author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Edward Charles MORRIS.
    No. 10-1278.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      John Foster DeRosier, District Attorney, 14th Judicial District Court, Carla Sue Sigler, Assistant District Attorney, 14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee — State of Louisiana.
    Mark Owen Foster, Louisiana Appellate, Natchitoches, LA, for Defendant/Appellant — Edward Charles Morris.
    Edward Charles Morris, Cottonport, LA, Defendant Appellant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

| ^Edward Charles Morris shot his cousin three times at close range and subsequently pled guilty to the crime of attempted second degree murder, a violation of La. R.S. 14:27 and La.R.S. 14:30.1. The trial court imposed the maximum sentence of fifty years under La.R.S. 14:27. Mr. Morris appeals the sentence as excessive. For the reasons set forth below, we affirm the sentence of the trial court.

I.

ISSUES

We must decide whether the trial court abused its discretion in sentencing Mr. Morris to fifty years for attempted second degree murder.

II.

FACTS AND PROCEDURAL HISTORY

At a family gathering, while apparently arguing over family property taxes, Edward Charles Morris, age sixty-five, shot his first cousin, Johnny Levings, three times at close range, in the chest, knee, and groin area. An arrest warrant was issued, and Mr. Morris was charged with attempted second degree murder in violation of La.R.S. 14:30.1 and La.R.S. 14:27. He was also charged with illegal possession of stolen firearms in violation of La. R.S. 14:69.1, and with possession of a firearm by a person convicted of certain felonies in violation of La.R.S. 14:95.1.

Mr. Morris pled guilty to the charge of attempted second degree murder and waived his constitutional rights, including his right to a jury trial and an appeal of the conviction. The victim, Mr. Levings, survived the shooting but died of pneumonia prior to Mr. Morris’ sentencing. The trial court sentenced Mr. Morris to the maximum sentence of fifty years for attempted second degree murder, pursuant lato La.R.S. 14:27 and R.S. 14:30.1, and pursuant to the sentencing guidelines in La.Code Cr.P. art. 894.1. Mr. Morris appeals the sentence as excessive.

III.
STANDARD OF REVIEW
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. Salameh, 09-1422, p. 4 (La.App. 3 Cir. 5/5/10), 38 So.3d 568, 570 (quoting 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).

IV.

LAW AND DISCUSSION

Mr. Morris contends that the trial court erred in imposing the maximum sentence of fifty years because the record does not support the sentence. We disagree. Under La.R.S. 14:30.1, the crime of second degree murder is punishable “by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” La.R.S. 14:30.1(B).

| sUnder La.R.S. 14:27, which addresses punishment for attempted crimes, “[i]f the offense so attempted is punishable by death or life imprisonment, [the defendant] shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.” La.R.S. 14:27(D)(l)(a) (emphasis added).

Citing the supreme court in State v. Telsee, 425 So.2d 1251 (La.1983), the fifth circuit 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, provided three factors to be considered by a court in reviewing a trial judge’s sentencing discretion: (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.

At the hearing on the plea agreement, the trial court ordered a pre-sentence investigation report on Mr. Morris. The record reveals that Mr. Morris is a recidivist, with approximately forty charges in forty years. He was charged with manslaughter in 1966 and with first degree murder in 1979. The 1979 charge was amended to manslaughter; he was convicted and served eighteen years. The district attorney argued that Morris had killed three people prior to Mr. Levings, but the trial court considered only the convictions. Mr. Morris was arrested for numerous, and repeated, violent crimes between the ages of twenty-four and sixty-four, including aggravated battery with a dangerous weapon, armed robbery, fighting, theft, burglary, and aggravated assault. Mr. Morris was also arrested for illegal carrying of weapons, drunkenness, disturbing the peace, forgery, non-support, and numerous charges relating to possession of various drugs and controlled dangerous substances.

At Mr. Morris’ sentencing hearing, he asserted that the sentence was too long because of his age, that he was remorseful, that he had shot in self-defense because his cousin went for a gun in his pocket, and that someone else shot at him to Rkeep him from shooting his cousin. Under Li-sotta factor number (1), the trial court commented on the violent nature of the crime and the fact that Mr. Levings was now dead and might not have succumbed to pneumonia if he had not been in a weakened condition. Mr. Levings’ family reportedly thought that Mr. Morris should have been charged with murder. Under Lisotta factor number (2), the nature of the offender, the trial court considered Mr. Morris’ record of arrests and convictions, along with the sentencing guidelines and factors of Article 894.1 of the Louisiana Code of Criminal Procedure, stating as follows:

I have reviewed the presentence investigation report on Mr. Morris. I have reviewed his extensive criminal history dating back to 1966. There’s a lot of violence throughout the course of this criminal history in addition to burglaries and thefts and crimes involving weapons, including a manslaughter in 1979. He was actually found guilty by a jury in 1980. He was found guilty of manslaughter.
Mr. Morris was considered a fifth felony offender in light of all his four prior felonies.
Particularly what stands out most in my mind at this point is the manslaughter. He killed somebody and here we are again, shot somebody, shot his own cousin three times and when you compare that history with his version of what happened I just don’t find it to be credible.
Mr. Morris through his whole adult life apparently, from the 1960’s until the present time, has demonstrated that he could not handle being in society without being violent, without demonstrating his violent tendencies ... an indication to me that ... society needs to be protected from Mr. Morris and the fact that he’s 65 years old obviously hasn’t kept him from being mad and being violent because he was in his 60’s when he shot his cousin.
[H]e obviously is a dangerous person on the inside and cannot be trusted to ever be in society again. Otherwise we put people’s lives at risk. I would suggest no matter how |fiold he gets, and let me also say that I have considered the sentencing guidelines under article 894.1 the mitigating and aggravating factors, and I believe that with Mr. Morris’s fifth this being his fifth felony offense and at a minimum his second violent felony, if not his third or fourth, that he’s just a dangerous person and cannot be allowed to continue on in society. And because of that ... as you stand here before me you are a dangerous person, Mr. Morris, even though you may not agree with it. It sounds like you probably have justification in your mind for every crime you’ve committed since 1966, but I can tell you this life of crime that you’ve led demonstrates to me that you are a dangerous person and you shot your own cousin three times ... and I think you’re one of those people because of the life that you’ve led and the type of crimes that you’ve chosen to commit you’re one of those people that the maximum sentences is made for and I’m going to sentence you to serve 50 years with the Louisiana Department of Corrections without ... benefit of probation parole, or suspension of sentence.

