author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Deitray LOMAX.
    No. 2011-KA-0591.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 28, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Deitray Lo-max.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|,The defendant, Deitray Lomax, appeals his Habitual Offender conviction and his life sentence. For the following reasons, we affirm both.

STATEMENT OF CASE

On July 12, 2007, the State charged the defendant with one count of possession of heroin, a violation of La. R.S. 40:966(0(1), and one count of being a convicted felon in possession of a handgun, a violation of La. R.S. 14:95.1.

At his arraignment on July 17, 2007, the defendant entered a plea of not guilty. The defendant filed a number of pre-trial motions, including motions to suppress the statement and the evidence. The trial court ruling denying the motions was issued on September 21, 2007.

Prior to trial on January 27, 2008, the defendant withdrew his prior plea and entered an Alford plea, reserving his right to challenge all pretrial rulings pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The defendant waived delays, and the court sentenced him to ten years at hard labor on each count to run concurrently jgwith credit for time served. The defendant subsequently filed a motion to withdraw his guilty plea and for a new trial, which was granted on February 11, 2009.

The case came for trial on May 5, 2009. The jury found the defendant guilty on the possession of heroin charge but was unable to reach a verdict with respect to the weapons charge, on which the trial judge granted a mistrial.

On June 4, 2009, the court sentenced the defendant to ten years at hard labor with credit for time served, and the State charged the defendant as a triple offender pursuant to La. R.S. 15:529.1, based upon prior convictions for first degree robbery and simple robbery in Orleans Parish Criminal District Court.

This Court upheld the defendant’s conviction on appeal. State v. Lomax, 2009-1129 (La.App. 4 Cir. 3/24/10), 35 So.3d 396, writ den., 2010-0935 (La.11/12/10), 51 So.3d 2.

On May 5, 2010, the defendant filed a motion seeking downward departure from the statutory minimum sentence established by the Habitual Offender Law, which the trial court denied on May 21, 2010.

At the multiple bill hearing on June 22, 2010, the trial court adjudged the defendant a multiple offender, vacated the defendant’s original sentence, and resen-tenced him as a triple offender to life imprisonment without benefit of ^probation, parole, or suspension of sentence. That same day, the defendant filed an oral motion for appeal.

STATEMENT OF FACT

The facts of this case are as set forth in Lomax, supra, and it is not necessary to restate them here, as the defendant appeals only his multiple offender adjudication and not his conviction for possession of heroin.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues his adjudication as a triple offender is erroneous because the State failed to prove his identity as the person convicted of two prior offenses listed in the multiple bill, and that he knowingly and voluntarily waived his constitutional rights, as required by Boykin v. Alabama, 395 U.S. 288, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when he pled guilty to the predicate offenses. Additionally, the defendant contends that he was deprived of his right to a trial by jury and his right to have the multiple bill proceedings, which subjected him to life imprisonment, instituted by grand jury indictment.

La. R.S. 15:529.1 D(l)(b) states that the district attorney has the burden of proving beyond a reasonable doubt any issue of fact and that the presumption of regularity of judgment shall be sufficient to meet the original burden of proof. The State must establish the prior felony and prove that the defendant was the same person convicted of that felony. State v. Neville, 96-0137 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-539. Proof of identity can be established through a number of ways, including expert testimony matching the fingerprints of the 14accused with those in the record of the prior proceeding. State v. Isaac, 98-0182 (La.App. 4 Cir. 11/17/99), 762 So.2d 25, 28-29. It is sufficient to match fingerprints on an arrest register to a defendant, and then match the arrest register to a bill of information and other documents evidencing conviction and sentence; this can be done through a date of birth, social security number, bureau of identification number, case number, specifics and details of the offense charged, etc. See State v. Payton, 2000-2899 (La.3/15/02), 810 So.2d 1127; State v. Anderson, 99-1407 (La.App. 4 Cir. 1/26/00), 753 So.2d 321.

In this case, the State alleged in the multiple bill that the defendant had pled guilty to simple robbery in 2002 in Case no. 433-575 and to first degree robbery in 2000 in Case no. 412-303.

At the multiple bill hearing, the State offered the testimony of NOPD Officer Joseph Pollard, an expert in latent fingerprint examination. Officer Pollard identified State’s Exhibit 2 as the fingerprints belonging to the defendant taken by Pollard in court on April 15, 2009. The witness then identified State’s Exhibit 1 as a certified copy of the penitentiary pack for the defendant’s conviction in Case no. 433-575 (simple robbery). The pack contained documents listing the defendant’s name, SID # 002157087, date of birth (12/8/81), social security number (XXX-XX-XXXX), folder number (00931527), date of release (9/16/06), photograph, copy of the bill of information containing fingerprints (taken 11/30/99), court minute entries and docket master for Case no. 433-575 memorializing the defendant’s conviction and sentence. Officer Pollard compared the fingerprints in State’s Exhibit 1 to the fingerprints contained on State’s Exhibit 2 and concluded they were identical and belonged to the defendant. Thus, the State has borne its burden | Bof proving the prior felony in Case no. 433-575 and that the defendant was the same person convicted of that felony.

Turning to proof offered by the State concerning the defendant’s identity in Case no. 412-303, the multiple bill hearing transcript offers no basis for Officer Pollard’s conclusion that the defendant is in fact the same person convicted of first degree robbery in that case. At the end of the State’s direction examination of Officer Pollard, the prosecutor asked:

Q. Now, Officer Pollard if you can now go to case number 412-303 what is the conviction in 412-303?
A. First degree robbery.
Q. Can you tell the date of release in case number 412-303?
A. It’s going to be March 7, 2001.
Q. Officer Pollard, in your opinion the person who was convicted in case number 433-575 and also case number 412-303 is what person?
A. Yes, my opinion, yes.
Q. Who is that person?
A. Deitray Lomax.

However, the State did offer additional proof of identity via that portion of the trial transcript in Case no. 471-564, Section “L” (the present case) in which the defendant was convicted of possession of heroin (La. R.S. 40:966(0(1)) on May 7, 2009. In Case no. 471-564 the defendant admitted he pled guilty to simple robbery in 2002 and to first degree robbery in 2000. Exhibit 5, Vol. 1 of 2, p. 252. See also State v. Lomax, 2009-1129 p. 6 (La.App. 4 Cir. 3/24/10), 35 So.3d 396, 400, writ den., 2010-0935 (La.11/12/10), 51 So.3d 2. Consequently, the State has proved the defendant’s identity as one and the same person who pled guilty to first degree robbery in Case no. 412-303.

