source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Denna L. DECUIR.
    No. 10-1112.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Roger P. Hamilton, Jr., Assistant District Attorney, Fifteenth Judicial District, Abbeville, LA, for Appellee, State of Louisiana.
    J. Clay LeJeune, Attorney at Law, Crowley, LA, for Defendant/Appellant, Denna Decuir.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

_jjThe defendant, Denna Decuir, appeals the thirty-five year sentence imposed for her conviction of the offense of manslaughter, a violation of La.R.S. 14:31. For the following reasons, we affirm the sentence in all respects but remand the matter to the trial court with instructions to inform the defendant of the appropriate time limitation for applying for post-conviction relief pursuant to La.Code Crim.P. art. 930.8.

The facts giving rise to this prosecution are not in dispute. On January 21, 2009, the defendant waited until her husband, Milton Decuir, fell asleep and then shot him in the head seven times. On February 10, 2009, a grand jury indicted her for the offense of second degree murder, a violation of La.R.S. 14:30.1. Thereafter, on January 11, 2010, the defendant entered into a plea agreement with the State of Louisiana (state) wherein she agreed to plead guilty to the reduced charge of manslaughter. The defendant entered this plea without any promise of a particular sentence.

After the completion of a June 4, 2010 sentencing hearing, the trial court sentenced the defendant to serve thirty-five years at hard labor. Thereafter, the defendant filed a motion for reconsideration of the sentence, which the trial court denied. When the trial court denied a subsequently filed motion for new trial, the defendant perfected this appeal. In her appeal, she raises five assignments of error:

1. The trial court erred in failing to particularize the sentence and comply with La.Code Crim.P. art. 894.1.
2. The trial court erred in imposing a sentence which was excessive considering the factual circumstances and history of abuse between the appellant and the victim in this matter.
3. The trial court erred in failing to allow the defendant to present additional witnesses at the sentencing hearing.
4. The trial court erred in failing to grant a new trial to allow the evaluation and production of a witness who could have evaluated |2the defendant’s mental condition at the time of the commission of the offense. The record reflects that the court failed to allow her to be examined by a psychological expert to determine her mental state at the time of commission of the crime and to establish the effect and mitigating circumstances which the pattern of abuse suffered by her had on her mental competency.
5. The trial court erred in limiting the defendant to two years from the date of the sentence to make a claim for post conviction relief where the time limitation should have run from two years from the date that the sentence became final.

Assignment of Error Number One

In complaining that the trial court erred in failing to particularize her sentence, the defendant’s basic argument is that the trial court sentenced her as if she had committed premeditated murder rather than manslaughter. She asserts that the trial court did so by failing to set forth a sufficient factual basis for her sentence and failing to give adequate consideration to the guidelines set forth in La.Code Crim.P. art. 894.1.

Louisiana Code of Criminal Procedure Article 894.1 contains a series of factors to be considered by the trial court in sentencing a defendant. In considering these sentencing guidelines, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. Code Crim.P. art. 894.1(C). However, to comply with La.Code Crim.P. art. 894.1(C), the trial court “need not articulate every-circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483. Still, the record should establish that the trial court adequately considered the codal guidelines in particularizing a defendant’s sentence. Id. That is to say, “the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1.” State v. Ellis, 42,520, p. 23 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, 152 writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dallas, 36,397 (La.App.2d Cir.11/6/02), 830 So.2d 1113. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Strange, 28,466 (La.App.2d Cir. 6/26/96), 677 So.2d 587; State v. Hudgins, [519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (1988) ].

State v. Scott, 36,763, p. 3 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180, 1182. However, “[t]here is no requirement that specific matters be given any particular weight at sentencing.” Ellis, 966 So.2d at 153.

Despite the mandates of La.Code Crim.P. art. 894.1, our courts have held that:

[F]ailure to comply with article 894.1 does not automatically render a sentence invalid. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Delaughter, 29,974 (La.App.2d Cir.12/10/97), 703 So.2d 1364, writ denied, 98-0018 (La.5/1/98), 805 So.2d 201, 1998 WL 234691. The question is whether the record presented is sufficient to demonstrate that the trial court did not abuse its discretion. State v. Davis, 448 So.2d 645 (La.1984).

State v. Smith, 34,325, p. 2 (La.App. 2 Cir. 12/20/00), 775 So.2d 640, 642. Sentences also will not be overturned for failure to comply with statutory guidelines where the sentencing court implicitly considered the factors set forth in La.Code Crim.P. art. 894.1. State v. Thibodeaux, 502 So.2d 296, 298 (La.App. 3 Cir.), writ denied, 505 So.2d 1140 (La.1987).

At the June 4, 2010 sentencing hearing, the trial court heard the testimony of a number of witnesses, including the defendant. The evidence presented at that hearing describes an extended marital relationship that, in the best light, can only be | ^described as dysfunctional — and in the worst light, as violent beyond imagination.

The defendant testified that beginning six months after her 1984 marriage to the victim, he began abusing her. The first instance occurred when he came home from work intoxicated, threw her to the ground, and began kicking and hitting her. At the time, she was pregnant with their first child, Kasha, and she claims she used a metal trash can to shield her stomach from the blows inflicted by her husband. Things did not get any better in the marriage after this rocky start. The defendant described incident after incident of domestic violence toward her, ending in the shooting incident of January 21, 2009. These included threats and physical violence by her husband that occurred at their home, at the home of others, and at her various workplaces. Often these incidents involved the use of a weapon by her husband. Just some of the examples testified to by the defendant included a time when her husband set fire to all of her clothes, including her work uniforms, in the backyard; and times when he locked her outside of her home in the winter. Almost all of these altercations involved the victim’s abuse of alcohol.

Seldom were law enforcement personnel called to respond to the incidents of violence, but when called the general result was that they restored order and no one pressed charges. When arrests were made, the charges were often dropped. The defendant’s explanation was that when she pressed charges or sought restraining orders, her husband threatened her and she would dismiss everything out of fear.

| BIn 1987, the defendant became pregnant again, but claims she suffered a miscarriage after a physical attack by her husband. Not long thereafter, she became pregnant again and subsequently gave birth to her daughter, Shena. According to the defendant, she continued to work on her marriage despite the continuing violence and dysfunctional relationship.

The catalyst which began the final spiral downward seems to have occurred in 2007 when Shena gave birth. Soon after the child’s birth, Shena and the baby moved into her parents’ home. During that same time, the defendant took employment in Mississippi and was gone from the home most of the time, but was constantly in contact with her daughter. According to the defendant, her husband’s violent propensities then turned to Shena and the child.

In 2008, the defendant began employment in Texas, but nothing changed on the home front. She testified that at 7:00 a.m. on January 21, 2009, she telephoned her Louisiana home to speak to Shena. However, she spoke to her husband instead and was informed that Shena was still asleep. According to the defendant, the victim sounded as if he had already been drinking. She telephoned a number of times that morning because she wanted to remind Shena that the child had an appointment that should not be missed. Shena and her father then became involved in an altercation that apparently arose over the telephone conversations. The victim then telephoned the defendant and threatened Shena, and the defendant responded by telling Shena to pack some clothes and leave.

The defendant received a telephone call from her husband at approximately 6:00 p.m. that same day. According to the defendant, her husband was still angry over the altercation of that morning, threatened Shena, and asked for money. | fiConcerned with Shena’s safety, the defendant immediately drove from Texas to her Vermilion Parish home.