The trial court referred to another dangerous defendant of the same age of sixty-five, to whom he had recently given the maximum sentence allowed, although it was clear that the trial court had individualized the fifty-year sentence to Mr. Morris.

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. Salameh, 38 So.3d at 570-71 (quoting 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).

Under Lisotta factor number (3), the sentences imposed for similar crimes by the same court and other courts, the fifty-year sentence that Mr. Morris received is not excessive as it is supported by the record and by the jurisprudence in |(ithis jurisdiction and in others. See State v. Sarpy, 10-700 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032 (sentence of fifty years in prison at hard labor imposed on the defendant on his conviction for attempted second-degree murder was not excessive, and, thus, did not violate the constitutional prohibition on cruel or excessive punishment); State v. Rhea, 03-1273 (La.App. 5 Cir. 2/23/04), 868 So.2d 863 (the trial court’s imposition of a fifty-year sentence on the defendant convicted of attempted second degree murder was not an abuse of discretion); State v. Ross, 42,399 (La.App. 2 Cir. 8/29/07), 965 So.2d 610 (sentence of fifty years at hard labor for attempted second degree murder conviction was not excessive; the trial court noted the pre-sentence investigation report, the serious physical injuries sustained by the victim, that the sentence did not shock our sense of justice; there was no abuse of discretion, considering the violent nature of the crime and the potential for multiple victims).

V.

CONCLUSION

For all of the above reasons, we affirm the sentence as imposed by the trial court upon Edward Charles Morris for attempted second degree murder pursuant to La. R.S. 14:30.1 and La.R.S. 14:27.

AFFIRMED.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    J & S RESOURCES, LLC v. R-4, LLC, et al.
    No. 10-1524.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      Glenn B. Foreman, Hoyt & Stanford, L.L.C., Lafayette, LA, for Defendant/Ap-pellee, R-4, LLC, Construction Resource Organization, LLC, Walt Durfey, Dustin Bradford.
    Joseph C. Giglio, Jr., John J. Fletcher, Liskow & Lewis, Lafayette, LA, for Plain-tiffAppellant, J & S Resources, LLC.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

| tPlaintiff, J & S Resources, LLC (“J & S”), filed suit against four defendants: R-4, LLC (“R-4”); Construction Resource Organization, LLC (“CRO”); Walt Durfey; and Dustin Bradford. Plaintiff sought to enjoin Defendants from competing against it in certain named parishes of the State of Louisiana. The suit was based upon the provisions of a written contract executed on December 31, 2009 by J & S, a licensed general contractor, and R-4 and CRO, who agreed to provide labor and equipment services for J & S. After a hearing, the trial court denied J & S’s request for an injunction, and this appeal ensued. For the following reasons, we affirm.

The dispute in this case focuses on the extent and validity of a non-compete provision included among the terms of an independent contractor agreement. The contract restricts R-4 and CRO from competing with J & S in the geographic region defined by the following contractual language:

“Geographic Region ” means and refers to the geographical area included in the following Parishes of the State of Louisiana: Calcasieu, Cameron, Iberia, La-fourche, St. Mary, Terrebonne, and Vermilion, Orleans, Jefferson, St. Bernard, Plaquemines, Lafayette, Jeff Davis, Evangeline, St. Landry as well as the rest of the Parishes within the State of Louisiana.

Admitting that the quoted provision is overly broad, J & S argues that the district court should have reformed the contract to include the specifically named parishes and excise the catch-all phrase which purports to include all “the rest of the Parishes within the State of Louisiana.” The original petition requests the court to reform the contract so as to include only twelve of the parishes named in the contract. In support of its position, J & S relies on La.Civ.Code art. 2034 which provides:

Nullity of a provision does not render the whole contract null unless, from the nature of the provision or the intention of the parties, it can be presumed that the contract would not have been made without the null provision.

^Additionally, La.R.S. 23:921 provides specifically for non-competition agreements under certain limited circumstances which include a time limitation of two years and geographical restrictions.

In oral reasons for judgment, the trial court rejected the argument advanced by J & S, pointing out the long-standing public policy which disfavors non-competition agreements:

[W]hen you look at the cases that have interpreted these contracts and have had to make decisions as to whether to enforce them, the longstanding policy has been to prohibit or severely restrict the agreements and to strictly construe them against the party seeking enforcement.
In this case, while I understand your argument, [plaintiffs counsel], that you believe the intent of the parties was to restrict coverage in those particular parishes and not in the entire state, that’s not what the agreement says.
And, based upon the decision that we talked about in SWAT 24 [Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294], as well as the Herff Jones [Inc. v. Girouard ] decision [07-393 (La.App. 3 Cir. 10/3/07), 966 So.2d 1127, writ denied, 07-2463, 07-2464 (La.2/15/08), 976 So.2d 185], I find that the Courts have recognized that, in order for a Court to reform or rewrite the contract, there must be some intent demonstrated by the parties that such would be permissible. And I think that’s in keeping not just with noncom-petition agreements but in all contractual cases.
[B]ecause the parties in this case did not provide for a severability agreement and because the provision of the contract which seeks to prohibit competition in the entire state is unenforceable, this Court feels that it cannot enforce this agreement.

The Defendants urge this court to adopt the reasoning of the trial court. They contend that the SWAT 24 case, as well as this court’s holding in Herff Jones, stand for the proposition that in the absence of a severability clause in a disputed contract, a court cannot reform the contract to make it comply with the law. In SWAT 2k, the |¾supreme court clearly indicated that without a severability clause it would not have approved of the lower court’s decision to allow reformation of the contract:

The language of the Agreement makes it possible to excise the offending language from the noncompetition clause without doing undue damage to the remainder of the provision. In light of this severability clause which reflects the parties’ intent and in accordance with this court’s decision in AMCOM [of Louisiana, Inc. v. Battson, 06-319 (La.3/29/96), 670 So.2d 1223], we, like the court of appeal below, will sever the null clause from the Agreement. Without the offending portion of the statute, [sic] there is nothing in the language of the Agreement that will be construed to prohibit the conduct of which SWAT complains. We therefore find the trial court correctly denied SWAT’s request for an injunction in this case.