16When, as in this case, a prior conviction resulted from a guilty plea, the State must show that the defendant was advised of his constitutional rights, and that he knowingly waived those rights pri- or to the guilty plea, as required by Boy-kin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Shelton, 621 So.2d 769 (La.1993). If the defendant denies the allegation of the bill of information, the State has the burden of proving the existence of the prior guilty pleas, and that the defendant was represented by counsel. Shelton, 621 So.2d at 779.

In this case, the defendant did not file a written response to the multiple bill, nor did he object to the State’s use of his prior convictions during the multiple bill hearing. Rather, prior to the conclusion of the multiple bill hearing, the defendant filed a Motion to Quash on the grounds that “the State failed to prove that the defendant was properly advised of his rights in his prior conviction(s).” The Motion to Quash is couched in conclusory language rather than an explanation of the factual basis for his claim. Consequently, the issue has not been preserved for appeal. La.C.Cr.P. art. 841A.

However, even if the issue were properly before this Court, the defendant is not entitled to relief because the State has borne its burden of proof.

For Case no. 433-574, the State offered the minute entry of October 31, 2002, memorializing the defendant’s plea of guilty and enumerating the rights the judge explained to the defendant, as well as a certified copy of the defendant’s “Waiver of Rights Plea of Guilty Form” indicating that the defendant, represented by counsel, appeared before Judge Dennis J. Wal-dron and pled guilty to simple robbery. The waiver of rights form is signed and initialed by the defendant in the appropriate places acknowledging that he was giving up his rights to trial by judge 17or jury, presumption of innocence, to present and confront witnesses, right to remain silent and appeal. Moreover, the form contains Judge Waldron’s signature accepting the guilty plea as having been knowingly, intelligently, freely and voluntarily made by the defendant.

Likewise, in Case no. 412-303, the State produced a minute entry dated April 3, 2000, memorializing the defendant’s plea of guilty and the trial court judge’s explaining of the defendant’s rights. The State also presented a copy of the defendant’s “Waiver of Rights Plea of Guilty Form” indicting that the defendant, represented by counsel, appeared before Judge Sharon Hunter and pled guilty to first degree robbery. The guilty plea form is signed and initialed by the defendant in the appropriate places acknowledging that he was giving up his rights to trial by judge or jury, presumption of innocence, to present and confront witnesses, right to remain silent and appeal. The form contains Judge Hunter’s signature attesting to the defendant’s acknowledgement that the guilty plea was given freely and voluntarily with the full understanding of his rights because he was in fact guilty of first degree robbery. Accordingly, the defendant’s argument concerning the identity issue is without merit.

As to the defendant’s contention that he must have a grand jury indictment relative to his multiple offender status, the Louisiana Supreme Court in State v. Alexander, 825 So.2d 777, 778-779 (La.1976) has made it clear that the constitutional requirement of a grand jury indictment in capital cases or cases punishable by life imprisonment does not apply to the institution of enhanced-penalty proceedings under La. R.S. 15:529.1. Id. The grand jury’s function is to inquire into an offense and to indict for an offense if the evidence so indicates. Id. at 779. The Alexander court explained that “[t]he constitutional classification of Rfelonies for initiation of prosecution is founded upon the general penalty applicable to the substantive crime charged ... not upon any enhanced penalty to which any particular individual might be subject because of his prior convictions [Pjost-conviction enhanced-penalty proceedings have no functional relationship to the innocence or guilt of the crime for which prosecution is initiated either by grand-jury indictment or by bill of information.” Id.

Turning to the defendant’s right to jury trial on the multiple bill, this court has determined that no constitutional right to a jury trial exists in multiple bill proceedings because all of the elements necessary to enhance the sentence “can be determined by reviewing the documents submitted in support of the multiple bill of information.” State v. Vincent, 2010-0764, p. 11 (La.App. 4 Cir. 1/19/11), 56 So.3d 408, 415 citing State v. Smith, 05-0375, pp. 3-5 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 839, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Nevertheless, the defendant contends that Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), along with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that there be a jury trial on the issues of identity, ten year lapse, whether the predicate offenses occurred before the present offense, and whether the predicate offense fit the enumerated aggravating convictions. In Apprendi, the U.S. Supreme Court stated that “[ojther than the fact of a prior conviction [Emphasis added.], any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435. This rule was reiterated by the U.S. Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States Supreme Court clearly has made an exception for prior convictions. Thus, under Apprendi, the defendant’s prior convictions were not required to be submitted to a jury. This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment of error the defendant argues that the trial court imposed an excessive sentence. He argues his sentence is excessive considering his age (twenty-nine years), the relatively small amount of drugs he possessed (seven foils of heroin) and his criminal history. Further, he argues that the trial judge failed to consider the La.C.Cr.P. art. 894.1 sentencing guidelines.

In State v. Landry, 2003-1671, pp. 7-9 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240, this Court set forth the standard for reviewing an excessive sentence claim:

La. Const, art. I, § 20 explicitly prohibits] excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 10, 656 So.2d at 979.

In reviewing a claim of excessive sentence, an appellate court generally must determine whether the trial judge adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1 and whether the sentence is warranted under |10the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

However, in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819 this Court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court said:

A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut the presumption of constitutionality. [Citation omitted.]
[T]o rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

When determining whether the defendant has met his burden of proof by rebutting the presumption that the mandatory minimum sentence is constitutional, Inthe trial judge must also keep in mind the goals of the Habitual Offender Law. The major reasons the Legislature passed the Habitual Offender Law were to deter and punish recidivism. Under the statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the State’s laws. He is subjected to a longer sentence because he continues to break the law.

A conviction for possession of heroin carries a sentence of imprisonment at hard labor for not less than four years and not more than ten years. La. R.S. 40:966(0(1). In this case, under the Habitual Offender Law, because the third offense is for a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for ten years or more, and the two underlying offenses are crimes of violence, the defendant faced a mandatory sentence of life imprisonment. La. R.S. 15:529(A)(3)(b).