According to the defendant, her husband was standing by his truck when she drove up to their home. He then went inside, returned with his rifle, and threatened her. Both the defendant and the victim ultimately went into the house, where the threats and complaints from the victim continued. The defendant testified that while inside the house, her husband held the rifle to her nose, threatened to break her neck, and told her that he was going to “spit down [her] throat like [her] guts were on fire.” He ultimately set the rifle down and retreated to the bedroom, still cursing and threatening everyone. The defendant testified that, at this point, her mind went blank and she remembers nothing that happened thereafter — not even her return trip to Texas that evening.

Detective Kim Verrett of the Vermilion Parish Sheriffs Office testified at the request of the defendant and presented a consistent history of complaints against the victim for violent behavior beginning in 1999. Of the thirteen documented complaints between 1999 and January of 2009, some involved direct altercations between the defendant and her husband, but others were nothing more than fearful expressions by the defendant of what her husband might do.

Sami Riley, who is the executive director of Chez Hope Center, a family violence crisis center in Franklin, Louisiana, also testified at the request of the defendant. In counseling with the defendant, Ms. Riley instructed her to write every incident she could remember on index cards. According to Ms. Riley, this exercise produced seventy such cards. Her evaluation of the events described on the cards, 17together with her independent research into the available police reports and court filings, caused Ms. Riley to conclude that the defendant’s situation was one of severe domestic violence with “red flag factors” common to all fatal domestic abuse cases.

She testified that her research indicated that the defendant left her husband at least nine times during the marriage, but only filed divorce pleadings once and always reconciled with him. According to Ms. Riley, physical separation periods are the most dangerous times for an abused spouse and are usually when fatalities occur. In Ms. Riley’s opinion, women have been taught that it is their responsibility “to fix the marriages, to fix the problems, take care of the family, [and] take care of the children,” and that the average battered woman leaves the relationship approximately seven times. Additionally, the average battered woman does not necessarily want their abuser to go to jail — she simply wants someone to make him stop abusing her. Finally, Falon Decuir Urie-gas, the defendant’s oldest daughter, testified at the sentencing hearing on behalf of her mother. Her initial recollection of the marriage relationship between her mother and adopted father supported the continuing turmoil testified to by her mother.

Despite this picture of a one-sided violent relationship painted by the defendant, other evidence reflected a different family situation. The defendant acknowledged that in 1990 she had shot her husband during one of the altercations. She explained that her husband had gone to bed that evening in a very intoxicated condition and, when she tried to wake him for dinner, he grabbed her by the hair and pulled her around the bedroom. He then locked her outside and, when Falon unlocked the door for her, she was met by her husband, who was armed with a rifle. As the altercation continued, her husband ultimately put down the rifle. She grabbed |sthe weapon and pointed it at her husband, and, when he attempted to take it away from her, it discharged, wounding him. Law enforcement personnel questioned her concerning the incident, but charges were never filed against her. On another occasion, law enforcement personnel arrested the defendant for slapping her husband during an argument.

The record also reflects that, on one occasion, the victim filed a petition to terminate the marital relationship and, in that petition, alleged as grounds for relief that the defendant had violently assaulted him. Specifically, he alleged that the defendant had physically scratched him to the extent that she had scarred his face; that she obsessed over money; and that she constantly criticized and taunted him, suggesting she could find someone better to care for her.

The defendant does not deny shooting her husband and does not deny disposing of the weapon used to shoot him. However, she maintains that she has no memory of the shooting or the events thereafter and does not know the location of the murder weapon. She acknowledges that shooting her husband was wrong and that she knew the difference between right and wrong at the time she shot her husband.

Shena had actually been the first to testify in the sentencing hearing, and expressed her feeling of deep loss for her father. Initially, she vaguely asserted that her mother’s actions were intentional and certainly not in self defense. After listening to the other testimony, she requested permission to again address the trial court, and the trial court granted her request. When she addressed the trial court this second time, she questioned her mother’s version of the events of January 21, 2009, 19mentioned other instances wherein her mother was the aggressor, and took her sisters to task for not testifying that there were two sides to the maiTiage problems. Shena suggested that her mother was manipulative and “evil,” and that the tears she shed in coui't were not tears of despair as she would have the trial court to believe.

When questioned fui'ther by the trial court concerning Shena’s statement, Kasha acknowledged the family problems were mutual. Concerning a particular incident testified to by Shena involving a shovel handle, Kasha acknowledged that she saw her mother walk into the living room and hit her father over the head with the handle. According to both Shena and Kasha, their father sustained a severe cut on his head as a result of the attack. Kasha also acknowledged that she had heard her mother threaten her father often, and that her mother would often tell her husband that “I can put a bullet in your head right now.”

Upon completion of the testimony and argument of counsel, the trial court stated the following in sentencing the defendant:

First of all, Ms. Decuir, you were given a tremendous break by the District Attorney by reducing the charge from second degree murder, where you would have served a life sentence without benefit if convicted of that, to manslaughter and then punting this matter to me.
You claim you were abused, but it was obvious from things that I’ve heard and things that I’ve read, that the abuse went both ways. You shot him on more than one occasion. You were arrested for domestic violence. This wasn’t your first brush with the law.
Either of you, yourself or Mr. Decuir, could have easily removed yourself from this situation at any time. When you were in Mississippi, you said he didn’t know where you were. He could have never found you. You could have stayed there. And you said, ‘Yes, but he calls home.” Well, get a different phone number.
Some of your own children want to see you appropriately punished.
Mr. Decuir asked you on several occasions to borrow money for his alleged drug habit[,] and you refused to give it to him. But he didn’t beat you up on those occasions. You didn’t testify to that nor did anyone. That doesn’t show me that you were afraid of him in any way.
This was a deliberate premeditated murder. You drove hours from Texas over here all the time with the intent to commit murder. Then you drove back after the murder, woke up the next morning and went to work like nothing happened. You showed no remorse except today in the courtroom for the first time.
You tried to cover up or lie about the crime when you were first interviewed by the sheriffs office when you found out that they had records that you were — proved you to be lying and you finally confessed. But if they wouldn’t have had that, you’d still be saying, “I didn’t do it.”
The maximum sentence you can receive — another thing I’d like to point out. Shena allegedly spit on him one time. But there were no allegations that he did anything to her physically.
You were aware of the battered women’s shelters. You knew there were places to go. The defendant had filed for separation on one occasion alleging domestic violence on your part.
The maximum sentence is forty (40) years for manslaughter. However, I’m going to take into account that the District Attorney thought it appropriate to reduce the charge. I’m assuming they did it for a good reason.
I’m also going to take into account the number of people that testified on your behalf and wrote letters on your behalf asking for leniency. The most leniency, however, that I can see that I can give you with a good conscience, is five (5) years of leniency, which means that I hereby sentence you to thirty-five (35) years at hard labor.

Immediately before the trial court pronounced sentence and gave its reasons for the sentence imposed, both the prosecutor and the defense counsel were given an opportunity to summarize their individual positions concerning the sentencing process. The very first thing the prosecutor did was to refer to La.Code Crim.P. art. |n894.1 and suggest to the trial court that the defendant was in need of correctional treatment which could best be provided by a hard labor sentence, and that any lesser sentence would deprecate the seriousness of the offense. La.Code Crim.P. art. 894.1(A). Additionally, all those factors suggested in Scott, 836 So.2d 1180 (personal history, prior criminal record, serious of the offense, and the likelihood of rehabilitation), were before the trial court and either expressly or implicitly considered.

Considering the extensive record created at the sentencing hearing and the trial court’s reasons for imposing the thirty-five year sentence, we conclude that there is an adequate basis for this court to review whether or not the penalty imposed constituted an abuse of the sentencing court’s discretion. Therefore, we find no merit in this assignment of error.

