author: AMY, Judge.

text:
    STATE of Louisiana v. Charles Edward GRACE.
    No. 10-1222.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Trent Brignac, District Attorney, Marcus L. Fontenot, Assistant District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Charles Edward Grace.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

| ;The defendant was convicted of two counts of armed robbery, one count of aggravated burglary, two counts of conspiracy to commit armed robbery and one count of conspiracy to commit aggravated burglary. The trial court sentenced the defendant to forty years at hard labor on the two armed robbery counts; twenty years at hard labor for the two conspiracy to commit armed robbery counts; fifteen years at hard labor for the aggravated burglary count; and fifteen years at hard labor for the conspiracy to commit aggravated burglary count. All sentences were ordered to be served concurrently. The defendant now appeals his sentences and convictions. For the following reasons, we affirm the defendant’s convictions on all counts and his sentences for aggravated burglary and conspiracy to commit aggravated burglary. We vacate the armed robbery and conspiracy to commit armed robbery sentences as indeterminate and remand for resentencing on the armed robbery and conspiracy to commit armed robbery convictions, with instructions.

Factual and Procedural Background

A jury found the defendant, Charles Edward Grace, guilty of two counts of armed robbery, two counts of conspiracy to commit armed robbery, aggravated burglary and conspiracy to commit aggravated burglary for his alleged involvement in a home invasion that occurred in Ville Platte, Louisiana on March 3, 2009.

The State alleged that the defendant planned for Antonio “Tony” Thomas and Gavin Herbert to rob Renee Nelson’s house. Gavin testified that the defendant planned the robbery and took them to pick up a sawed-off shotgun. Gavin further testified that the defendant drove them to Renee’s house and waited nearby while Gavin and Tony executed the home invasion.

12At some point during the robbery, Tony left with one of the victims, Kaninski Larnette, to get more money. Tony was eventually shot and killed during a struggle at Kaninski’s mother-in-law’s house. After the police arrived at Renee’s house, Gavin fled. He was apprehended the next day. The defendant was charged after Gavin informed the authorities about his involvement.

The jury convicted the defendant on all counts of the indictment. The trial court ordered a pre-sentence investigation and subsequently sentenced the defendant to forty years at hard labor on the two armed robbery counts; twenty years for the two conspiracy to commit armed robbery counts; fifteen years at hard labor for the aggravated burglary count; and fifteen years at hard labor for the conspiracy to commit aggravated burglary count. All sentences were ordered to be served concurrently.

The defendant appeals, asserting the following assignments of error:

1. The proof and conviction of both conspiracy to commit aggravated burglary and two counts of conspiracy to commit armed robbery, as well as the completed offenses of aggravated burglary, and two counts of armed robbery violate double jeopardy when those convictions are based on the same evidence.
2. The trial court erred in admitting the out-of-court hearsay statements of Tony Thomas implicating Charles Grace. The statements were not made in furtherance of the objective of the conspiracy, and in the absence of a prima facie case of conspiracy, the statements do not meet the exception to the hearsay rule.
3. The evidence in this case is legally insufficient to convict Charles Grace of any of the charges in the indictment. The sole evidence is the absurd and conflicting claims of the conspirators and perpetrators of the two home invasions which are the basis of these charges. These ruthless criminals tied up and robbed children, invaded two separate homes armed with dangerous weapons, and for some reason deserve the credibility that carried Charles Grace to a defacto Life Sentence.
|s4. Charles Edward Grace was convicted by a Non-Unanimous Verdict in Violation of the United States and Louisiana Constitutions.

Discussion

Sufficiency of the Evidence

In his third assignment of error, the defendant argues that the evidence in this case is legally insufficient to convict him. When presented with multiple issues on appeal, including a claim of insufficiency of the evidence, an appellate court should first resolve the insufficiency of the evidence claim. State v. Lawrence, 40,278 (La.App. 2 Cir. 3/15/06), 925 So.2d 727. When reviewing a sufficiency of evidence claim, “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.” State v. Freeman, 01-997, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The reviewing court should give “great deference to a jury’s determination to accept or reject the testimony of a witness in whole or in part” and should not “substitute its own appreciation of the evidence for that of the fact finder.” Lawrence, 925 So.2d at 736-37. The testimony of one witness, if the trier of fact accepts his or her testimony, is sufficient to support a conviction in the absence of internal contradiction or irreconcilable conflicts with physical evidence. State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352.