The trial judge in this case did not articulate reasons for the sentence; however, the omission of any reasons for judgment is irrelevant under these circumstances. In State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, this Court rejected the defendant’s argument that it should vacate the mandatory minimum sentence imposed because the trial court failed to mention any reasons for sentencing, including any sentencing factors enumerated in La.C.Cr.P. art. 894.1, stating that although the 894.1 sentencing factors must be considered in each case, “ ‘[w]hen the statute provides for a mandatory sentence, it is an exercise in futility for the trial court to enumerate its reasons for sentencing.’ ” Jefferson, p. 37, 922 So.2d at 603 (citing State v. Green, 99-2847, p. 8 (La.App. 4 Cir. 11/29/00), 779 So.2d 835, 840; State v. Brooks, 2000-2337, p. 3 (La.App. 4 Cir. 4/10/02), 817 So.2d 288, 290).

112However, denying the defendant’s motion for downward departure from the mandatory minimum sentence on May 21, 2010, the trial judge in the present case noted:

... given the defendant’s history, it appears that the lengthy sentence required in this case was designed by the legislature for an offender with precisely the violent history present with this defendant, (emphasis supplied).

The record herein supports the trial court’s foregoing conclusion. In Case no. 412-303, the defendant was originally charged with two counts of armed robbery (La. R.S. 14:64) and two counts of first degree robbery (La. R.S. 14:64.1), but only pled guilty to the amended charge of first degree robbery.

Likewise, in Case no. 433-575, the State initially charged the defendant with carjacking (La. R.S. 14:64.2), but the defendant pled guilty to the lesser charge of simple robbery.

Finally, according to the docket master in the record, the defendant was born in 1981. Consequently, youth is not a mitigating factor in this case.

Accordingly, the defendant has not presented any proof that the mandatory life sentence herein is an unconstitutionally excessive sentence. This assignment has no merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

HABITUAL OFFENDER CONVICTION AND SENTENCE AFFIRMED.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . According to the multiple bill filed on June 4, 2009, the defendant pled guilty to simple robbery on October 31, 2002 in case no. 433-575 "F", and to two counts of first degree robbery on April 3, 2000, in case no. 412-303 "C". Moreover, at trial the defendant testified that he pled guilty to first degree robbery in 2000 and to simple robbery in 2002.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Teresa J. LOMMASSON.
    Nos. 11-KA-536, 11-KA-538.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.

      Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAYOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|?,Defendant, Teresa Lommasson, entered guilty pleas to two counts of operating a motor vehicle while intoxicated, fourth offense. In entering these pleas, defendant reserved her right to appeal the trial judge’s denial of her Motions to Quash. Hence on appeal, she argues her motions were improperly denied. For the reasons that follow, we affirm in part, reverse in part, and remand.

PROCEDURAL HISTORY

On December 1, 2004, the Jefferson Parish District Attorney filed a bill of information, in case number 04-7794, charging defendant with operating a motor vehicle while intoxicated (fourth offense), in violation of LSA-R.S. 14198(E). On May 18, 2005, the Jefferson Parish District Attorney filed another bill of |sinformation, in case number 05-3218, charging defendant with operating a motor vehicle while intoxicated (fourth offense), in violation of LSA-R.S. 14:98(E).

In both cases, arraignment was set for May 26, 2005 and defendant failed to appear for arraignment. The trial court forfeited defendant’s bond and issued an attachment for her arrest. Thereafter, on December 7, 2010, following arraignment in each case, defendant entered pleas of not guilty.

On January 28, 2011, defendant filed identical motions to quash the bill of information in both cases, alleging that the State had failed to commence trial within two years from the institution of prosecution. After a hearing on February 14, 2011, the trial court denied defendant’s motions to quash the bills of information, at which time defendant entered guilty pleas pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

On that same day, defendant was sentenced to five-year concurrent sentences on each count, with all but sixty days suspended. Defendant was placed on active probation for three years, one year to be served under home incarceration, with ten hours of community service per month while on probation. Defendant was also fined $5,000 in case number 04-7794. The court also gave defendant credit for time served and imposed the sentences to run concurrently to each other and to those imposed for the misdemeanor charges.

These timely appeals followed and have been consolidated for review.

1 ¿ASSIGNMENT OF ERROR — Failure to grant Motion to Quash

In her sole assignment of error, defendant contends that the trial court erred when it failed to grant her Motions to Quash, arguing that the trials in her cases were commenced untimely. She asserts that the State failed to demonstrate that the time limitation for bringing her to trial was interrupted. She contends that she did not leave the State of Louisiana to avoid being prosecuted and further that the State failed to exercise due diligence in discovering her whereabouts after only one attempt at personal service in May of 2005. Defendant contends that her roommate, Richard Sindik’s, testimony that she lived with him from 2004 to 2008 and that she received letters from the State regarding her unemployment claim supports her argument that the State only made a cursory attempt at service. She concludes that the trial court’s finding that she intentionally avoided prosecution was contrary to the evidence and testimony as reflected in the record.

The State responds that the limitation period was interrupted when defendant was unable to be served at the address she provided to the court and that her presence could not be obtained by legal process and/or because she was absent from her place of abode in attempt to avoid prosecution. Specifically, the State asserts that the subpoena in case number 04-7794 reflects that the deputy could not serve defendant because she was not at that address “per Richard Sindik.” The State submits that the trial court’s denial of the motions to quash was amply supported by the record.

As a general matter, the State has two years from the institution of prosecution to commence a trial in a non-capital felony case. LSA-C.Cr.P. art. 578(A)(2). The Louisiana Supreme Court has explained that the “statutory periods of limitation ‘enforce the accused’s right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite | fiperiods of time.’ ” State v. Romar, 07-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725 (per curiam), quoting State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286. The date of institution of prosecution is the date when the bill of information is filed. State v. Smith, 07-959, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 834.

Upon expiration of the time limitation, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct. LSA-C.Cr.P. art. 581. A motion to quash is the proper procedural vehicle for asserting an expiration of the time limitations. LSA-C.Cr.P. art. 532(7).

Once a defendant shows that the State has failed to commence trial within the time periods specified by the general rule governing time limitations for commencement of trial, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205 (per curiam). To satisfy its burden in establishing that an interruption of the prescriptive period has occurred, the State must exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. State v. Breaux, 05-358, p. 5 (La.App. 5 Cir. 12/27/05), 920 So.2d 274, 277 (citation omitted). The trial judge’s denial of a motion to quash should not be reversed in the absence of a clear abuse of the trial court’s discretion. State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1208.

In her motions to quash, defendant argued that the time period for prosecuting her under LSA-C.Cr.P. art. 578 had expired. On its face, defendant’s motions to quash appear meritorious. Although prosecution was timely instituted, trial was not commenced within the two-year period provided by LSA-C.Cr.P. art. |ñ578(A)(2). Thus, the issue is whether the State has met its burden of proving an interruption or suspension of the time limitation.