Assignment of Error Number Two

In this assignment of error, the defendant asserts that the trial court imposed an excessive sentence “considering the factual circumstances and history of abuse between the appellant and the victim.” Specifically, she asserts that she is a forty-four-year-old mother who has supported her family through a life of abuse; that this is, her first felony offense; and that the trial court failed to give adequate weight to the mitigating circumstances in this case. Therefore, she asserts, “[t]he thirty-five year sentence is nothing more than a needless imposition of pain and suffering as it makes no measurable contribution to acceptable goals of punishment.”

The law is well settled concerning the standard to be used in reviewing excessive sentence claims:

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

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

The maximum incarceration sentence that may be imposed on someone convicted of having committed manslaughter is forty years at hard labor. La,R.S. 14:31(33). That being the case, the defendant’s thirty-five-year sentence falls within the statutory sentencing range. However, even when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:

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

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. Still, “the trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1 [;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

A decision on point with the matter now before us is State v. Russell, 42,479 (La. App. 2 Cir. 9/26/07), 966 So.2d 154, writ denied, 07-2069 (La.3/7/08), 977 So.2d 897. In that case, the defendant shot his stepfather twice in the head after an argument. The argument began when the defendant confronted his stepfather about his suspicions that the stepfather had been inappropriate with one of the defendant’s children, and the defendant claimed the shooting was in self-defense because his stepfather had been approaching him with a machete at the time the defendant shot him. After the shooting, the defendant concealed his actions by burying the victim’s body, by tidying the site, by burning the victim’s personal effects, and by lying about his stepfather’s whereabouts. The defendant was convicted of manslaughter and sentenced to forty years at hard labor.

The defendant in Russell asserted on appeal that his sentence was excessive. Finding that the trial court had considered the violent nature of the offense, the defendant’s deliberate creation of the risk of death or great bodily harm, the use of a dangerous weapon, the permanent injury to the victim, the pattern of the bullets (two in the head with one being a contact shot), and the defendant’s attempts to conceal the evidence, the second circuit affirmed the sentence imposed. Noting that the 114penalty for second degree murder was life imprisonment, the second circuit found no abuse of the trial court’s sentencing discretion.

As in Russell, the trial court in the instant case clearly stated that this was a case of premeditated murder rather than manslaughter. The record supports the trial court’s conclusion; it reflects a history of mutual physical abuse between the defendant and her husband, including a prior instance when the defendant shot her husband and another previous incident when the defendant attacked him in his sleep. Moreover, the record also reflects that the defendant frequently threatened to shoot her husband in the head. Additionally, by entering into the plea agreement the defendant reduced her sentencing exposure from life imprisonment to forty years. Because we conclude thirty-five years at hard labor in the instant case does not constitute an abuse of discretion and is neither shocking nor fails to make a meaningful contribution to acceptable penal goals, we reject this assignment of error.

Assignment of Error Number Three

In this assignment of error, the defendant asserts that the trial court erred in not allowing her to call additional witnesses at the sentencing hearing. Specifically, she asserts she was denied the right to present expert testimony concerning the psychological impact caused by years of domestic abuse. However, this issue did not arise at the sentencing hearing but was first mentioned in her motion to reconsider sentence. As previously stated, the trial court rejected that motion. We find no error in the trial court’s ruling.

No full scale evidentiary hearing is required at sentencing in a non capital case. State v. Bosworth, 860 So.2d 173 (La.1978). However, a sentencing must be conducted in open court [La.C.Cr.P. Art. 871] and in compliance with La. C.Cr.P. Art. 894.1. Upon proper request and appropriate allegation in order to avoid an | ^excessive sentence improperly resulting from materially false information, a defendant is entitled to an opportunity to deny or explain prejudicial or derogatory information made available to the sentencing judge. State v. Trahan, 367 So.2d 752 (La.1978). See also State v. Telsee, 388 So.2d 747 (La.1980).

State v. Collinsworth, 452 So.2d 285, 287-88 (La.App. 2 Cir.1984) (alteration in original).

The record establishes, and the defendant does not dispute, the fact that she was not deprived of an opportunity to rebut false and prejudicial information at the sentencing hearing. She testified extensively at that hearing and presented the testimony of Ms. Riley and others in support of her claims. The defendant did not request that the record be reopened for additional testimony until after sentencing, and does not assert that, prior to sentencing, she was unaware such information would be relevant. Furthermore, on appeal the defense cites no statute, custom, or jurisprudence in support of her position.

We find this assignment of error to be without merit.

Assignment of Error Number Four

In this assignment of error, the defendant contends the trial court erred in denying her motion for new trial. Specifically, she asserts that were a new trial granted, she would have the opportunity to be evaluated by a psychological expert who could then provide an opinion as to her mental condition at the time of the offense.

The defendant bases her request for a new trial on La.Code Crim.P. art. 851(3), which provides that the trial court “shall grant a new trial whenever:”

11fiNew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guiltyf.]

With regard to the content of a defendant’s motion for new trial based on newly discovered evidence, La.Code Crim.P. art. 854 provides:

A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.

The defendant’s motion for new trial did not comply with La.Code Crim.P. art. 854 as it did not contain any of the necessary information listed therein.

Because the defendant failed to allege an adequate basis for a new trial in her motion for new trial, the trial court did not abuse its discretion in denying the motion. Furthermore, the time to file a motion seeking withdrawal of a guilty plea is prior to sentencing. La. Code Crim.P. art. 559. We find no merit in this assignment of error.

Assignment of Error Number Five

In her final assignment of error, the defendant asserts that the trial court erred in limiting her to two years from the date she was sentenced in which to file claims for post-conviction relief. In its brief to this court, the state agrees with the |17defendant’s position on this point.

The prescriptive period for filing for post-conviction relief is two years from the date a defendant’s conviction becomes final under the provisions of La.Code Crim.P. arts. 914 and 922, not two years from the date of sentencing. La.Code Crim.P. art. 930.8. Thus, it is necessary that we remand this matter to the trial court and direct the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion, and to file written proof that the defendant received the notice in the record of the proceedings. 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.

DISPOSITION

We affirm the defendant’s sentence in all respects. We remand the matter to the trial court with instructions to the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending the appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . The defendant had a child, Falon Langli-nais, by a previous relationship. After she married the victim, he adopted the child as his own.

      . The defendant testified that these encounters often involved the children as well as family members of both the defendant and her husband. Additionally, she testified to the loss of a number of jobs because of the victim's interference with her employment relationships.

      .She claims that on one occasion the victim pushed her outside naked and locked the door.

      . Detective Verrett testified that he was aware complaints had been filed before 1999, but he had no documents to support the particulars of those complaints.

      . Specifically, Shena questioned why her father would be waiting with a weapon for her mother when he was not supposed to know she was coming; why her mother was worried about her [Shena] when her mother was the one who told her to leave; and why her mother followed her father into the house if he was armed with a weapon — especially given the history of violence her mother had testified to.

      . Shena spoke of numerous times when she heard her mother threaten her father and verbally abuse him.

      . Kasha thought it was a broomstick handle rather than a shovel handle.

      . In affirming the sentence, the second circuit further explained that the sentencing court’s remarks indicated it felt the jury had been greatly lenient in finding the defendant guilty of manslaughter instead of second degree murder.

      . In her motion before the trial court, the defendant also asserted in the alternative that she wanted the opportunity "to present additional evidence which was not or could not have been presented at [the] sentencing hearing.” We have already disposed of this issue.


author: SHANNON J. GREMILLION, Judge.

text:
    STATE of Louisiana v. Paxton Jules TRAHAN.
    No. 10-1150.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Michael Harson, District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Paxton Jules Trahan.
    Paxton Jules Trahan, Angola, LA, pro se.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   SHANNON J. GREMILLION, Judge.

| ,The Defendant, Paxton Jules Trahan, was charged with being a principal to the offense of second degree murder. It was alleged that Defendant kicked in the door of his father’s bedroom, and Brady Harrington shot and killed Defendant’s father, James Trahan. James’s body was subsequently burned and dumped in a river. Defendant plead not guilty. A jury returned a verdict of guilty as charged, and he was sentenced to serve life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence.