In State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writ denied, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004), the defendant recruited an accomplice to carry out a robbery, helped the [4accomplice in preparing for the robbery and waited across the street from the location where the robbery was carried out. His conviction was based primarily on the testimony of the accomplice who actually carried out the robbery. The accomplice’s testimony was corroborated, in part, by witness testimony that the defendant sought out the accomplice before the robbery. On appeal, the second circuit found that the evidence was sufficient and affirmed the defendant’s conviction for armed robbery.

Here, the defendant was convicted of armed robbery, conspiracy to commit armed robbery, aggravated burglary, and conspiracy to commit aggravated burglary.

Armed robbery is defined in La.R.S. 14:64(A) as follows:

Armed robbery is 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.

Aggravated burglary is defined in La. R.S. 14:60 as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Criminal conspiracy is defined in La. R.S. 14:26(A) as follows:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
1 -If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.

Further, physical presence at the scene of a crime is not a requirement to be convicted as a principal to the crime. Louisiana Revised Statutes 14:24 states that “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

Renee’s daughter, M.N. and her cousin, K.J., both testified that, at approximately 10:00 p.m., Renee’s fiancé, Jowaski Frank, dropped them off at Renee’s house. M.N. and K.J. testified that, when they entered the house, they were confronted by Tony and Gavin, who were armed and masked. Both of the girls testified that they knew Gavin, but did not recognize his voice because he did not speak much during the robbery. M.N. testified that she recognized the silver handgun wielded by one man as the one from her mother’s bedroom. The men tied up the girls on M.N.’s bed and demanded money and drugs. They eventually took approximately fifty-five cents from M.N.’s pocket and eighty dollars from K.J.’s purse.

Testimony revealed that Renee, Jowa-ski, his mother, Lisa Frank, and their friend Wilinsky Thomas returned to the house at approximately 10:30 p.m., and that Wilinsky’s stepbrother, Kaninski, dropped by about that time. The adults socialized in the garage for a while. Tony and Gavin eventually forced the adults into the house and repeatedly demanded money from them. Several adults testified that Tony and | r,Gavin told them they were “from Baton Rouge” and that “Robert Drummer” sent them to rob them. Jowa-ski testified that he heard one masked man say that “Charles” had “sent him for the money and he know it’s there, he knows the money is here[.]” Jowaski testified that they took a dollar from him and Ka-ninski testified that they took approximately seven hundred dollars from him.

Eventually, Kaninski told the men he could take them to get more money and that he told Tony that he would “give him some money to leave [them] alone.” Ka-ninski testified that Tony, brandishing the silver handgun, forced him to drive to his mother-in-law’s house. According to Ka-ninski’s testimony, while they were in the car, Tony told him that the defendant sent the men to Renee’s house and he “paid them $5,000 to kill everybody in the house.” Kaninski also testified that Tony made a phone call and asked about the money that was supposed to be in Renee’s house. Kaninski testified that the person-on the phone told them to meet him on a road behind Tobacco Tavern, but that they did not meet the person although they drove to that location. Kaninski thought that the person on the phone was the defendant, but offered no other explanation for that assumption other than “who else he gonna call.”

According to Kaninski, while Tony was attempting to commit a second home invasion at his mother-in-law’s house, he was shot and killed during a struggle. Kanin-ski then alerted the police to the hostage situation at Renee’s house. When the police arrived at Renee’s to investigate, Gavin ran out of the back door. Although one of the responding officers attempted to apprehend him, he managed to escape. He hid under a trailer until he was captured the next day. In her incident report, the officer stated that she observed a second suspect run out of the back door. However, at trial, the officer stated that she had confused one of the victims for a suspect ]7because he was wearing dark clothing. Additionally, Wilinsky testified about a “third robber” who stayed in the kitchen. No other witness testified that there were more than two robbers.