LSA-C.Cr.P. art. 579 provides for the interruption of the time limitation for commencing trial, as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

At the hearing on the motions to quash the bills of information held prior to trial on February 14, 2011, defendant argued that the record reflected that only one attempt at service was made on May 6, 2005, and the State never attempted to serve defendant again. Defendant stated that a single attempt to make service does not meet the State’s obligation that a defendant cannot be served and the ability to serve a defendant is outside the State’s control.

The State submitted the service information in the court record in both cases and argued that the defendant was served at the address defendant gave, 634 Car-rollton Avenue, in Metairie. It asserted that certified mail sent to the Carrollton Avenue address was ignored and the person at the address refused to sign for it. The State pointed out that defendant in the instant case claims that she actually lived at the address; however, the person with whom she lived said she did not live there.

|7Richard Sindik was the only witness to testify at the hearing. Mr. Sindik testified that he lived with defendant at 634 Car-rollton Avenue in Metairie from 2004 to 2008, with two exceptions. Defendant was absent from the residence while in “rehab” in May of 2005 and also for a short period of time in 2005 due to Hurricane Katrina. Mr. Sindik testified that he did not recall speaking with a Sheriffs deputy prior to Hurricane Katrina, but that he would not have told the deputy that defendant no longer lived at the Carrollton Avenue address.

Mr. Sindik further testified that defendant received correspondence and unemployment checks from the State’s unemployment office at the Carrollton Avenue address, and that defendant’s identification card listed the Carrollton Avenue address as her place of residence. Documents were submitted to support this testimony.

On cross-examination, Mr. Sindik testified that he did not know why defendant would not accept certified mail sent to her at the Carrollton address. He also admitted that he was aware defendant had two DWI charges pending against her.

The trial court denied defendant’s motions to quash, finding that the subpoena indicated that Mr. Sindik informed the deputy that defendant “was not at this address,” which was sufficient to convince the State to believe that defendant no longer resided there. The Court also found that the deputy had no reason “whatsoever” to believe that the occupant of the house would have misrepresented that fact to him, and had Mr. Sindik indicated that defendant resided there, the deputy would have made domiciliary service.

The trial court further found the fact that two separate certified letters were sent to defendant, which reflected that notices left at the address in June were left unclaimed, corroborated the belief that even though defendant resided at the IsCarrollton Avenue address, “she was doing everything possible to convince that she did not reside there and to avoid the service.” The court noted that it did not believe that the State was required to make numerous attempts at service when the deputy was informed by a resident that the person does not reside there.

Review of Case Number 04-7794

A review of the record indicates that the trial court correctly denied defendant’s motion to quash in case number 04-7794. Service of the May 26, 2005 arraignment date was attempted at the Carrollton Avenue address and returned by the Jefferson Parish Sheriffs Office with remarks that defendant “was not at th[at] address, per Richard Sindik.” The Sheriffs return, when received by the Clerk of Court, shall form part of the record and shall be considered prima facie correct. State v. Smith, 07-959, p. 8 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 836. The defendant did not appear for arraignment on May 26, 2005.

Subsequently, when notice of defendant’s bond forfeiture was sent to the Car-rollton Avenue address, it was returned to the Jefferson Parish Clerk’s office, marked “unclaimed” after several notices were left at the residence. The fact that defendant admits that she actually received her unemployment checks and other correspondence from the State unemployment office at the Carrollton Avenue address strongly suggests that defendant purposefully evaded prosecution in this case.

Defendant argues that other than this one attempt at service, no follow-up attempts were made even though she lived at the Carrollton Avenue address through 2008.

In State v. Taylor, 439 So.2d 410 (La.1983), the State first attempted service of a notice of arraignment on a DWI defendant at the address written on the traffic 13citation issued at the time of the offense. When this was returned showing there was no such address, service was attempted at the address shown on the defendant’s bond. However, the Sheriffs officer attempting service testified that an unidentified man at the complex told him that he did not think that the defendant lived there, so the return was endorsed “unable to locate” and filed in the record. This officer testified that he made one more unsuccessful attempt at that address, but this was not reflected in the record. An arrest warrant was issued when the defendant failed to appear for arraignment. The defendant subsequently moved to a new residence in Baton Rouge, notifying his probation officer but not the court handling the DWI charge; he also failed to notify the court of his later move out of state. While the State argued that the defendant’s actions made his presence unobtainable and evidenced an intent to avoid prosecution, the Supreme Court held that the State had not made a “due and diligent effort to subpoena the defendant,” and that there was insufficient evidence of any intent to elude the authorities. Taylor, 439 So.2d at 414. The Court found that there was no interruption in' the time period and the charges had to be dismissed.

In order for the State to meet its burden in proving that defendant’s purpose in absenting herself was to avoid detection, apprehension, or prosecution, the record must “clearly” establish that the purpose of her absence is to avoid detection, apprehension or prosecution. Taylor, 439 So.2d at 414. Thus, although there was only one attempt at service in this case, the State has met its burden. Unlike Taylor, here the record reflects that the deputy attempting service was informed by another resident of the household, Mr. Sindik, that defendant was “not at the address.” Had Mr. Sindik stated otherwise, it is only reasonable to assume that the deputy would have made domiciliary service of notice of defendant’s arraignment date.

[inWe recognize that Mr. Sindik testified at the hearing that defendant was in “rehab” in May of 2005 and that he never would have told the deputy that defendant did not live there contradicts the remarks written on the subpoena. The trial court, as it is free to do, clearly believed the remarks on the subpoena over Mr. Sindik’s testimony. Further, the fact that Mr. Sindik told the deputy that defendant did not reside with him then later testified that he never told the deputy that defendant did not reside with him indicates that defendant was absent in order to avoid detection, service, and eventual prosecution, as contemplated under LSA-C.Cr.P. art. 579(A)(1). Moreover, the fact that the certified letters went unclaimed in June of 2005, after several notices were left, further supports this proposition, especially when considering defendant continued to receive her unemployment checks at this address. This also substantiates the belief that defendant was not amenable to service at the Carrollton Avenue address, as contemplated by LSA-C.Cr.P. art. 579(A)(2). Due to the fact that defendant was attempting to avoid detection and prosecution, we find that a perpetual cause for the interruption of service existed until defendant was arrested. Once defendant was arrested, she was immediately arraigned. Furthermore, any attempts to serve defendant at another address from 2005 to 2008 would have been futile since defendant admits that she actually lived at the Carrollton Avenue address during that time.