Defendant is now before this court asserting two assignments of error. He contends the trial court erred in denying his motion for mistrial, and the evidence was insufficient to support his conviction of second degree murder. We affirm.

SUFFICIENCY OF THE EVIDENCE

In his second assignment of error, Defendant contends the evidence presented at trial, when viewed in a light most favorable to the prosecution, was insufficient to support a conviction, of second degree murder.

We choose to address the second assignment first because when multiple issues are raised on appeal, and sufficiency of the evidence is one of the alleged errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992).

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 12p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

Defendant was convicted of second degree murder, which is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(A). “Specific intent may be established by the circumstances surrounding an accused’s actions. State v. Anderson, 98-492 (La.App. 3 Cir. 10/28/98), 721 So.2d 1006, writ denied, 98-2976 (La.3/19/99), 739 So.2d 781.” State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/06/10), 48 So.3d 1210, 1215.

[A]s stated by the Louisiana Supreme Court in State v. Hampton, 98-331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999):
A person may be convicted of an offense even if he has not personally fired the fatal shot. The law of principals states that all persons involved in the commission of a crime, whether present or absent, are equally culpable. See La.Rev.Stat. 14:24. However, the Defendant’s mere presence at the scene is not enough to “concern” an individual in the crime. State v. Schwander, 345 So.2d 1173, 1174-1175 (La.1977). A principal may be connected only to those crimes for which he has the requisite mental state. State v. Holmes, 388 So.2d 722 (La.1980); State v. McAllister, 366 So.2d 1340 (La.1978).

Id. at 1212.

Charges of obstruction of justice and accessory after the fact stemming from James’s murder were dismissed in exchange for Ethan Roy’s testimony. Roy testified that he was with Jordan Uriegas when Uriegas received a call from Brady Harrington. Harrington asked Roy and Uriegas to go to Defendant’s residence. The two complied |swith the request. Defendant, Harrington, Roy, Spencer Music, and Mason Bedgood later left the residence in Roy’s vehicle and went to eat burgers at Krystal in Lafayette. During the trip, Roy did not hear anyone speak about James, but there was a phone being passed around. Roy was shown photos of something burning and a body lying in the mud. Music and Bedgood were subsequently dropped off.

After the group returned to Defendant’s residence, Harrington told Roy that he killed James because he was a nuisance. Harrington then showed Roy the body, which was wrapped up outside. Roy and Harrington went back into the residence and, the two, along with Uriegas, discussed using Roy’s truck to dispose of the body. Defendant was present during the conversation, but said nothing.

Roy testified that Harrington subsequently tied up the body with extension cords and put it in the back of Roy’s truck. Harrington drove Roy’s vehicle to a secluded area, accompanied by Roy, Uriegas, and Defendant. Once at the location, Harrington and Uriegas took the body out of the vehicle and threw it over the side of a bridge. The group then went back to Defendant’s residence. Roy testified that Defendant did not assist in the disposal of the body or try to stop the two.

Once back at Defendant’s residence, the group sat around. Eventually, “they” started falling asleep, and Roy’s father called him to go back to work. Roy subsequently told his father what had occurred, and his father called the police. The next day, Roy spoke to police and brought them to the location where the body had been dumped.

Dane Allen was given immunity for his testimony. He testified that Harrington told him “they” shot James, and, while Defendant cleaned up the room, Harrington burned the body. Allen also testified that Harrington told him “Paxton kicked in the |4door and Brady did the work to [sic] him.” Allen further testified that he helped move the body because Harrington threatened him. Allen indicated that while he was helping Harrington, Defendant was inside the residence. Allen stated, “I’m not too sure what he was doing. I’m pretty sure he was cleaning up the rest of the room and stuff like that.” Allen testified that it smelled like bleach, and he had brought bleach to the residence at Defendant’s request a day or two before. He indicated Defendant needed the bleach to clean up after the dog.

Allen was then questioned as follows:

Q. Did somebody make a request of you to help move the body from the premises?
A. Yes, Brady did and Mason, Jordan, Ethan — I think that’s about it. I believe that’s it. And they were all there whenever they asked me if I could move it. I was like, no, you know, I didn’t want to bring it because I already knew about it and I didn’t want to have any more involvement than what I did. So I just told them no. And I figured they wouldn’t do me anything if somebody — if more people was [sic] there than just me, Brady and Paxton. So I waited and then — waited for a little bit and then left the house....

Mason Bedgood was charged with accessory after the fact relating to the murder of James. That charge was dismissed in exchange for his testimony. Bedgood testified that he first learned that a crime had been committed while on the way back from Krystal with Defendant, Roy, Harrington, Music, and Uriegas. Bedgood testified that Harrington initiated the conversation. Harrington stated, “Tell them what we done [sic] last night.” “[T]hen they said, ‘We shot J.P.’ ” Bedgood did not recall who made this remark. When asked why James was shot, Bedgood testified as follows:

To my understanding, there’s a bunch of different stories right now. But from that night — there was two (2) different stories that night. One of them it was because — I don’t know — I don’t remember. I know that at one point Paxton was saying that his dad was driving him 1 scrazy and everything he had [sic] his dad messed up and expected to live off of him for free and just a bum and everything.
And at one time, he would just get up and go for two (2) or three (3) years and come back and expect to do it again.

Harrington told Bedgood that Defendant kicked in the door, and Harrington shot James. Bedgood then testified that “[t]hey told me that they went in the room with some bleach or some Clorox ... and removed all the blood and stuff off the walls and put the body in the back yard with some matches and set it afire.” He further testified that, “[a] few of them” talked about getting chains and weights, wrapping the body in a blanket, and throwing it over the bridge. When Bed-good heard this, he requested to be dropped off. Bedgood and Music were subsequently dropped off. Bedgood testified that Harrington’s phone was passed around in the vehicle, and there were photos on the telephone of something on a bed with blood and a body on fire.

Bedgood was subsequently asked about his statement to police and whether Harrington actually related the events to him. In response, Bedgood said Harrington was talking and was the leader. Additionally, it was Harrington’s idea to tie up the body and dump it. Bedgood further testified that Defendant was present and did not say a word when Harrington said Defendant kicked the door in.

Lieutenant Jo Ann Mathiew testified that she interviewed Defendant. During that interview, Defendant stated that two to three nights before the interview, he, Harrington, and James were at his residence. Defendant and Harrington spoke about James bumming off them, and they were tired of it and upset. Lieutenant Mathiew also testified that Defendant said he and Harrington talked about killing James. Further, Defendant stated that there was a shotgun by the door and that Harrington | figot up and retrieved the shotgun, walked towards the room, and Defendant heard a gunshot. Harrington returned to the living room and put the shotgun back by the door. Defendant waited five to ten minutes and then went to see if Harrington had shot James. He then stated that Harrington had shot James. Defendant stated that half of James’s head had been blown off.

Lieutenant Mathiew testified that Harrington and Defendant subsequently went to sleep. The following day, the two cleaned up the room in which James had been shot. They took the body, the mattress it had been lying on, and the clothes in the closet to the back yard and tried to burn them. Roy later helped wrap the body in a blanket, load it, and dump it off Pine Island Road. They returned to the residence, and Defendant, along with Harrington and Roy, went to sleep. Defendant stated that he was scared, so he waited to go to sleep until after Harrington had done so. Defendant indicated he helped Harrington dispose of the body off Pine Island.