P. 14, 808 So.2d at 309. (Footnote omitted.) Similarly, this court in Herff Jones rested its decision to reform a contract on the presence of a severability clause:

[T]he fact that the noncompetition provision was unenforceable did not render the 1993 Agreement totally void because it contained a severability clause. That being the ease, we must still consider the effect of the agreement after severing the noncompetition language. See SWAT 24, 808 So.2d 294.

P. 7, 966 So.2d at 1135.

In CBD Docusource, Inc. v. Franks, 06-167 (La.App. 5 Cir. 6/28/06), 934 So.2d 307, the fifth circuit was faced with the same argument presented herein, i.e., that a sev-erability clause is not necessary for the reformation of the contract at issue because the law permits reformation of an overly broad contractual provision. The court rejected the argument with the following explanation:

We acknowledge the cases cited by Docusource for the proposition that La. R.S. 23:921 itself contains a severability clause that permits reformation of a non-competition agreement that is over-broad. However, we interpret that statutory language differently, bearing in mind the public policy against non-competition agreements. In our view, the phrase “or provision thereof’ refers to a non-competition provision within a contract that deals with other matters, such as an overall employment agreement. The phrase allows for nullification of the offending non-competition provision without voiding the entire employment agreement. However, where the entire agreement is | concerned with non-competition, like the agreement in this case, we believe one portion cannot be severed from the remainder absent a specific severability clause. Accordingly, the trial court did not err in holding that the entire non-competition agreement is null and void.

P. 4, 934 So.2d at 311. (Footnote omitted.)

Federal courts interpreting Louisiana law have similarly rejected the argument that overly broad or otherwise invalid non-competition agreements should be routinely reformed based on statutory provisions. In Gearheard v. DePuy Orthopaedics, Inc., 1999 WL 638582, at *6, 1999 U.S. Dist. LEXIS 13042, at *18 (E.D.La. Aug. 19, 1999), the court cautioned against placing “courts in the business of either saving or writing a contract that is not generally favored by law.” See also Team Envtl. Servs., Inc. v. Addison, 2 F.3d 124 (5th Cir.1993); L & B Transport, LLC v. Beech, 568 F.Supp.2d 689 (M.D.La.2008).

By contrast, the jurisprudence relied upon by J & S in this case, including both Henderson Implement Co. v. Langley, 97-1197 (La.App. 3 Cir. 2/4/98), 707 So.2d 482, and Moores Pump and Supply, Inc. v. Laneaux, 98-1049 (La.App. 3 Cir. 2/3/99), 727 So.2d 695, pre-date the more recent case law, did not involve overly broad geographic provisions, and pertained to contracts which clearly evidenced the intent of the parties. Therefore, those cases are not dispositive of the controversy presented herein.

Based on the foregoing analysis, we find no error in the decision rendered by the trial court. Accordingly, the judgment before us is hereby affirmed. Costs of this appeal are assessed to the plaintiff, J & S Resources, LLC.

AFFIRMED.


text:
    STATE of Louisiana v. Steven REINHOLT.
    No. 10-1315.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Steven Reinholt.
    John F. DeRosier, District Attorney, Cynthia Killingsworth, First Assistant District Attorney, Lake Charles, LA, for Ap-pellee, State of Louisiana.
    Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

| defendant, Steven Reinholt, was convicted on three counts of aggravated rape, in violation of La.R.S. 14:42. The trial court sentenced him to three concurrent life terms to be served without benefit of parole, probation, or suspension of sentence. Defendant now appeals, arguing the evidence was insufficient to support his convictions.

FACTS

Defendant was a friend of the twelve-year-old victim’s mother, all of whom were residents of Vinton, Louisiana. One day during the summer of 2005, the victim, C.P., was at Defendant’s residence because the boy’s mother was at work. C.P. was lying on the couch watching television, and Defendant approached him and began rubbing his penis. Defendant then disrobed himself and the boy and sat on the victim’s penis and began moving up and down. A similar incident occurred on a different date. On a third occasion that summer, Defendant put the boy’s penis in his mouth.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant claims the evidence adduced at trial was insufficient to support his convictions for two of the counts against him, i.e., the ones that alleged anal rape. His assignment does not discuss the act of oral sex that he performed. He argues the rape statute does not proscribe his behavior regarding anal sex, as he is the person who was penetrated.

When trial evidence is alleged to be insufficient, the analysis is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a ^reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371. Defendant does not contest the facts of the case, thus his argument relies purely upon legal interpretation.

Defendant received three convictions for aggravated rape, which is defined by La. R.S. 14:42. As it did in 2005, the statute states, in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not he a defense.

The record shows that the victim was born on March 5, 1993. Therefore, when the offense occurred during the summer of 2005 he was twelve years old.

Rape is defined by La.R.S. 14:41, which had the same form in 2005:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

Is After citing the text of the two foregoing statutes, Defendant argues their language shows that the proscribed act of penetration must be performed by an offender on a victim. In this case, as already noted, the victim penetrated Defendant. He contends that reading the statutes to include an offender who is the person penetrated would be illogical. Specifically, he posits that such a reading would make “it illegal for anyone over the age of sixty-five to have sex, because that person [could not] give lawful consent to penetrate or be penetrated by anyone.” This argument is incorrect. Pursuant to La.R.S. 14:41(A), rape is a non-consensual sex act. In La.R.S. 14:42(A), aggravated rape is non-consensual sex with a person aged sixty-five or older. If the person consents, it is not rape at all, regardless of who performs penetration.

We have no case addressing Defendant’s penetration argument, but a logical argument can be made from the text of the relevant statutes. Reading La.R.S. 14:41 and La.R.S. 14:42 together in regard to anal sex reveals that the core proscription is against non-consensual intercourse. The term “intercourse” in this context clearly means “sexual relations,” which would encompass the actions of both parties. This point is illustrated by the Criminal Code’s treatment of consensual anal intercourse.

In 2005, consensual anal intercourse was prohibited by La.R.S. 14:89(A)(1) (emphasis added), which stated:

A. Crime against nature is:
(1)The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the cireum-stances | ¿described in R.S. 14:41, 14:42, 14:42.1 or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

Thus, in consensual situations, both the person penetrating and the person being penetrated were statutorily subject to punishment. When one party does not consent, or consent is. vitiated, the act is anal rape. Reading La.R.S. 14:41 and La.R.S. 14:42 in conjunction with La.R.S. 14:89, we conclude that non-consensual anal intercourse is anal rape, regardless of whether the offender penetrates the victim or manipulates the victim into penetrating the offender. Defendant’s sole assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant’s convictions are affirmed.