Accordingly in case number 04-7794, the record indicates that the State met its burden in proving that defendant absented herself from her residence in order to avoid detection and prosecution, as stated in LSA-C.Cr.P. art. 579(A)(1). Likewise, the State could not secure defendant’s presence through legal process for reasons beyond its control, particularly, because defendant mislead the State into 111 believing she did not reside at the Car-rollton Avenue address. LSA-C.Cr.P. art. 579(A)(2). As such, we find that the trial court did not abuse its discretion in denying defendant’s motion to quash in case number 04-7794.

Review of Case Number 05-3218

Conversely, in case number 05-3218, the State did not meet its burden in proving that defendant purposefully absented herself to avoid prosecution, under LSA-C.Cr.P. art. 579(A)(1), or that her presence could not be obtained through legal process, or some other reason beyond the control of the State, under Art. 579(A)(2).

As previously discussed, the return on the subpoena which indicates that Mr. Sin-dik informed the deputy that defendant was not at the residence was only filed in case number 04-7794. The record is void of any evidence that service of defendant’s arraignment date was attempted and returned in case number 05-3218. The record in case number 05-3218 only reflects that a certified letter regarding the bond forfeiture was returned unclaimed after several notices were left. This is insufficient evidence for the State to meet its burden in proving a diligent effort in securing defendant’s attendance, or that defendant absented herself from her residence in order to avoid detection, service, and prosecution, under Art. 579(A)(1), because there is no proof in case number 05-3218 that defendant was not amenable to service at the address and likewise prosecution.

Further, the unclaimed letters are insufficient to show that defendant’s presence could not be obtained through legal process, under Art. 579(A)(2), despite the State’s diligent effort to procure defendant’s attendance, because there was no record of any attempt at service.

The trial court’s reliance on the returned subpoena filed in a separate case to deny defendant’s motion to quash was an abuse of discretion because there was no 11?such evidence in the record in case number 05-3218. Considering the record in 05-3218 is devoid of any evidence of service related to the notice of the arraignment date, the State did not prove a diligent effort to obtain defendant’s presence was made in case 05-3218 because she was not amenable to service. See State v. Franklin, 10-792 (La.App. 4 Cir. 4/6/11), 62 So.3d 817, 819-20, where the State argued that defendant received actual notice to appear, under LSA-C.Cr.P. art. 579, using the issuance of a capias for defendant’s arrest as proof that defendant received notice of his arraignment date, and the court held that in light of the total absence in the record of any evidence that defendant received the subpoena noted in the minute entry, the State failed to meet its burden of showing an interruption of the prescriptive period. Accordingly, the motion to quash filed in case number 05-3218 is hereby granted. The guilty plea entered in case number 05-3218 is vacated.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

This review indicates that defendant’s sentence in case number 04-7794 is illegally lenient.

At the time of defendant’s conviction on February 14, 2011, LSA-R.S. 14:98(E)(l)(a), the penalty provision for fourth felony DWI offenders, provided in pertinent part:

I ia[T]he offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined $5,000 dollars. Two years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment.

Because the statute dictates a ten-year sentence, defendant’s five-year sentence is illegally lenient. More significantly, four years and ten months of the sentence was suspended, leaving defendant to serve only sixty days in jail, when the statute requires that two years of the sentence be served without the benefit of suspension of sentence. Considering that the sentence was imposed pursuant to a negotiated plea bargain, the issue becomes whether the illegal sentence can be corrected, or rather, whether it is an absolute nullity. Magana, 09-195 at 9, 27 So.3d at 898.

An appellate court has the authority to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1078, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842. The appellate court has this authority, even if the issue of the illegal sentence was not raised by the defendant or the State pursuant to LSA-C.Cr.P. art. 882. Id., 08-1226 at 8, 15 So.3d at 1081. An illegally lenient sentence imposed pursuant to a plea bargain is an absolute nullity if the plea bargain has an unlawful cause or a negotiated sentence prohibited by law. Id. A defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, p. 9 (La.11/28/01), 800 So.2d 790, 797

In State v. Guilbeaux, 99-591, p. 6-7 (La.App. 5 Cir. 11/10/99), 749 So.2d 16,18-19, this Court determined that the defendant received an illegally lenient sentence pursuant to a plea bargain. The defendant, who was statutorily ineligible 114for a suspended sentence because he had two prior felony convictions, received a suspended sentence. Id., 99-591 at 6, 749 So.2d at 18. This Court recognized that, as a general rule, when a guilty plea rests on a promise or agreement of the prosecutor or trial court, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id., 99-591 at 6, 749 So.2d at 18. Despite this recognition, this Court held that the plea bargain was “an absolute nullity which may not be confirmed,” vacated the defendant’s sentence, and remanded, reserving the defendant his right to withdraw his guilty plea Id., 99-591 at 7, 749 So.2d at 19.

In this case, defendant’s suspended sentence, which required her to serve only sixty days in prison, is not permissible by law because the applicable statute prohibits suspension of sentence for two years. See Guilbeaux, supra; See also Magana, supra, and State v. Smith, 08-528, p. 8 (La.App. 5 Cir. 1/13/09), 1 So.3d 802, 806, where this Court vacated defendant’s sentence reserving defendant’s right to withdraw his guilty plea, finding that defendant’s home incarceration sentence was prohibited by LSA-C.Cr.P. art 894.2, which sets forth eligibility for home incarceration. Considering the foregoing, defendant’s sentence which is prohibited by law is hereby vacated. This matter is remanded for re-sentencing in accordance with the law, reserving defendant’s right to withdraw her guilty plea.

| ^CONCLUSION

For the foregoing reasons, defendant’s conviction in case number 04-7794 is affirmed. Defendant’s sentence in case number 04-7794 is vacated. This matter is remanded for proceedings consistent with this opinion, reserving defendant’s right to withdraw her guilty plea.

The denial of defendant’s motion to quash in case number 05-3218 is reversed and hereby vacated. Hence, defendant’s plea and resulting conviction in case number 05-3218 is vacated.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      . The violation occurred on October 27, 2004. In connection with this offense, the record reflects that defendant was also charged with three misdemeanor violations in case number 04-7795: reckless operation of a vehicle, possession of an alcoholic beverage in an open container, and driving with a suspended license. Those offenses are not part of this appeal.