Defendant also informed Lieutenant Mathiew that a couple of years prior to his death, James went to Baton Rouge. Lieutenant Mathiew testified that Defendant was attempting to say that James disappeared as he had done in the past.

Sergeant Elliott Broussard’s testimony referenced a trial exhibit depicting the door jamb of the room where James was shot. Sergeant Broussard further testified that police could not determine who forced open the bedroom door. He opined the shotgun was fired from the entrance of the bedroom door. Douglas Lancon was accepted as an expert in firearms identification. He testified that the shell casing found at the scene was fired from the Mossberg Model 835 twelve gauge shotgun found at the residence.

Dr. Joel Carney was accepted as an expert in forensic pathology. Dr. Carney | performed an autopsy on James on April 14, 2008. Dr. Carney testified that the shotgun wound to James’s head caused extensive destruction from approximately the mid-nose up. The body also had advanced thermal injuries.

In brief to this court, Defendant asserts that Harrington shot James, and the State failed to prove he was a principal to that offense. The State contends Defendant had countless opportunities to contact police and failed to do so. His silence was merely an effort to cover up the crime and portray James’s disappearance as a repeat of his having done so in the past. The State also contends that Defendant’s statement that James was worthless; his speaking openly about his animosity toward and about killing James; his assistance in cleaning the crime scene, burning the body, transporting the body, and dumping the body; his knowledge of James’s disappearance several years prior to the offense and his comments about not missing him then; thinking people would believe James disappeared once again; and, the testimony of witnesses support the jury’s verdict.

Clearly, the jury believed the testimony indicating that Defendant discussed killing James; he kicked in the door of James’s room; Harrington shot James; Defendant cleaned up the room; during a trip to Lafayette, Harrington told others Defendant kicked in the door of James’s room; and, Defendant rode along when the body was dumped. This evidence supports Defendant’s conviction as a principal to second degree murder.

MISTRIAL

In his first assignment of error, Defendant contends the trial court erred in denying his Motion for Mistrial.

During rebuttal closing arguments, the State discussed the lack of DNA | sevidence then made the following remarks:

The way Mr. Guidry talked to /all, Paxton could have been the State’s best witness in the case against Brady. He probably would have been given a medal, even by the president. If he had been so distraught about his dad being killed, if he had taken some action, called the police, I would have had an eyewitness to a crime that he didn’t want to commit. That didn’t happen.

After those remarks, defense counsel moved for a mistrial, asserting the State mentioned the fact that Defendant did not testify. The State asserted it was speaking about Harrington’s case and did not say Defendant failed to testify. The trial court denied the motion for mistrial and said it would admonish the jury.

The trial court then made the following remarks to the jury:

Ladies and gentlemen, Mr. Ayo made a statement about the defendant would have been a good witness or the best witness in the trial against Brady Harrington. And the State is not allowed to mention to you that the defendant did not testify or should have testified or would have been a good witness in this trial.
So I don’t think what he said was in error, but I just want to tell you so there’s no confusion in your mind. That you can make no inference that the defendant should have testified in this case. And you’re to disregard any comment that the defendant would have been a good witness at all. Just disregard that, please. Proceed.

In its discussion of prosecutorial references to a defendant’s failure to testify in State v. Mitchell, 00-1399, pp. 4-5 (La.2/21/01), 779 So.2d 698, 701-02, the supreme court stated:

La.C.Cr.P. art. 770(3) provides that the trial court “shall ” declare a mistrial when the prosecutor “refers directly or indirectly to ... the failure of the defendant to testify in his own defense.... ” The purpose behind art. 770(3)’s prohibition against such prosecutorial comment is to protect the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf. State v. Fullilove, 389 So.2d 1282, 1283 (La.1980); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
“Direct” and “indirect” references to the defendant’s failure to 19take the stand are prohibited by article 770(3). State v. Johnson, 541 So.2d 818, 822 (La.1989). “When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared, and ‘it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence.’ ” Id. (citing Fullilove, 389 So.2d at 1284). When the reference to the defendant’s failure to take the stand is not direct, this Court will inquire into the remark’s “intended effect on the jury” in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from statements that are not (which are permissible, though not favored). Johnson, 541 So.2d at 822; Fullilove, 389 So.2d at 1284; State v. Jackson, 454 So.2d 116, 118 (La.1984). In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying. State v. Smith, 327 So.2d 355, 362 (La.1975) (on rehearing); State v. Reed, 284 So.2d 574, 576 (La.1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972).
There are indirect references which focus on, or are intended to focus on a defendant’s failure to testify. One such instance is when the defendant is the only witness who can rebut the state’s evidence. Such a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify and warrants a mistrial. State v. Perkins, 374 So.2d 1234, 1237 (La.1979); Fullilove, 389 So.2d at 1284; State v. Harvill, 403 So.2d 706, 711 (La.1981). Then, there are and can be indirect references which are not intended to focus on a defendant’s not testifying. One such frequently seen instance is a prosecutor’s emphasizing that the State’s evidence is unrebutted in a situation where there are witnesses other than the defendant who could testify on behalf of the defense, but have not. See, e.g., State v. Jackson, 454 So.2d 116, 118 (La.1984); State v. Smith, 433 So.2d 688, 697 (La.1983); State v. Latin, 412 So.2d 1357, 1363 (La.1982). Also “[statements in argument to the effect that there is no refuting evidence does not constitute an impermissible reference to the defendant’s failure to testify.” State v. Reed, 284 So.2d 574, 576 (La.1973) (citing State v. Cryer, 262 La. 575, 263 So.2d 895 (1972)).

In State v. Smith, 433 So.2d 688 (La.1983), the defendant argued the trial court erred in failing to grant his motion for mistrial based on alleged references by the State in its closing argument to the defendant’s failure to testify in his own behalf or to call witnesses in his own behalf. The defendant referenced the following passages from the State’s closing argument:

Now, after the bank is robbed they run outside carrying money | inbags, you remember. Jessie Lee Smith, according to all of the witnesses, of course, the only one testified was Leroy as far as what actually happened in the bank, as far as the criminals themselves were concerned, Leroy said that Jessie is out — out in the car waiting.
[HJave you see [sic] any evidence that will give you any reasonable doubt as to who [sic] that money got in Jessie’s apartment, in Jessie’s suit bag. Have you heard any evidence whatsoever as to how that money got in there if it wasn’t the way that everybody said it was, because of the bank robbery? In Jessie’s suit bag? How about the money that got in his wife’s purse, bait money? Have you heard any evidence, any testimony, any reasonable testimony that will give you some reasonable doubt as to how that money got in that purse. I’ll tell you how it got in the purse, he stole the money and he got his share and he gave some of the money to his wife. That’s how it got in there. Did Leroy Jackson, I mean Leroy King, the sixteen year old boy, come in here and give you an explanation. He was there. Did he come in here and tell you no, they never brought him that money, or no, I didn’t put that money order in the album. How about Jessie’s sisters from Magnolia, did they come up here and testify and tell you that he didn’t — he didn’t take the car that morning. I mean these are his sisters.
Don’t you think if they could say they would have taken the stand and said it. Did they come here and say no Jessie didn’t come and get my car and drive it to Magnolia, and no Jonah didn’t call me the next morning and say my — your brother committed an armed robbery and come get your car. You don’t think they would have called them to testify if — if that had been the case. They didn’t contradict any of Jonah’s story. Was there any testimony of witnesses placing this defendant ány other place other than being in Magnolia and at the Bank of — First State Bank of Plain Dealing at the time of the robbery? No.

