefore, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-248 (La.10/30/09), 21 So.3d 272.

DECREE

For the reasons stated herein, defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED

      . The bill of information also charged co-defendant, Michael Collier, with armed robbery with a gun. Defendant filed a motion to sever the parties for trial, which was granted.

      . Defendant’s multiple offender proceedings and adjudication are not part of this appeal.