      . This violation occurred on April 27, 2005. In connection with this offense, the record reflects that defendant was also charged with three misdemeanor offenses in case number 05-3219: hit and run, driving with a suspended license, and reckless operation. These offenses are not part of this appeal.

      . At that time, defendant also entered guilty pleas to the misdemeanor charges in case numbers 04-7795 and 05-3219.

      . It is noted that commitments in both cases reflect the imposition of a $5,000 fine. However, the transcript reflects that the court only imposed one fine.

      . It is noted that there is no indication in the record that defendant was given actual notice of the arraignment date.

      . It is the trier of fact that determines the credibility of witnesses, and within the bounds of rationality, may accept or reject all, or any part of, the testimony. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Falcon, 06-798, p. 11 (La.App. 5 Cir. 3/13/07), 956 So.2d 650, 657.

      . The general rule is that the law in effect at the time of the commission of the offense is determinative of the penalty the defendant must receive. However, the Louisiana Supreme Court found the general rule did not apply to LSA-R.S. 14:98 because the specific provisions of the statute applied the law in effect at the time of defendant’s conviction. State v. Magana, 09-195, p. 8 (La.App. 5 Cir. 10/13/09), 27 So.3d 893, 897 n. 7, (citing State v. Mayeux, 01-3195, pp. 6-8 (La.6/21/02), 820 So.2d 526, 530-531).

      . It is also noted that defendant’s sentence is illegally lenient for several other reasons: During sentencing, defendant was sentenced to serve 10 hours of community service for each month she was out on probation; however, LSA-R.S. 14:98(E)(I)(b) requires forty eight-hour days of community service. It is further noted that the commitment, guilty plea colloquy, and addendum to the waiver of rights form reflect that defendant received special conditions which required her to undergo substance abuse treatment, to participate in a court-approved driver improvement program, and to have a Breath Analyzer System installed in her vehicle; however, these conditions were not imposed during sentencing. In addition, the guilty plea colloquy and addendum to the waiver of rights form reflect that defendant is to adhere to special conditions regarding home incarceration that are not referenced in the commitment and were not imposed during sentencing. Specifically, defendant was not to consume alcohol or frequent a place where alcohol is served, she was required to obtain employment, and her vehicle was required to be seized and sold. Nevertheless, considering that the sentence was vacated as an absolute nullity, discussion of these errors is pretermitted.


author: EDWIN A. LOMBARD, Judge.

text:
    Melvin J. BURMASTER v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2011-CA-0752.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 2011.

      Melvin J. Burmaster, Elizabeth Welsh Defley, New Orleans, LA, Eric J. O’Bell, Gauthier Houghtaling & Williams, L.L.P., Mark M. Bonura, Metairie, LA, John H. Smith, McKernan Law Firm, Baton Rouge, LA, for Plaintiff/Appellant.
    Arthur W. Landry, Arthur W. Landry and Jeanne Andry Landry, LLC, New Orleans, LA, Todd S. Schenk, Pro Hac Vice, Nicolas C. Mesco, Pro Hac Vice, Tressler, LLP, Chicago, IL, for Appellee/Great American E & D Insurance Company, L.L.C.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

| jThis class action lawsuit seeks compensation for property damage and emotional distress due to the failure of “hurricane protection levees” built by Plaquemines Parish Government; named defendants include Great American Excess and Surplus Insurance Company (“Great American”). This appeal is from a summary judgment granted to Great American. After de novo review, we affirm the trial court’s judgment finding that the policy issued by Great American to Plaquemines Parish Government did not cover the acts alleged by the plaintiffs.

Relevant Facts and Procedural History

The named plaintiffs in this class action, Donna Mumphrey, Michael Martin, Lizzie Williams, Mitchell Meyer d/b/a Mitchell Meyer Manufacturing, and Andrew Griffin, seek compensation from the local government of Plaquemines Parish for damages and losses of their property including, but not limited to relocation expenses, remediation expenses, diminution of property value, loss of use and enjoyment of property and inconvenience. The plaintiffs contended that such damages were caused by Plaquemines Parish Government’s failure to maintain, or its improper maintenance of, its hurricane protection levee on the east bank of Plaquemines Parish. The petition further asserts, “Plaquemines Parish | gGovernment’s failure to maintain the levee resulted in a breach of the levee which, but for Plaquemines Parish Government’s negligence, would have been adequate to hold against the storm surge occasioned by Hurricane Katrina.”

Along with several other insurers, the plaintiffs also sued the defendant in this issue, Great American, averring that the defendant issued an insurance policy to Plaquemines Parish Government that provides coverage for the damages at issue in this suit.

On November 17, 2010, Great American moved for summary judgment, asserting that its insurance policy does not provide coverage for the alleged governmental liability at issue in this case. The trial court granted Great American’s motion for summary judgment on February 16, 2011, dismissing all claims against the defendant with prejudice. The plaintiffs appeal from this judgment.

Applicable Law

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 4 (La.1/19/11), 57 So.3d 1002, 1006, citing Samaha v. Rau 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he|sor she will be able to meet the burden at trial ... Once the motion for summary judgment has been supported by the moving party, the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

“Interpretation of an insurance policy usually involves a legal question, which can be resolved properly in the framework of a motion for summary judgment.” Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. “An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.” Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. Louisiana Civil Code article 2046 provides that, “when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. Louisiana Ins. Guar. Ass’n v. Interstate Fire and Cas. Co., 630 So.2d at 764-65. The determination of whether a contract is clear or ambiguous is a question of law. Id.

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.

In this case, the defendant asserts that the policy as issued to Plaquemines Parish Government does not provide coverage for the plaintiffs’ alleged ^governmental liability claims, pursuant to the language contained in the Great American Excess and Surplus Insurance Company Policy.

The defendant moves for summary judgment pointing out that its policy does not cover the damages the plaintiffs filed. In support of its motion, the defendant submits a copy of the Great American Excess and Surplus Insurance Policy (“policy”) as issued to Plaquemines Parish Government. The defendant relies on the language of the Declarations page of the Policy that lists Plaquemines Parish Government’s business description as:

“AMATEUR ATHLETIC ASSOCIATION — softball/baseball/soccer, etc.” Further, the defendant points to the statement on the Liability Schedule and Premium Recap of the Policy which states that the $11,597, the entire premium for the Great American Policy, was paid for “40067 Athletics Programs — Amateur.” This evidence supports a finding that there is an absence of factual support for one or more elements of the plaintiffs’ claim.