Id. at 697.

The supreme court found the prosecutor’s comments were directed to the lack of evidence on the defendant’s behalf. The court noted that where the defendant himself is not the only witness who might take the stand to refute the State’s case, argument to the jury that the State’s presentation of the facts is uncontroverted does not focus the jury’s attention on the defendant’s failure to testify. The court further noted there were many witnesses the defendant could have called to refute the State’s lncase, and the State’s argument focused principally on the uncontroverted nature of its presentation of the facts. The court found that even if it were to assume, arguendo, that the State’s argument referred ambiguously to the defendant’s failure to testify, it was not plain from the record that the references, if any, were intended to focus the jury’s attention on the defendant’s failure to testify or present evidence on his behalf.

In the context of the State’s rebuttal argument, the comments by the State were a permissible comment on Defendant’s statement to police and the unrebut-ted evidence. They were not intended to call the jury’s attention to Defendant’s failure to testify in his own behalf. This assignment of error lacks merit.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Jeffery Lee GUILLORY.
    No. 10-1175.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Jeffery Lee Guillory.
    Michael Harson, District Attorney, Fifteenth Judicial District, Alan P. Haney, Assistant District Attorney, Lafayette, Louisiana, for Appellee, State of Louisiana.
    Jeffery Lee Guillory, Angola, Louisiana, In Proper Person.
    Court composed of JOHN D. SAUNDERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| Jn this criminal case, Defendant, Jeffery Lee Guillory, appeals his convictions by jury of attempted second degree murder and second degree robbery, alleging that the trial court erred in denying his motion to suppress. Defendant also appeals his sentences on both convictions, alleging excessive sentences. For the following reasons, we affirm Defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On May 20, 2008, the State filed a bill of information charging Defendant with one count of second degree robbery, a violation of La.R.S. 14:64.4, and two counts of unauthorized use of an access card, violations of La.R.S. 14:67.3. However, the State filed an amended bill of information on January 4, 2010, adding one count of attempted second degree murder, a violation of La. R.S. 14:27 and La.R.S. 14:30.1.

Defendant filed a motion to suppress which was heard and denied by the trial court on March 2, 2010. The State then opted to proceed against Defendant with the charges of attempted second degree murder and second degree robbery. After a jury trial, the' jury found Defendant guilty as charged on both counts.

Defendant filed a motion for new trial which was heard and denied by the trial court on March 15, 2010. The court then sentenced Defendant to fifty years at hard labor on his conviction of attempted seconcl degree murder and a concurrent term of forty years at hard labor on his conviction of second degree robbery.

Defendant appeals his convictions and sentences, assigning two errors through counsel and one error pro se. Defendant’s pro se error is included in the assignments of error by his counsel.

On December 29, 2007, the victim, Johnnie Martinez, was heading home on a local bus in Lafayette, Louisiana, after finishing a shift at her job. At approximately 125:55 p.m., she got off the bus and headed toward a wooded trail that led to a nearby Walmart. A male individual approached her and asked for bus fare. As she started to give him some change, he punched her and dragged her into the woods. The victim fought back, but the individual overpowered her. Her left eye began swelling shut, and she fell to the ground. After the individual delivered more punches to the victim, he choked her. The victim played dead, thinking and hoping the individual would stop beating her. The individual then left the scene with her purse, which contained cash and an ATM card.

After the victim was helped by a “good Samaritan,” she was taken to the hospital, and a police investigation ensued. Upon her release from the hospital, the victim realized her ATM card was being used. Police obtained surveillance footage from an ATM in Baton Rouge. A detective showed a still image from that footage to the victim, and she identified the man in the picture as her assailant. The man in the surveillance footage in Baton Rouge was Defendant. Later, she also identified Defendant in a photographic line-up.

ASSIGNMENTS OF ERROR

In brief, counsel for Defendant lists the following two assignments of error:

1. The Trial Court erred in denying Jeffery Lee Guillory’s Motion to Suppress Photographic Lineup.
2. The Trial Court erred in imposing excessive sentences.

Defendant submitted a pro se brief containing only one assignment of error, virtually the same error as that listed in Assignment of Error Number 1 by his appellate counsel. They will be addressed jointly as one assignment of error.

| ^ERRORS 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 find that there are two errors patent.

First, we note that the record indicates that Defendant was sentenced immediately after his motion for new trial was denied by the court. Louisiana Code of Criminal Procedure Article 873 requires that there be a twenty-four-hour delay between the denial of a motion for new trial and the imposition of sentence. However, defense counsel expressly waived the delay required by La.Code Crim.P. art. 873 when he announced that they were ready for sentencing. This court has found an express waiver occurs when defense counsel responds affirmatively when the trial court asks if he is ready for sentencing. See State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59.

Secondly, we note that Defendant was given incorrect information regarding the time limitation for filing an application for post-conviction relief. At sentencing, the trial court advised the Defendant, “You have two (2) years from this date, sir, to file any Post Conviction Relief Petition, the date that your conviction becomes final [sic].” Louisiana Code of Criminal Procedure Article 930.8 provides that Defendant has two years after the conviction and sentence become final to seek post-conviction relief. Therefore, we direct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NO. 1 (which includes Defendant’s pro se Assignment of Error)

In defense counsel’s brief and Defendant’s pro se brief, it is argued that the trial court erred by denying Defendant’s motion to suppress. Specifically, Defendant contends that the identification procedure was suggestive, and thus, there was a substantial likelihood of misidentifieation. He notes that the victim knew that the first photograph a detective showed her depicted someone who had used her ATM card. Further, Defendant argues that viewing the lone photograph in advance of the photographic line-up tainted the victim’s identification of his photograph in said line-up.

A trial court’s ruling on a motion to suppress will not be reversed absent an abuse of that discretion. State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert. denied, — U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

Louisiana courts have stated: “The display of a single photograph of defendant rather than an array of photographs depicting different individuals has repeatedly been held to be improper. State v. McLeland, 456 So.2d 633 (La.App. 2nd Cir.1984), writ denied, 461 So.2d 312 (La.1984).” State v. Hensley, 608 So.2d 664, 669 (La.App. 3 Cir.1992), writ denied, 613 So.2d 972 (La.1993). “The Supreme Court of the United States has noted that single photograph identifications should be viewed in general with suspicion. Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 970-71, 19 L.Ed.2d 1247 (1968).” State v. Martin, 595 So.2d 592, 595 (La.1992).

However, this is not simply a single-photograph identification case. In the instant case, the single-photograph identification was followed up with a subsequent photograph identification line-up. According to the facts in this case, the Lsingle-photograph identification does not necessarily invalidate the subsequent identification via the photograph line-up. Both parties discuss State v. Rosette, 94-1075 (La.App. 3 Cir. 3/22/95), 653 So.2d 80, which quoted the following language from another case:

Moreover, defendant would be entitled to no relief under the circumstances even if we were to accept as true his argument that the identification proce'dure was suggestive.
Assuming a suggestive identification procedure, courts must look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentifb cation. These factors were initially set out in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), and approved in [Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)]. They include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. 432 U.S. at 114, 97 S.Ct. at 2253. “Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Id.) see also State v. Lowenfield, 495 So.2d 1245 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986); State v. Prudholm, 446 So.2d 729 (La.1984); State v. Winn, 412 So.2d 1337 (La.1982).
State v. Martin, 595 So.2d 592, 595 (La.1992). In other words, even where an identification is considered suggestive it is usually still necessary to evaluate the likelihood of misidentifieation. It is only where the identification violates both of these tests that a defendant’s right to due process has been violated. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; State v. Guillot, [353 So.2d 1005, (La.1977)].