Gavin testified for the State at trial, and stated that he was not promised anything for his testimony and that he had not made any “deals” with the State or the district attorney’s office. Gavin testified that he and Tony met with Tony’s uncle, the defendant, on the afternoon of March 3, 2009. According to Gavin’s testimony, the defendant had a “mission” for them, which was to get money from Kaninski. Gavin testified that the defendant told them the layout of the house they were supposed to rob, that there was supposed to be at least fifty thousand dollars, and where a silver handgun was located. Gavin testified that he, Tony, and the defendant were supposed to split the money. Gavin also testified that the defendant told Tony to kill someone if he had to because they would “testify on [him]” if they were caught.

According to Gavin’s testimony, the defendant drove to an abandoned house on the other side of town, where Tony retrieved a sawed-off shotgun from under a couch. Tony then picked up some dark clothing from his stepmother’s house and the defendant dropped both Tony and Gavin off at Gavin’s house to change. Gavin further testified that the defendant picked up both men and dropped them off outside Renee Nelson’s house at about 9:30 p.m. According to Gavin, he and Tony were to break into the house while the defendant waited across the street. Gavin testified that Tony called the defendant to make sure the “coast was clear” before they broke down the back door. Additionally, Gavin testified that the defendant would pick them up when they called to say they had the money. Generally, Gavin’s testimony corroborated the other witnesses’ testimony regarding the robbery of Renee’s house. IsGavin explained Tony’s statements that they were “from Baton Rouge” and that “Robert Drummer” sent them as intended to “throw them off and stuff....”

Jowaski, Wilinsky and Kaninski all testified that they recognized Tony’s voice. In particular, Kaninski testified that he had some altercations with the defendant and with Tony in the past. Renee testified that she and the defendant had dated at some point, and that the defendant used to have a key to her house but that he had given it back. Additionally, Renee identified as hers the silver handgun that the police seized from Kaninski’s mother-in-law’s house.

The defendant’s girlfriend, Shalana Dou-cet, testified that the defendant was coming down with the flu that day. She testified that Tony, Gavin and “another little guy” came by the house about 4:00 or 5:00 p.m. and that the defendant gave them a ride somewhere. Shalana testified that, after that, the defendant was in or around the house with her until 8:00 p.m. when she went to take a nap. She further testified that, when she woke up at about 10:00 p.m., the defendant was sleeping on the couch at her mother’s house. According to Shalana’s testimony, Tony called between 10:00 and 10:30 p.m. and asked for a ride, but the defendant refused. Shalana agreed with the State’s characterization that Tony was “angry” during that phone call. Shalana testified that, on her way to work between 10:30 and 11:00 p.m., she talked to the defendant on her cell phone.

Several other witnesses testified that they saw Gavin, Tony and another unidentified man with the defendant at about 4:00 or 5:00 p.m. and that the defendant gave them all a ride somewhere. Fernella Tez-eno, Tony’s stepmother, testified that the defendant dropped Tony off at her house about 5:00 or 5:30 p.m. She testified that there was no one else in the defendant’s car and that he left alone. Additionally, |flshe testified that Tony left her house soon thereafter and that she did not see who he met.

Viewing the evidence in the light most favorable to the prosecution, the testimony and evidence is sufficient that the jury could have reasonably concluded that Tony and Gavin committed an armed robbery when they took money from M.N., and Kaninski while armed with the sawed-off shotgun and the silver handgun. M.N., and Kaninski testified that they did not want to give Tony and Gavin their money.

Further, the testimony and evidence is sufficient to establish that Tony and Gavin committed an aggravated burglary when they entered Renee’s house without authorization (by breaking down the back door) and that, although they arrived after the break-in, M.N., K.J., Renee, Jowaski, Lisa, Wilinsky and Kaninski were all present in the house. Further, as discussed above, the evidence is sufficient to establish that Tony and Gavin intended to commit a felony therein — armed robbery. When Tony and Gavin broke into the house, they were already armed with a dangerous weapon, i.e., the sawed-off shotgun, and they further armed themselves by stealing the silver handgun from Renee’s bedroom drawer.