In response, the plaintiffs submit a copy of the Policy and specifically refers to three unnumbered pages in the Policy headed Liability Schedule and Premium Recap, Common Policy Declarations, and Commercial General Liability — Declarations The plaintiffs emphasize that “Plaquemines Parish Government” is listed on the Policy as the “named insured.” The plaintiffs also point to the inclusion of “Broadened Coverage,” which is identified as “Premises/Operations,” | fim the Policy on the four express areas of the coverage listed Liability Schedule and Premium Recap.

Discussion

The appellant assigns as error: (1) the trial court erred by disregarding Plaquemines Parish Government’s assertion of coverage under the insurance policy in question; (2) the trial court erred in granting summary judgment in favor of Great American when the policy provisions clearly provide coverage; (3) the trial court erred granting summary judgment in favor of Great American considering the ambiguous language in the policy which must be construed against the insurer who issued the policy and in favor of the coverage for the insured; and (4) the trial court erred in granting summary judgment nullifying the rights of intervening third parties.

It is undisputed that the claims at issue in this lawsuit are for the alleged damages resulting from Plaquemines Parish’s governmental responsibilities with regard to Hurricane Katrina-related flooding, and not related, in any way, to the youth sports programs of the “Amateur Athletic Association of Plaquemines Parish.” Accordingly, the issue is whether the policy at issue provides for governmental risks at issue in this lawsuit. The plaintiffs focus on “Plaquemines Parish Government” as being the listed “named insured” on the policy as evidence to signify that it provides for the coverage of nature of the claims to this suit. However, it is undisputed that the policy was issued to Plaquemines Parish Government; the issue is to find what portion of governmental operations the policy covers. The policy clearly states that the business description for which the | ^coverage provides for is the amateur athletic programs of Plaquemines Parish and further that the entire premium of the Policy was paid for the athletic amateur programs.

Thus, the policy at issue only provides coverage for Plaquemines Parish Government’s youth athletic programs. It does not provide coverage for the plaintiffs’ claims made against Plaquemines Parish Government as set out in their petition.

Great American carried its burden of proof on summary judgment entitling it to a dismissal from this matter. The plaintiffs have failed to introduce any competent evidence to refute the conclusive evidence of the policy at issue providing only for the coverage of the youth sports programs of Plaquemines Parish. Accordingly, we find that there is no genuine issue of material fact and Great American is entitled to a dismissal from this suit as a matter of law.

Conclusion

After de novo review, we find that Great American Excess and Surplus Insurance Company met its burden of proof on motion for summary judgment of showing an absence of factual support for the plaintiffs’ claim. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

      . The defendant also submits extrinsic evidence for the intent of the parties. However, because there is no ambiguity in the language of the insurance policy, such evidence is inadmissible. Chalmette Retail Center, L.L.C. v. Lafayette Ins. Co., 2009-0217, p. 9 (La.App. 4 Cir. 10/16/09), 21 So.3d 485, 493.

      . The plaintiff class also submits a pleading filed by Plaquemines Parish Government, Plaquemines Parish Government Position on Great American E & S Insurance Company's Motion for Summary Judgment. However, this statement delves into the intent of the parties, which does not need to be addressed because of the clear language of the policy. La. Civ.Code art. 2046.

      . “Plaintiffs and the Class further itemize the elements of damage and recovery to include, but not limited to, the following: loss of/or damage to movable property, loss of/or damage to real property, repair and replacement cost of home and belongings, diminution of property value, loss of use of property, moving expenses, the cost of substitute housing, loss of enjoyment of property, expenses associated with remediation of property, personal injuries and/or emotional distress, economic losses including business losses, increased insurance costs, insurance deductibles, lost wages and salaries, and the expense of emergency relocation, expert and professional fees, court costs, and legal interest, and all other expenses/damages as shall be proven at trial.”


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Brian FULLILOVE.
    No. 11-KA-34.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| ^Defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal, and has filed a motion to withdraw as attorney of record. For the reasons which follow, we affirm defendant’s conviction and sentence, remand with instructions to correct an error patent, and grant appellate counsel’s motion to withdraw as attorney of record.

STATEMENT OF THE CASE

On September 23, 2004, the Jefferson Parish Grand Jury indicted defendant, Brian Fullilove, with second degree murder in violation of LSA-R.S. 14:30.1. Defendant pled not guilty at arraignment. On January 20, 2005, his motion to sever was granted, and his motion to suppress statements was denied. On March 21, 2005, the State amended the indictment to charge defendant with manslaughter in violation of LSA-R.S. 14:31, instead of second degree murder.

| a Also on that date, defendant withdrew his not guilty plea and pled guilty to manslaughter. The State provided no factual basis during the guilty plea colloquy, and no facts relating to the crime itself were elicited either at the hearing on the motion to suppress or the motion to quash the indictment. The amended indictment indicates that on May 10, 2004, defendant committed manslaughter resulting in the death of Coulton Lyell. The original indictment shows that the crime was committed with Luther D. McFarland, Morris D. McFarland, Yarnall McFarland, and Derrick Williams. It is noted that Defense Exhibit D-l, the arrest warrant, contained in the exhibit envelope provides many details regarding the offense, notably that defendant told Danny Jackson that he intended to rob the victim of cocaine on the evening in question.

The transcript indicates that defendant was sentenced to imprisonment at hard labor for 40 years with benefit of parole, probation, or suspension of sentence to run concurrently with the probation violation in case number 02-6581. However, the commitment reflects that his sentence was to be served without benefit of parole, probation, or suspension of sentence. This issue is discussed in this Court’s error patent review below.

On May 26, 2005, defendant filed a letter addressed to the trial judge asking for a reduction in sentence, but that request was denied on June 8, 2005. On December 28, 2005, defendant filed an application for post-conviction relief seeking an out-of-time appeal that was denied on January 3, 2006. Defendant filed a writ application with this Court challenging the trial judge’s ruling; however, this Court denied the writ. State v. Fullilove, 06-KH-125 (La.App. 5 Cir. 3/3/06) (unpublished writ disposition). On June 1, 2006, defendant filed another application for post-conviction relief that was denied on June 15, 2006. Defendant filed a writ application with this Court challenging the trial judge’s ruling; |4however, this Court denied the writ. State v. Fullilove, 06-KH-612 (La.App. 5 Cir. 9/1/06) (unpublished writ disposition).