State v. Duncan, 93-1384, pp. 4-5 (La.App. 3 Cir. 4/6/94), 635 So.2d 653, 655-56, writ denied, 94-1067 (La.10/28/94), 644 So.2d 649.

The State argues that the single-photograph identification was not suggestive because the detective showed it to the victim for the sole purpose of determining ^whether the man in the photograph was authorized to use her ATM card. It also argues that the detective had to show the lone photograph to her for identification purposes because he did not know who the man in the picture was.

In this case, the victim had reported the crime, and the detective had obtained photographs of a man using her ATM card in Baton Rouge. Since the police knew a robbery had occurred, there was little chance that the man in the pictures was authorized to use the ATM card. The detective was also able to compose a six-photograph line-up within three hours of showing the single photograph to the victim, so there does not appear to be a compelling time element at issue. Also, the victim’s identification of the man in the picture as her attacker did little to actually identify him, as evidenced by the detective’s testimony in the following colloquy from the motion to suppress hearing shows:

Q. Okay. The ATM photo was shown first, and then at that point when you showed it to her and she identified that person in the photo as the person that attacked her, at that point did you know who the person was?
A. No.
Q. No, okay. How did you learn who this person was?
A. I left from her house and went to the Sheriffs Department, the Warrant Division, and I spoke with at that time [sic] Sgt. Dale Thomas. They know a lot of people. So I figured that was my best bet, to talk to him; showed [sic] it to him. He didn’t know who it was. He told me he would go to the shelters and get on the street and see if he could identify who that person was.
From there I went back to the police department, got up there and started showing the photo on the second floor, which is the detective floor, and Sgt. Cormier looked at it and told me that he had previously dealt with an individual who should have this information.
So I was like, okay. And he kind of gave me a little rundown. So I went back and pulled my file. When I pulled my file, I pulled a picture out that I had back then, placed it next to the photo of the ATM. It was 17him.
So at that time I was able to at least get a name and the information I need[ed; I] submitted the form immediately for the photo lineup, and that’s how I actually got his name and information.
Q. Now, are you aware of how these photo lineups are made? I mean, what’s the procedure in making it?
A. To my knowledge — I never put one together. But basically they take the information we give them on the form, that we submit, they pull that person. At that time the database goes through probably hundreds of thousands of people that were arrested with similar features; whether they’re bald, it’s going to be six (6) pictures of bald men. If they’re black, obviously they’ll be black; white, whatever; facial hair.
They try to match up five (5) other people to put in that lineup that are very similar to the person that you submit. And then we also can look at that lineup when we get there. And if we don’t like it, if it’s not close enough, you’ve got somebody you know that [sic] that’s going to make it difficult to have a good lineup, you can take them out[,] and they can put somebody else in there so to make it as close as possible.
Q. Okay. And as far as you know that was done; that’s what would have been done in this case.
A. Yes.
MR. HANEY: I have no further questions, Judge.
RECROSS-EXAMINATION
BY MR. MCCANN:
Q. Detective, would it be fair to say that instead of identifying the ATM photograph as the ATM photograph of a person that was using Ms. Martinez’s card, you could have said, “This is a generic photograph that I came in contact with. Does this person look familiar to you?”
Couldn’t you have done that?
A. Yeah, I guess I could have.
MR. MCCANN: Thank you very much.
That’s all I have, Your Honor.

At trial, the detective acknowledged that the procedure he used was “not a preferred | smethod.” Therefore, Defendant is correct in asserting investigators had resources available to compose a photograph line-up without resorting to the single-photograph identification.

However, even if the single-photograph identification prior to the photograph line-up was suggestive, the later identification may still be valid, as noted in Duncan. As previously discussed in Duncan, there are five factors listed for consideration in a determination of suggestive identification. Regarding the first factor listed in Duncan, the victim apparently had ample opportunity to view Defendant. At the motion hearing, the victim testified that Defendant punched her several times and that her left eye swelled shut; however, her right eye was fine. Defendant cites her trial testimony that her attention was not focused on her attacker when he first approached. However, the victim stated there was enough light to see him in the woods, and she “had also seen him real good” when they were fighting before he dragged her into the woods. However, it is not clear how long the offense lasted. At the suppression hearing, the victim stated it began at approximately 5:55 p.m. Defense counsel suggested the incident was over by 6:20 p.m.

Regarding the second factor in Duncan, i.e., the victim’s degree of attention, she testified that she made a conscious effort to observe and remember him. At trial, she explained that when she realized Defendant was pulling her into the woods, she “started really, really, really paying attention to his face.” Although Defendant argues the scene was dark, she testified it was light enough for her to see him clearly. Further, as mentioned earlier, she got a good look at him before he dragged her into the woods.

The third Duncan factor is accuracy of the prior identification. The victim | ¡described her attacker to police as being approximately five feet, eight inches tall, and between two hundred and twenty and two hundred and fifty pounds. However, she acknowledged not being good at estimating height or weight. She also stated that the robber had “droopy cheeks” with no facial hair. However, she did not mention the “droopy face” characteristic to Detective Rhodes in her initial statement to him. She also testified that during her prior art training, “one of the things [she] was best at was faces.” The investigator, Detective Rhodes, testified that he is five feet, eight inches tall and that Defendant is taller. After viewing a photograph of Defendant from the local sheriffs office, the detective acknowledged that identifying information included with the picture stated Defendant was six feet tall. The victim repeatedly described Defendant as having “droopy cheeks” much like a cartoon character. However, Defendant states that he had facial hair and contends that “[h]e does not have a ‘droopy5 face.” Having viewed the photos of Defendant introduced at the motion to suppress hearing, we find that Defendant could have easily been described as “sleepy-eyed,” and we note that his moustache is quite thin.

Defendant makes reference to the victim’s written statement wherein she had described her assailant as “nondescript.” However, we note that the victim explained that she meant no scars, birthmarks, or tattoos. Defendant also argues that there was a discrepancy between the victim’s description of Defendant’s clothing and the description given by another witness who testified he saw Defendant in the area; however, we find that that argument was made in the context of sufficiency of the evidence rather than admissibility.

In his pro se argument, Defendant contends that the victim was unsure whether the offender wore a tan jacket and gray shirt or vice versa. However, uncertainty on |insuch a point does not indicate the victim’s identification of Defendant’s face was doubtful. Also, the trial judge was able to see Defendant in person and, thus, was in a better position to evaluate the quality of the identification.

Regarding certainty, the fourth Duncan factor, the victim showed a high degree of certainty at the motion to suppress hearing and at trial. Detective Rhodes testified that she showed complete certainty when she identified the man using her ATM card as her attacker. He stated that she remained certain when she identified him in the photograph line-up.

With regard to the fifth and final Duncan factor, i.e., the time between the crime and the confrontation, we note that the crime occurred on December 29, 2007, and the photographic identifications occurred on January 7, 2008. Thus, the victim identified the picture of Defendant a little more than a week after the offense.

After a careful review of the record, after due consideration of the testimony of the witnesses relative to the photographic identifications, and after consideration of the five Duncan factors, we do not find that the trial court abused its discretion in denying Defendant’s motion to suppress. Thus, these assignments lack merit.

ASSIGNMENT OF ERROR NO. 2

In his final assignment of error, Defendant argues that his fifty-year sentence for attempted second degree murder and his forty year sentence for second degree robbery were excessive. He also argues that the trial court failed to consider mitigating circumstances as required by La.Code Crim.P. art. 894.1.