Although the defendant was not physically present in Renee’s house when these offenses occurred, his presence was not required for the jury to convict him as a principal to the offenses of armed robbery and aggravated burglary. The testimony supports the jury’s conclusion that the defendant was involved in the commission of those offenses. Gavin testified that the defendant not only conspired to commit the crime, but that he drove Tony and Gavin to Renee’s house, acted as a lookout and was, at least initially, intended to be the “getaway driver” once the robbery was 1 ^completed. Gavin’s credibility was bolstered by the general corroboration by other witnesses of the events that happened at Renee’s house. We note that, although the defendant offered alibi testimony, the jury was free to accept or reject that testimony. Further, the alibi testimony did not necessarily establish that the defendant was either at Shalana’s mother’s or grandmother’s house at the time of the robbery.

As for the conspiracy charges, Gavin’s testimony was sufficient to establish that he, the defendant, and Tony agreed to commit an armed robbery with the purpose of “getting some money from Kanin-ski” and that they made an act in furtherance of the conspiracy when they drove to the abandoned house to retrieve the sawed-off shotgun eventually used in the crime. That testimony was corroborated, in part, by defense witnesses who testified that the defendant drove Tony, Gavin, and “another little guy” at the approximate time that Gavin claimed they planned the robbery.

As the finder of fact, the jury was free to accept,, in whole or in part, the testimony the victims and Gavin and to reject, in whole or in part, the defense witnesses’ testimony that the defendant only gave a ride to Tony, Gavin and “another little guy.” The jury could observe the demean- or of all the witnesses, and was in the best position to weigh their testimony and evaluate their credibility. We find that any rational trier of fact could have found that the State sustained its burden of proving all of the elements of the charged offenses beyond a reasonable doubt.

The defendant additionally argues that the trial court’s failure to instruct the jury regarding the “untrustworthiness of accomplice testimony” warrants reversal of his convictions. In support of this argument, the defendant cites State v. May, 339 So.2d 764 (La.1976). In May, the supreme court held that “[a]s a general principle of Louisiana law, a conviction can be sustained on the uncorroborated testimony of |na purported accomplice, although the jury should be instructed to treat such testimony with great caution.” The defendant did not request such a jury instruction nor object about the lack thereof at trial. See State v. Rabun, 38,655 (LaApp. 2 Cir. 8/18/04), 880 So.2d 184. Therefore, we do not consider this argument because no request for the instruction was made at trial.

This assignment of error lacks merit. Admissibility of Accomplice Testimony

In his second assignment of error, the defendant asserts that the trial court erred in admitting the out-of-court hearsay statements of Tony Thomas. The defendant argues that Tony’s statements to Jowaski that “Charles” sent Gavin and Tony to rob them and to Kaninski that the defendant sent them to rob them were not made in furtherance of the conspiracy but “simply described or related events that supposedly occurred previously in furtherance of the conspiracy.” The defendant also argues that the statements’ admittance violates his constitutional right to confront his accusers.

Louisiana Code of Evidence Article 801(D)(3)(b) defines as non-hearsay “[a] statement by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established[.]” The trial court’s determination of the admissibility of a co-conspirator’s statements will not be overturned absent clear error. State v. Cox, 04-42 (La.App. 3 Cir. 6/16/04), 876 So.2d 932.

The state establishes a prima facie evidence of a conspiracy when it introduces evidence that, if unrebutted, would be sufficient to establish the facts of the conspiracy. State v. Howard, 04-499 (La.App. 3 Cir. 11/17/04), 888 So.2d 375, writ denied, 04-3216 (La.4/8/05), 899 So.2d 13. The standard for determining the | ^admissibility of co-conspirator statements is less than that required to convict the defendant of conspiracy. Id., citing State v. Matthews, 26,550 (La.App. 2 Cir. 12/21/94), 649 So.2d 1022, 1029, writ denied, 95-435 (La.6/16/95), 655 So.2d 341. In addition to establishing a prima facie case of conspiracy, the state has to establish that the statement was made while the conspiracy was ongoing, and that the statement was made in furtherance of the conspiracy. Cox, 876 So.2d 932.