The Louisiana Supreme Court transferred defendant’s writ application to this Court for consideration pursuant to State v. Cordero, 08-1717 (La.10/3/08), 993 So.2d 203 on October 10, 2008. On June 4, 2010, this Court remanded this case to the trial court with instructions to grant defendant an out-of-time appeal. State v. Fullilove, 08-WR-949 (La.6/4/10) (unpublished writ disposition). On July 16, 2010, the trial court granted defendant an out-of-time appeal.

DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court |fi“in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at-2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that a hearing was held on a generic omnibus motion to suppress and |fimotion to quash, but that defendant did not reserve his right to have the trial court’s denial of those motions reviewed on appeal. She further notes that the testimony adduced at the hearing demonstrates that the trial court’s rulings are in accord with the applicable law. Appellate counsel maintains that prior to defendant’s decision to change his plea from not guilty to guilty, he was fully informed of the legal consequences of changing his plea by both his trial counsel as well as the district court. She states that an examination of the plea colloquy reveals that the district court explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights.

Appellate counsel contends that the district court judge, informed defendant at the time he accepted the plea that he would impose a sentence of 40 years at hard labor to be served concurrently with the sentence on the probation violation. She notes that the waiver of rights form reflects that defendant was informed he would receive a 40-year sentence, and defendant’s attorney affirmed that he had reviewed all details of the plea agreement with defendant. Appellate counsel states that the trial judge subsequently imposed the agreed upon sentence, and defendant did not object to the sentence or move for reconsideration. Accordingly, she concludes that defendant is now restricted by law from appealing his sentence.

Appellate counsel has filed a motion to withdraw as attorney of record which states she notified defendant of the filing of the Anders brief and that defendant has a right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until March 9, 2011, to file a pro se supplemental brief. Defendant has not filed a supplemental brief.

An independent review of the record by this Court indicates errors patent, which are discussed below.

\ .ERROR PATENT REVIEW

This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals errors patent which are discussed below.

First, the trial judge imposed an illegal sentence when he ordered defendant’s 40-year sentence to be served concurrently with the probation violation in case number 02-6581. Only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrently or consecutively with the sentence on the later conviction. LSA-C.Cr.P. art. 901(C)(2); State v. Welch, 03-905 (La.App. 5 Cir. 11/25/03), 864 So.2d 204, 208, writ denied, 04-0171 (La.2/4/05), 893 So.2d 88. Thus, the trial court lacked authority to order defendant’s sentence to be served concurrently with the probation violation.

We do note that the trial judge imposed the illegal sentence in conformity with a plea agreement. However, a defendant does not have a constitutional or statutory right to an illegal sentence. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 831. Under LSA-C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence. But, the Louisiana Supreme Court has stated, “[a]n appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in dispositions of the cases favorable to the defendant.” State v. Campbell, 01-329 (La.11/2/01), 799 So.2d 1136 (per curiam).

In some cases, this Court has followed the edict of Campbell and declined to correct illegally lenient sentences resulting from plea agreements. In State v. Massey, 02-872 (La.App. 5 Cir. 2/11/03), 841 So.2d 862, writ denied, 03-805 (La. [10/17/03),s 855 So.2d 758, this Court refrained from correcting defendant’s illegally lenient sentence where defendant negotiated a 15-year sentence as a fourth felony offender and the mandatory sentence was life imprisonment. Also, in State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598, and State v. Collins, 04-751 (La.App. 5 Cir. 11/30/04), 890 So.2d 616, 620, this Court declined to correct the defendants’ illegally lenient sentences where the defendants were sentenced in accordance with plea agreements and did not receive mandatory fines.

In this case, defendant’s illegal sentence resulted from a negotiated agreement wherein he agreed to plead guilty in exchange for a 40-year sentence to run concurrent with the probation violation in case number 02-6581. Thus, we decline to exercise our authority to correct the illegal sentence.

Next, the transcript reflects that the trial judge sentenced defendant to 40 years imprisonment with benefit of parole, probation, or suspension of sentence, however, the commitment reflects that the sentence was to be served; without benefit of parole, probation, or suspension of sentence. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

LSA-R.S. 14:31 provides that a person convicted of manslaughter “shall be imprisoned at hard labor for not more than forty years.” There is no prohibition against parole, probation or suspension of sentence except in certain instances that appear to be inapplicable in the instant ease. However, LSA-C.Cr.P. article 893 provides that persons convicted of violent offenses listed in LSA-R.S. 14:2 B(4) (manslaughter) are to be denied the benefit of probation and suspension of sentence.

LThe transcript in the instant case reflects that the trial judge incorrectly ordered the sentence to be served with benefit of probation or suspension of sentence, and the commitment incorrectly reflects that defendant’s sentence is to be served without benefit of parole. As such, we order the trial court to amend the commitment to conform to that portion of the transcript, allowing parole eligibility. See

State v. Lewis, 10-386, 61 So.3d 78 (La.App. 5 Cir. 2/15/11). We also direct the clerk of court to transmit the corrected commitment to the officer in charge of the institution to which the defendant has been sentenced. Lewis, swpra; State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846.

Next, the record contains no factual basis for defendant’s guilty plea. A similar situation occurred in State v. Smith, 09-769, p. 3 (La.App. 5 Cir. 3/9/10), 38 So.3d 894, 896 n. 1, writ denied, 10-843 (La.11/5/10), 50 So.3d 812. In that case, this Court noted that ‘the due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.’ Id. This Court in Smith further stated that due process required a factual basis for a defendant’s guilty plea only when a defendant proclaimed his innocence or when the trial court was otherwise put on notice that there was a need for an inquiry into the factual basis. Id.

In the instant case, defendant has not proclaimed his innocence, and the trial court was not put on notice that there was a need for a factual basis. Additionally, defendant did not mention that a factual basis for his plea was not given. The State mentions it in its brief; however, the State contends that as long as the defendant’s guilty plea was made freely and voluntarily, the absence of a factual basis should | ipbe insufficient to nullify an otherwise valid guilty plea. In light of the foregoing jurisprudence, we find that a factual basis was not required in the instant case.

Accordingly, we find that appellate counsel’s brief adequately demonstrates that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. As such, we grant appellate counsel’s motion to withdraw and affirm defendant’s conviction and sentence. We also remand this matter to the trial court to amend the commitment to conform to the transcript, as discussed above.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW AS COUNSEL OF RECORD GRANTED; REMANDED WITH INSTRUCTIONS

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . LSA-R.S. 14:31 states that when the victim was killed as a result of a battery and under the age of ten years, the person convicted of manslaughter of the victim shall be imprisoned without the benefit of probation or suspension of sentence for at least ten years but not more than forty years.