AFFIRMED.

      . Initials are being used to protect the victim’s identity, pursuant to La.R.S. 46:1844(W).

      . In the context of La.R.S. 14:42, consent may be vitiated due to violence by an offender or a victim's lack of mental capacity to consent. The present case falls into the latter category, pursuant to La.R.S. 14:42(A)(4).


author: KEATY, Judge.

text:
    STATE of Louisiana v. Arthur BIAS, Jr.
    No. 10-1440.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      J. Phil Haney, District Attorney, Walter J. Senette, Jr., Assistant District Attorney, Franklin, Louisiana, for State of Louisiana.
    Annette Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Arthur Bias, Jr.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 This is an appeal from an adjudication convicting Defendant of three crimes and sentencing him accordingly. Two questions are presented for our review. We are called upon to determine, first, whether Defendant’s waiver of his right to a jury trial was valid; and second, through three assignments of error, whether Defendant’s convictions, adjudication, and sentences should be affirmed. For the following reasons, we find that Defendant’s waiver of his right to jury trial was valid, and we affirm his convictions, adjudication, and sentences.

FACTS

At about 7:00 p.m. on November 1, 2009, Ryan Gary (Gary) was waiting for his cousin to pick him up near a convenience store in Iberia Parish. Defendant, Arthur Bias, Jr., whom Gary had met before, approached and told Gary to follow him to the side of the building. Once there, Defendant grabbed Gary by his jacket, slammed him against a nearby fence, and told him to empty his pockets. Gary complied, handing Defendant his cell phone. Defendant then demanded Gary’s jacket, shorts, and shoes. Gary surrendered his shorts to Defendant, but saw a chance to escape and did so before relinquishing any other items of clothing.

From a nearby parking lot, Gary saw Defendant put the shorts into his car and enter the convenience store. He then saw fighting take place in the store.

When Defendant entered the store, he approached the counter and asked for Seagram’s gin. The cashier, Yaser Obid, presented a bottle of gin and said to Defendant, “four thirty-three.” Defendant searched his pockets, and when it appeared he would produce no money, Yaser spoke Arabic to his brother, Ahmad Obid, advising him to station himself near the door in case Defendant stole the gin. 12Pefendant pulled out a firearm and shook it at Yaser. He put the weapon, pointed at Yaser, on the counter, and said, “Am I good for this gin?”

Apparently, Defendant then noticed Ahmad behind him because he put the weapon back into his pocket and walked toward Ahmad and the door. Once near the door, Defendant grabbed Ahmad’s shirt, and Ahmad told him to let go and leave the store. Defendant again drew his gun and this time pulled back the slide. Ahmad grabbed Defendant’s hand and a struggle ensued. Ahmad called for Yaser, who ran to them, pulled a gun from Ahmad’s waistband, and pointed it at Defendant’s head. The Obid brothers then subdued Defendant and held him until police arrived.

The police arrested Defendant and placed him in the back of the unit while the officer completed his investigation. Defendant became unresponsive and was taken to the hospital. At the hospital, Defendant told the doctor he had an undiagnosed sleeping disorder, though Michael Hardy, the nurse who completed Defendant’s intake sheet, testified that Defendant admitted to using drugs that day and that Defendant smelled like alcohol. No toxicology reports were ordered. Defendant was then transferred to jail for intake and booking.

PROCEDURAL HISTORY

On January 5, 2010, the State filed a bill of information charging Defendant with one count of simple robbery, a violation of La.R.S. 14:65; one count of attempted armed robbery, a violation of La.R.S. 14:27 and La.R.S. 14:64; and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1.

|3On April 5, 2010, Defendant filed a motion, through counsel, to waive trial by jury; the trial judge discussed the matter with Defendant in open court and signed the motion on the same date.

The trial court heard evidence against Defendant concerning the three charges pending against him and found Defendant guilty as charged on all three counts. At a sentencing hearing on April 9, 2010, the trial court sentenced Defendant to seven years at hard labor for simple robbery, fifteen years at hard labor for attempted armed robbery, and ten years at hard labor for possession of a firearm by a convicted felon. The two robbery-related sentences were ordered to be served consecutively, and the remaining sentence was concurrent to the others.

At the end of the sentencing hearing, the State filed a bill of information alleging that Defendant was a second habitual offender, pursuant to La.R.S. 15:529.1. On June 23, 2010, the trial court conducted a hearing and adjudicated Defendant as a second habitual offender. It then vacated Defendant’s original sentence for attempted armed robbery and re-sentenced him to thirty years at hard labor pursuant to the second-offender adjudication.

Defendant now appeals, assigning four errors: 1) the trial court erred in trying the case without a jury and without determining whether Defendant’s waiver of his right to a jury trial was knowingly and intelligently made; 2) the evidence introduced at trial was insufficient to prove all of the elements of attempted armed robbery beyond a reasonable doubt; 3) the trial court erred in applying the wrong burden of proof in its evaluation of the evidence submitted in support of Defendant’s affirmative defense of intoxication; and 4) the trial court erred in permitting the State to use the same predicate offenses in the habitual offender bill of information that |4were used to prove the underlying charge of possession of a firearm by a convicted felon.

DISCUSSION

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 is one error patent. The record reflects that Defendant was not advised of his right to remain silent, his right to a hearing, and his right to have the State prove its case before being adjudicated a habitual offender. See State v. Boutte, 09-404 (La.App. 3 Cir. 1/13/10), 27 So.3d 1111; State v. Coleman, 96-525 (La.App. 3 Cir. 10/7/98), 720 So.2d 381.

To determine whether this is an error that requires correction, we apply the harmless error analysis, promulgated by the supreme court in State v. Harris, 95-900 (La.5/19/95), 654 So.2d 680. The harmless error test requires that we determine whether the proceedings as a whole afforded Defendant fundamental fairness and due process of law. Id.; see also Boutte, 27 So.3d 1111.