Defendant claims that he received the maximum terms on each conviction and that such terms were unconstitutional. However, the motion did not state exactly why the terms were unconstitutional; therefore, any claims not specified in his motion are h, barred by La. Code Crim.P. art. 881.1(E). Nevertheless, “in the interest of justice, this court has previously chosen to review such an assignment of error as a bare claim of excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La.11/22/06), 942 So.2d 552.” State v. Blue, 08-756, p. 3 (La.App. 3 Cir. 12/10/08) 998 So.2d 1242, 1244.

The analysis for excessive-sentence claims is settled:

This court has previously discussed the standard for reviewing excessive sentence claims:
[Louisiana Constitution Article] 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, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted)(second alteration in original). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).
In State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, the fifth circuit held that a reviewing court should consider three factors in reviewing sentences imposed by the trial court: (1) “the nature of the crime,” (2) “the nature and background of the offender, and” (3) “the sentence imposed for similar crimes by the same court and other courts.”

State v. Chaisson, 09-119, pp. 25-26 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, 1182-83.

With regard to maximum sentences, our courts have stated:

Generally, maximum penalties are reserved for the worst offenders and the worst offenses. State v. Lathers, 444 So.2d 96 (La.1983). Although obviously harsh, the present sentences appear warranted by the seriousness of the offenses, defendant’s ample criminal history, his propensity for recidivism and the very severe injuries caused. See, e.g., State v. Douglas, 389 So.2d 1263 (La.1980); State v. Proctor, 354 So.2d 488 (La.1977); State v. Wright, 535 So.2d 765 (La.App. 2d Cir.1988); State v. Weeks, 449 So.2d 1158 (La.App. 2d Cir.1984), all affirming maximum 99-year sentences for armed robbery. Similarly, note the affirmance of maximum 30-year sentences for aggravated burglary in State v. Howard, 414 So.2d 1210 (La.1982); State v. Lambert, 550 So.2d 847 (La.App. 2d Cir.1989); State v. Harden, 506 So.2d 1265 (La.App. 2d Cir.1987), [writ denied], 512 So.2d 438 (La.1987), and State v. Bibbens, 525 So.2d 255 (La.App. 1st Cir.1988). Likewise, see Proctor, supra, and State v. Washington, 550 So.2d 698 (La.App. 2d Cir.1989), both sustaining maximum 50-year sentences for attempted second degree murder.

State v. Grillette, 588 So.2d 1338, 1343 (La.App. 2 Cir.1991).

In the present case, the sentencing judge stated:

THE COURT:
Mr. Guillory, the crime that you perpetrated upon Ms. Martinez, who is the victim, was one that was heinous and cowardly. But for the fact that she pretended or played dead, you might still not have been apprehended.

At the hearing on the motion to reconsider sentence, defense counsel based his argument on what he considered as weak identification evidence offered at trial. Thus, the judge did not have occasion to give any further reasons for the sentence.

The trial court’s reasons for the sentences, although quite brief, fully support them. After punching her several times, Defendant choked the supine victim. To save herself, she simulated death. As the trial judge’s brief remarks at sentencing indicated, it is likely that the victim preserved her own life by pretending to die. The act of choking another person has been repeatedly recognized as indicative of a [ ^specific intent to kill. See, e.g., State v. Young, 00-1437 (La.11/28/01), 800 So.2d 847; State v. Ware, 07-968 (La.App. 3 Cir. 3/5/08), 980 So.2d 730, writ denied, 08-847 (La.10/31/08), 994 So.2d 534; State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753; State v. Bernard, 39,579 (La.App. 2 Cir. 4/6/05), 899 So.2d 818.

Thus, in the course of the second degree robbery, Defendant inflicted a brutal beating on the victim. Her left eye swelled shut, and she suffered a broken ankle bone. Defendant ended the incident by trying to kill the victim. The victim’s quick thinking prevented the incident from becoming a completed murder. For these reasons, we find that the sentences are not excessive.

DISPOSITION

Defendant’s convictions and sentences are affirmed. The trial court is instructed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Sherrel KING.
    No. 10-1215.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    Asa Skinner, District Attorney, Terry Lambright, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Sherrel King.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

| ] Defendant, Sherrel King, appeals the sentence imposed in connection with her conviction for distribution of cocaine. For the following reasons, we affirm the sentence.

FACTS

On December 22, 2008, Defendant sold crack cocaine to a confidential informant. She was charged by bill of information filed on August 5, 2009, with distribution of cocaine, in violation of La.R.S. 40:967, and entered a plea of not guilty on August 11, 2009. Jury selection began on December 7, 2009. Prior to the selection of all jurors, Defendant changed her plea to guilty. Defendant was sentenced on February 23, 2010, to serve ten years at hard labor, to run concurrently with any other sentence.

Defendant filed a pro se motion for reconsideration of sentence on February 25, 2010. The motion was denied on March 4, 2010. On April 20, 2010, Defendant filed a pro se motion for out-of-time appeal. Oh May 14, 2010, Defendant filed another pro se motion for reconsideration of sentence. The motion was denied on May 20, 2010. On May 20, 2010, Defendant filed a second motion for out-of-time appeal. On June 19, 2010, the trial court denied the first motion for out-of-time appeal. On August 31, 2010, the trial court granted the second motion for out-of-time appeal. On September 14, 2010, defense counsel filed a motion for appeal, which was subsequently granted.

Defendant is now before this court asserting one assignment of error. She contends that the trial court erred in imposing a hard labor sentence which terminated her drug treatment.

1,DISCUSSION

In her only assignment of error, Defendant contends that the trial court erred in imposing a hard labor sentence which terminated her drug treatment. Defendant asserts that she was near completion of her treatment plan and could have served a mixed sentence, which would have best served the public interest and her own by addressing what the trial court found was a serious drug addiction.

Defendant pled guilty to distribution of crack cocaine, which is punishable by a term of imprisonment from two to thirty years. La.R.S. 40:967. Defendant was sentenced to serve ten years at hard labor, to run concurrently with any other sentence.

To determine whether a sentence is constitutionally excessive, this court has stated that:

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

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

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

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

At the sentencing hearing, defense counsel informed the trial court that Defendant expressed a desire for the trial court to consider her as a candidate for drug court. Further, she had a certificate showing that she completed the program at Washington Street Center, an inpatient rehabilitation facility, and had been referred for additional rehabilitation at Freedom House in Baton Rouge. The State indicated that it was opposed to referring Defendant to drug court. When sentencing Defendant, the trial court indicated that Defendant was a fourth felony offender, and it considered her completion of rehabilitation.

Defendant contends that after she committed the offense, she went to inpatient treatment and successfully addressed her addiction, with the opportunity to complete treatment at Freedom House in Baton Rouge. She asserts that the trial court could have allowed her to complete treatment and then serve the two-year minimum with rigorous supervision after incarceration. However, Defendant did not mention drug treatment in either of her motions for reconsideration of sentence and did not object to the sentence at the sentencing hearing on the basis that she should be allowed to attend rehabilitation at Freedom House. Therefore, the issue is not properly before |4this court as a basis for excessiveness of sentence and will not be addressed by this court. La.Code Crim.P. art. 881.1.

Defendant also contends that the imposition of a prison term was excessive given the fact that she had treatment and was passing drug screens in advance of sentencing. However, the record reveals that Defendant is a fourth felony offender. Further, pursuant to her plea agreement, the State agreed not to charge her as a habitual offender and dismissed charges of theft in an amount greater than $300, four counts of theft in an amount greater than $500, conspiracy to distribute cocaine, and possession with intent to distribute cocaine. Based on Defendant’s criminal history and the benefit she received from the plea bargain, we find that her sentence is not excessive.

CONCLUSION

For these reasons, we affirm the sentence imposed by the trial court. AFFIRMED.