In this case, the State charged Defendant as a habitual offender seeking to enhance his sentence for the conviction of attempted armed robbery and listing a simple robbery conviction from 2004 as the prior conviction. Although Defendant did not testify at the habitual offender hearing, the State introduced the file of the prior conviction from the district court. For proof of identity, the State introduced the pen pack from the prior conviction which included Defendant’s photograph. The State also asked the trial judge, who presided over the trial and the habitual offender proceeding, to take judicial notice of Defendant’s trial testimony in which he admitted lübeing convicted of the 2004 simple robbery. The trial judge took judicial notice of the Defendant’s trial testimony. The trial judge found Defendant to be a second offender.

The question is whether the trial court’s failure to advise Defendant of these rights is a harmless error. This court found, in State v. Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575, that the trial court’s failure to advise Defendant of his right to remain silent during the habitual offender proceeding was a harmless error. In Washington, the defendant was convicted of possession of cocaine. The State filed a habitual offender bill and after a habitual offender hearing, the defendant was found to be a third felony-offender and was sentenced to serve thirty years at hard labor without benefit of probation, parole, or suspension of sentence. On appeal, we recognized that the record did not establish that the trial court advised the defendant of his right to remain silent during the habitual offender proceeding. Applying the harmless error analysis, we held, in pertinent part:

The defendant neither acknowledged his prior offenses nor admitted the truth of the allegations contained in the habitual offender bill of information whereas the state presented the court with competent evidence as to the defendant’s identity and prior convictions. The state introduced a pen packet of the sentences that defendant had served for his two prior convictions. Deputy Shirley Green, an expert in fingerprint analysis, took the defendant’s fingerprints in court, compared them with the fingerprints included within the pen packet, and concluded that they matched. Additionally, the state asked the court to take judicial notice of the defendant’s testimony at his merit trial. The trial judge had also presided over defendant’s merit trial where the defendant admitted that he had been previously convicted of two burglaries in Mississippi. In a multiple offender proceeding, the trial judge has the right to take judicial notice of any prior proceeding of the same case over which he presided. State v. Martin, 400 So.2d 1063 (La.1981).
We conclude that the state presented sufficient competent evidence to adjudicate the defendant a third offense habitual offender | fisuch that if the defendant were not advised of his rights, the omission was merely harmless error.

Id. at 583.

In the instant case, the State introduced the file from Defendant’s 2004 conviction, including a pen pack that contained his photograph. Additionally, the trial court took judicial notice of Defendant’s admission at his merits trial that he had been convicted of simple robbery in 2004. Consequently, we find that the State presented sufficient evidence to prove that Defendant was a second offense habitual offender. The trial court’s omission in not advising Defendant of his rights is harmless error.

Waiver of Jury Trial

In this assignment of error, Defendant argues that the trial court failed to determine that Defendant’s waiver of a jury trial was knowingly and intelligently made.

Louisiana Code of Criminal Procedure Article 780(A) allows:

A defendant charged with an offense other than one punishable by death [to] knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.

This court has further explained that “[w]hile one who is entitled to a jury trial may waive that right, such waiver shall not be presumed but must be established by a contemporaneous record setting forth the articulated appraisal of that right followed by a knowing and intelligent waiver by the accused.” State v. Morris, 607 So.2d 1000, 1001 (La.App. 3 Cir.1992), judgment set aside on other grounds, 615 So.2d 327 (La.1993).

|7In the present case, the following colloquy occurred:

RE: MOTION TO WAIVE JURY TRIAL
BY MR. DUHE:
The first issue I want to make sure the record’s clear on is the motion to waive trial by jury. Miss deMahy with the Public Defender’s Office represents the defendant and has filed a motion. However, I would also ask this Court to question Mr. Bias so he can be on the record as having waived his right to a jury trial.
QUESTIONING BY THE COURT
BY THE COURT:
(ADDRESSING DEFENDANT BIAS)
Q. All right. Mr. Bias?
A. Yes, sir.
Q. Your lawyer has said that, rather than have a jury trial, you want to try your case in the front of a judge, in the front of me. Is that true?
A. Yes, sir.
Q. Okay. So you understand that you could have your case this week in the front of a jury if you wanted?
A. Yes, sir.
Q. You understand that?
A. Yes, sir.
Q. But you’d rather have it in the front the judge?
A. (Nods affirmatively.)
BY THE COURT:
All right. So ordered. You may proceed.

In determining whether a defendant voluntarily waived his right to jury trial, a trial court is only required to determine whether the defendant’s waiver was made |Rknowingly and intelligently. See State v. Campbell, 42,099 (La.App. 2 Cir. 6/20/07), 960 So.2d 363. It “does not require a Boykin-like colloquy.” Id. at 367.

Although concrete requirements for determining if a waiver of jury trial is knowingly and intelligently made do not exist, this court has historically required, at a minimum, that there be a transcript containing a colloquy indicating that Defendant knows that he is entitled to a trial by jury and that he does not want to exercise that right. See State v. P.T., 07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ denied, 08-26 (La.5/30/08), 983 So.2d 895; State v. Pierre, 02-277 (La.App. 3 Cir. 10/2/02), 827 So.2d 619 (we reversed the trial court’s finding that the defendant had knowingly waived her right to trial by jury when the transcript of the proceedings in which the right to jury trial was waived was missing, and, once found, indicated that the defendant had some doubts about the waiver and did not explicitly waive her right to trial by jury.)

In the instant case, Defendant was questioned by the trial court concerning his decision to waive his right to jury trial and was asked if he understood that he could have his trial in front of a jury if he wished. The trial court then clarified that Defendant wanted to have his trial in front of a judge. Defendant answered these questions affirmatively. Additionally, and prior to the hearing in which Defendant asserted his desire to waive his right to jury trial, counsel for Defendant filed a motion to waive his right to trial by jury on his behalf. The multiple requests, in addition to Defendant’s assertions in open court, make it clear that Defendant wanted Into waive his right to trial by jury and that he did so knowingly and intelligently. Thus, this assignment of error is without merit.

Sufficiency of Evidence

In his second assignment of error, Defendant argues that the evidence introduced at trial was insufficient to support his conviction for attempted armed robbery. The analysis for such claims has been described by this court as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the State has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Armed robbery is defined by La.R.S. 14:64(A) as: “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” Attempt, as defined by La.R.S. 14:27(A), is when “[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the 11f)circumstances, he would have actually accomplished his purpose.” Thus, there is a two-prong test in determining whether the evidence was sufficient to convict Defendant of attempted armed robbery: first, whether Defendant had the specific intent to commit an armed robbery; and second, whether he committed an act tending toward the accomplishment of such a robbery.

In his brief, Defendant acknowledges placing a gun on the counter in front of Yaser, but argues that there is no evidence that he tried to take the bottle of gin and that the record is not clear regarding what he said to Yaser at that moment.

Defendant further contends that the evidence leaves open the possibility that he removed the gun from his pocket simply to search for money. He notes that he did not demand the gin or any money, and he did not approach Ahmad with the gun as he tried to leave the store. He claims that he did not try to force Ahmad away from the door and that he committed no act in furtherance of robbery. Finally, Defendant contends that the Obid brothers did not react as if they were being robbed.

At trial, Yaser stated that Defendant approached the counter and asked for gin. After Yaser picked up a bottle of gin and said, “four thirty-three, please.” Defendant rummaged in his own pockets, produced a firearm, and shook it at him. Defendant placed the weapon on the counter, pointing at Yaser. Defendant picked up the gun, asked, “am I good for this gin,” and looked nervous. Defendant then put the gun back into his pocket and walked toward Ahmad, who was near the door.

Defendant’s interaction with Ahmad need not be discussed, because the attempted armed robbery was already complete by that point. He produced a firearm in the context of Ms request for gin and pointed it at the man holding the gin; such actions certainly implied a threat as part of an effort to obtain the gin. While the |! circumstances indicate Defendant may have changed his mind, it is clear that for some period of time, however short, he specifically intended to employ the weapon to help him take the gin. The first prong of the two-part test was met.

Defendant’s assertion that the record does not show an act in furtherance of the attempted robbery is inaccurate. His producing the weapon was such an act. “Attempt requires both the specific intent to commit a crime and an act for the purpose of, or an ‘overt act,’ tending directly toward accomplishment of that crime.” State v. Prine, 44,229, 44,230, p. 10 (La.App. 2 Cir. 5/20/09), 13 So.3d 758, 764, writ denied, 09-1361 (La.2/5/10), 27 So.3d 298. An act need not be directly proximate to the commission of a crime in order to be properly classified as an overt act. Further, an overt act need not be such that it will result in commission of the crime unless frustrated by extraneous circumstances. Id. (citations omitted). Drawing a weapon from one’s pocket is an act directly proximate to the commission of a crime and, therefore, exceeds the standards set forth in Prine. Thus, the second-prong of the two-part test was met.

To support his assertion that the evidence convicting him was insufficient, Defendant would have us distinguish the instant case from State v. Frazier, 37,010 (La.App. 2 Cir. 4/9/03), 843 So.2d 562, writ denied, 03-1333 (La.11/21/03), 860 So.2d 542. Instead, we interpret Frazier as analogous with the instant case.

In Frazier, the defendant walked toward the front door of a convenience store and donned a ski mask to conceal his identity. A deputy’s arrival interrupted the defendant’s planned robbery, and, as he fled the scene, he was found with an automatic handgun. The second circuit found that “[it was] immaterial that Frazier did not know which cashier he was actually going to rob, or that she did not yet see 112him.” Id. at 564. It further found that all of the defendant’s actions: putting on a ski mask, walking toward the store, and carrying an automatic handgun, were “more than mere preparation; they tend directly toward the taking of anything of value belonging to another, from the person of another or her immediate control, by the use of force or intimidation, while armed with a dangerous weapon.” Id. It then held that “[t]he evidence is sufficient beyond a reasonable doubt to convict Frazier of attempted armed robbery.” Id.

In this case, Defendant lacked a ski mask, but he had actually entered a store and pointed a weapon at a victim while asking if he was “good for the gin,” implying that he would use the gun if denied the gin. Here, entering the store, pointing the gun and asking if he was “good for” the gin are sufficient beyond a reasonable doubt to support Defendant’s conviction of attempted armed robbery.

Finally, Defendant argues there were no allegations that he took anything of value or threatened Yaser. The crime at issue is attempted armed robbery; thus, a taking is not required to support a conviction. See State v. Stone, 615 So.2d 38, (La.App. 3 Cir.), writ denied, 623 So.2d 1302 (La.1993).

For the foregoing reasons, this assignment lacks merit.

Burden of Proof for Defense of Intoxication

In this assignment of error, Defendant argues that the trial court applied the wrong burden of proof in assessing his affirmative defense of intoxication. He argues that he established by a preponderance of the evidence that he was intoxicated at the time of the offense, and the State failed to negate that defense beyond a reasonable doubt.

| iSThe analysis for an intoxication defense was promulgated in State v. Wilson, 44,586, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, 215:

Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal intent. La. R.S. 14:15(2). The defendant has the burden of proving the existence of that condition at the time of the offense. The specific legal question is not when the requisite specific intent was formed, but rather whether, at the time the unauthorized entry occurred, the defendant was so intoxicated as to preclude the existence of any specific intent on his part to commit a theft or felony therein. State v. Davenport, 08-463 (La.App. 5th Cir.11/25/08), 2 So.3d 445; State v. Godbolt, 2006-0609 (La.App. 1st Cir.11/3/06), 950 So.2d 727. When circumstances exist that intoxication could have precluded specific intent, the burden shifts to the state to show beyond a reasonable doubt that specific intent was present. Whether intoxication is sufficient to negate specific intent is a question for the trier of fact. State v. Davenport, supra.

In the instant case, the trial court considered La.R.S. 14:15(2) and found that Defendant did not meet this burden of proving intoxication and/or drug use at the time the offense occurred. The trial court noted that the police did not indicate that there was evidence of drug use and that the only indication that Defendant had used alcohol was the slight smell surrounding him. The trial court further noted that no tests were performed to determine whether Defendant had used drugs or alcohol and that Defendant explained to a doctor that he fell asleep in the police car because he suffers from a sleeping disorder. Additionally, the trial court found that Defendant had enough presence of mind to specifically take Gary to the side of the store and out of plain sight, ordered him to empty his pockets, and then demanded certain items of his clothing. The trial court also found that Defendant had the presence of mind to order a specific brand of gin, to pull out a gun when he realized he had no money, to realize there was a problem when Ahmad blocked the door, and to pull his gun out again when trying to leave. Finally, the trial court found that the only things 114supporting Defendant’s affirmative defense were that he had a smell of alcohol about him. The trial court dismissed the notion that a smell of alcohol constituted proof of intoxication, stating “that does not indicate that a person does not — because they drink, does not understand and cannot have specific intent.” The trial court found that the defense of intoxication was not proved.

Defendant does not appear to dispute any of the trial court’s factual statements but implies that it did not give sufficient weight to some of the evidence regarding Defendant’s alleged intoxication. In brief, Defendant asserts that:

In setting forth its reasons for finding against the affirmative defense of voluntary intoxication, the judge concluded that the only evidence of intoxication was the smell of alcohol. The court: 1) did not assign any weight to the testimony of Mr. Gary concerning the Appellant’s demeanor; 2) did not assign any weight to the testimony of [probation and parole officer] Mr. Wescott of repeated drug use; 3) totally disregarded the Appellant’s testimony as self-serving; and, 4) disregarded the nurse’s testimony as it was a history obtained from only Mr. Bias. The court did not consider the facts that his history was given in close proximity to the events in question nor did it consider the fact that the undiagnosed sleeping disorder reported by Mr. Bias to medical personnel could very well have been associated to drug and/or alcohol abuse and thus, was not inconsistent with the voluntary intoxication defense.

The trial court did not explicitly address these testimonies in explaining why it found against Defendant’s affirmative defense of intoxication, though it was well within the trial court’s authority to assign as much weight to them as it felt necessary. In this case, the trial court assigned little weight to these testimonies. It is not unreasonable to view Defendant’s trial testimony or his statements to the nurse as self-serving, and even the testimony that he had a history of prior drug use did not meet the burden of proof necessary for establishing that he was intoxicated at the time of the offense. It certainly did not prove that he was so intoxicated that he did |1finot have the ability to form specific intent before committing the offenses discussed herein.

The defense of intoxication must be proved by the defendant, and he must prove that his state of mind, at the time the offense was committed, was such that he was not able to form specific intent to commit the crime. See State v. Rivers, 444 So.2d 1384 (La.App. 3 Cir.1984). The trial court found that Defendant did not prove that he was intoxicated so as to preclude his ability to form specific intent. The trial court did not err by rejecting Defendant’s affirmative defense of intoxication. This assignment lacks merit.

Use of Predicate Offenses

In his final assignment of error, Defendant argues the trial court erred by allowing the State to use the same predicate offense, simple robbery, in supporting his conviction as a felon in possession of a firearm and in support of the multiple offender bill filed against him. He alleges that this use constitutes double enhancement, which the supreme court prohibited in State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008).

The supreme court has addressed the issue of double enhancement in a string of cases, beginning with State v. Sanders, 337 So.2d 1131 (La.1976) (overruled in part by Baker, 970 So.2d 948). In Sanders, the defendant had previously been convicted of two counts of armed robbery and one count of attempted simple burglary. He was then convicted as a felon in possession of a firearm, pursuant to La.R.S. 14:95.1. In support of this conviction, the state offered proof of his second armed robbery conviction and his attempted simple burglary conviction. The state then sought to enhance the firearm sentence by multiple billing him pursuant to |]6La.R.S. 15:529.1 and listed all three previous convictions in the bill of information. Alleging double-enhancement, Sanders filed a motion to quash that was granted by the trial court. The state took writs to the supreme court.

In considering the facts above, the supreme court noted: the state “has attempted to use defendant’s prior conviction twice: first, to establish his status as a convicted felon so as to convict him of the crime, and second to .increase the penalty through a multiple bill.” Sanders, 337 So.2d at 1134. Ultimately, the Sanders court found that a sentence under La.R.S. 14:95.1 could not be enhanced under the multiple offender statute because La.R.S. 14:95.1 provided explicit sentences for enhanced punishment, precluding enhancement under any other statute, particularly the multiple offender statute, La.R.S. 15:529.1.

The issue of double enhancement was revisited by the supreme court in Baker, 970 So.2d 948. In Baker, the defendant was previously convicted of aggravated battery and possession of stolen things. He was subsequently arrested for violating La.R.S. 14:95.1 and was adjudicated a felon in possession of a firearm. In support thereof, the state offered proof of his conviction of aggravated battery. The state then sought to enhance the defendant’s conviction of firearm possession under the multiple offender statute, La.R.S. 15:529.1. In the bill of information, the state offered proof of the defendant’s conviction for possession of stolen things. The defendant was adjudicated a second offender, and he appealed, claiming that his sentencing as a habitual offender after he had been convicted a felon in possession of a firearm constituted “double jeopardy.”

On appeal, the second circuit affirmed the defendant’s adjudication and sentence as a habitual offender, and the defendant applied for writs to the supreme |17court. The supreme court ultimately held that the determination in Sanders “that a sentence imposed under La.R.S. 14:95.1 may not be further enhanced under the habitual offender statute, was in error.” Baker, 970 So.2d at 957. It overruled Sanders regarding that proposition and noted: “the other holding in Sanders, that the State may not seek multiple enhancement of a defendant’s sentence on the basis of the same set of prior convictions, was recently cited with approval by this court in State v. Ruiz, 2006-1755 p. 12-13 (La.4/11/07), 955 So.2d 81, 89.” Id.

| ^Although these cases made clear that a sentence cannot be enhanced twice using the same underlying convictions, they are factually distinguishable from the instant case. In the cases discussed above, the state used a prior conviction to adjudicate the defendant a felon in possession of a firearm and then sought to enhance the firearm conviction under the multiple offender bill using a different underlying conviction. In the instant case, the State used Defendant’s prior convictions in three simple robberies to adjudicate him a felon in possession of a firearm and then sought to use the same underlying convictions for simple robbery in support of adjudicating Defendant a multiple offender.

Defendant argues that the holdings in the previous cases, particularly in Baker, apply to the instant case, and prohibit the State from using the same predicate convictions to enhance two separate sentences arising from the same offense. Applying Defendant’s interpretation of the case law would lead to absurd results.

The supreme court recently addressed a situation almost identical to the instant case, in State v. Foster, 09-617 (La.11/25/09), 23 So.3d 885. In Foster, the state used a single prior conviction, second offense possession of marijuana, in support of the charge that the defendant was a third time offender in possession of marijuana and also to enhance his sentence for possession with intent to distribute cocaine. The trial court adjudicated the defendant a third-time habitual offender and sentenced him to thirty-five years for possession with intent to distribute. The second circuit overturned the trial court, interpreting Baker as preventing the state from using the same underlying conviction to enhance two separate charges.

| uiThe supreme court granted writs and clarified that “Baker considered the question of ‘double enhancement’ in the context of a single conviction.” Foster, 23 So.3d at 885. It further held that:

[Djouble enhancement for purposes of Baker (ie., enhancement of enhanced penalties) did not occur because the state used that conviction only once on the count charging third offense possession of marijuana (to enhance the status of the crime and punishment from a second to third offense) and only once on the separate conviction for possession of cocaine with intent to distribute, to enhance defendant’s status from a second to third offender for sentencing purposes under the habitual offender law in La.R.S. 15:529.1.

Id. at 885-86.

Based on the clear holdings of the supreme court, we find that the State did not commit double enhancement in using the prior convictions of simple robbery only once to support Defendant’s conviction as a felon in possession of a firearm and only once to enhance Defendant’s sentence for attempted armed robbery. Thus, this assignment lacks merit.

DECREE

For the foregoing reasons, we find that Defendant validly waived his right to jury trial, and we uphold his convictions, adjudications, and sentences.

AFFIRMED.

      . Pulling back the slide places a bullet into the chamber of the gun.

      . On writ application, the supreme court reversed our decision in Pierre, finding that defense counsel's affirmation that he and the defendant had discussed jury waiver in detail was sufficient. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321.

      . Defendant’s argument does not address the companion convictions.

      . In Sanders, the supreme court stated:
      [The state] has attempted to use defendant's prior conviction twice: first to establish his status as a convicted felon so as to convict him of the crime, and, second to increase the penalty through a multiple bill. The trial judge felt that this double use of the same convictions was barred by the prohibition against double jeopardy (or collateral estoppel) and by the guarantee of due process. Although we affirm the trial court’s action in quashing the indictment, we do so for other reasons, finding it unnecessary to reach these constitutional issues.

        Sanders, 337 So.2d at 1134. The supreme court went on to hold that:
      [W]e find that the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.
      For the reasons assigned, we conclude that the action of the trial court in quashing the indictment was correct.

        Id. at 1135.
      In Baker, the supreme court stated:
      On review [in Sanders], this court discussed two concepts. First, the court found that the state's attempt to further enlarge Sanders' firearms penalty was an improper attempt to use the defendant's prior convictions twice: “first, to establish his status as a convicted felon so as to convict him of the crime, and second to increase the penalty through a multiple bill.”

        Baker, 970 So.2d at 950. "In finding such a 'double enhancement' improper, the court noted that ... the state may not use the habitual offender law to enhance a sentence for a conviction under La. R.S. 14:95.1.” Id.

      . In Ruiz, the supreme court cautioned the trial court "that the double enhancement formula it used, i.e., enhancing the penalties provided for the underlying offense as a matter of La.Rev.Stat. 40:982 and then enhancing those enhanced penalties under [La.Rev.Stat.] 15:539.1, on the basis of the same prior convictions, violated this court’s rule in State v.

        Sanders, 337 So.2d 1131, 1134 (La.1976) (the State may not seek multiple enhancement of a defendant’s sentence on the basis of the same set of prior convictions).” Ruiz, 955 So.2d at 89.


author: PAINTER, J.

text:
    STATE of Louisiana v. Marcus Donte STEELE.
    No. 10-1336.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      Edward K. Bauman, La. Appellate Project, Lake Charles, LA, for Defendant/Appellant, Marcus Donte Steele.
    Chester R. Cedars, District Attorney, St. Martinville, LA, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, J.

|, Defendant, Marcus Donte Steele, was charged by bill of information filed on July 9, 2008, in docket number 08-235152, with forcible rape, in violation of La.R.S. 14:42.1. Defendant entered a plea of not guilty on August 11, 2008.

On December 2, 2009, Defendant withdrew his former plea of not guilty and entered a plea of guilty to one count of forcible rape, with the state agreeing not to pursue charges in connection with other alleged sexual assaults. On March 19, 2010, the trial court sentenced Defendant to thirty years at hard labor, to be served without benefit of probation, parole, or suspension of sentence.

A “Motion to Reconsider Sentence” was filed on April 1, 2010, which was denied. A motion for appeal was filed and granted.

Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in this matter. For the following reasons, we affirm with instructions and grant counsel’s motion to withdraw.

FACTS

The victim was walking home with items purchased at a drug store when Defendant offered her a ride home in his vehicle. Instead of taking her to her residence, Defendant took her to a gravel road near 1609 Mills Highway, Breaux Bridge, Louisiana. There he stopped the vehicle, exited, and went to the passenger side of the car. He put his hand over the victim’s mouth and began taking off her clothes. He punched her in the face, banged her head against the dashboard, and raped her repeatedly. He threw her purchases out of the car and left her at the site. The victim walked to the nearest store and called 911.

Defendant was arrested and charged with forcible rape.

| gERRORS PATENT

All appeals are reviewed for errors patent as required by La.Code Crim.P. art. 920. After reviewing the record, we find one error patent.

The trial court failed to advise Defendant of the prescriptive period for filing for post-conviction relief. See La.Code Crim.P. art. 930.8. The transcript of the guilty plea proceeding indicates that the trial court told Defendant that: “[Tjhere is a two year limitation to file for post-conviction relief. If you think anybody has done anything wrong in your case, you have two years to complain about it.” Louisiana Code of Criminal Procedure Article 930.8 provides that a defendant has two years after the conviction and sentence become final to seek post-conviction relief. Consequently, the trial court is instructed to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice within ten days of the rendition of this opinion and to file written proof that Defendant received the notice.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, Defendant’s appellate counsel has filed a brief stating that he could not find any errors on appeal that would support a reversal of Defendant’s conviction or sentence. Therefore, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the court explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This lacourt’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D)[,] this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instruments, and the transcripts. Defendant was properly charged by bills of information, was present and represented by counsel at all crucial stages of the proceedings, and entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, Defendant received legal sentences.

We find no issues which would support an assignment of error on appeal. Therefore, counsel’s motion to withdraw is granted.

CONVICTIONS AND SENTENCES AFFIRMED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

|, ORDER

After consideration of appellate counsel’s request to withdraw as counsel and the appeals presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate defense counsel’s motion to withdraw is granted.