In State v. Lobato, 603 So.2d 739 (La.1992), the supreme court held that it was not necessary for an accomplice’s statements to actually further the objective of the conspiracy; instead, they only needed to “promote” the conspiratorial objective. Similarly, in State v. Tasby, 639 So.2d 469 (La.App. 2 Cir.1994), writ denied, 648 So.2d 1336 (La.1995), the second circuit held that one co-conspirator’s statement to another co-conspirator was admissible because it explained the purpose of lending a gun to the defendant and was therefore in furtherance of the conspiracy. Compare State v. Leonard, 05-42 (La.App. 5 Cir. 7/26/05), 910 So.2d 977, writ denied, 06-2241 (La.6/1/07), 957 So.2d 165 (finding that the victim/co-conspirator’s statements to a girlfriend that he was driving to Memphis to buy drugs was not in furtherance of the conspiracy but was only intended to inform his girlfriend of his whereabouts).

The defendant relies, in part, on the second circuit’s holding in State v. Jackson, 31,433 (La.App. 2 Cir. 1/20/99), 726 So.2d 1061, writ denied, 99-2250 (La.12/17/99), 751 So.2d 876, which noted that statements made by a co-conspirator to the police were not admissible as accomplice testimony because the co-conspirator had withdrawn from the conspiracy at that point and, therefore, the statements could not be viewed as furthering the objective of the conspiracy.

| iSIn this case, through Gavin’s testimony about the defendant’s involvement, the State established a prima facie case of conspiracy. The defendant argues that the statements were not made while the conspiracy was ongoing. We find the defendant’s argument unpersuasive. Although the original objective of the conspiracy was to rob Renee’s house (or Kaninski), when the conspirators did not find the promised amount of money at Renee’s house, the objective of the conspiracy changed to involve robbing another location.

Further, although the defendant argues that statements by a co-conspirator about his involvement in planning the robbery cannot be in furtherance of the conspiracy, the State argued that “the testimony is going to show that Jowaski Frank is going to say Charles sent us over here, he paid us $5,000 to come over here, he said you had some money. Legitimizing to the victim we know you have money because Charles Grace sent us here, we think is in furtherance of the act being sought.” At trial, Jowaski testified to that effect. The trial court did not articulate its reasons for admitting Tony’s statements. Given the deference due the trial court’s determination, we do not find that the trial court was clearly wrong in finding the statements admissible as non-hearsay under La. Code Evid. art. 801(D)(3)(b).

The defendant also argues that the admission of Tony’s statements about his involvement in the conspiracy violated his right to confront his accusers under the Sixth Amendment to the United States Constitution and La.R.S. 15:273. Although the defendant objected to the admission of Tony’s statements on evidentia-ry grounds, the record does not reveal that the defendant raised the constitutional issue at trial. The defendant’s argument does not comply with the contemporaneous, objection rule. La.Code.Crim.P. art. 841; see State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366, writ denied, 00-208 (La.8/31/00), 766 So.2d 1274. Therefore, we do not consider this argument.

This assignment of error is without merit.

Double Jeopardy

The defendant asserts that his convictions for armed robbery and aggravated burglary as well as his convictions for conspiracy to commit armed robbery and conspiracy to commit aggravated burglary are violative of the constitutional protections against double jeopardy.

The constitutional protections against double jeopardy prevent a second prosecution for the same offense after an acquittal or conviction, and prevent multiple punishments for the same offense. State v. Smith, 95-061 (La.7/2/96); 676 So.2d 1068. Our courts apply two separate tests — the Blockburger test and the “same evidence” test — in order to determine whether offenses are the same for double jeopardy purposes. The Blockbur-ger test, derived from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), requires the court to determine whether each crime requires proof of an additional fact that the other does not. Id. The “same evidence” test is as follows:

If the evidence required to support a finding of guilty of one crime would also have supported a conviction for the other, the two are the same under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a conviction, not all of the evidence introduced at trial.

Smith, 676 So.2d at 1069-70. The remedy for a double jeopardy violation for multiple punishments for the same offense is to vacate the conviction and sentence |1ñfor the less severely punishable offense and affirm the conviction and sentence for the more severely punishable offense. Rabun, 880 So.2d 184.

The supreme court addressed whether a conviction as a principal to an offense and for conspiracy necessarily violated the protections against double jeopardy in State v. Knowles, 392 So.2d 651 (La.1981). The court said:

[I]n order to be convicted as a principal, there must be proof that the crime was committed; a conviction for conspiracy does not depend upon the actual commission of the crime, but only upon an act in furtherance of the conspiracy.
Similarly, the proof required to convict an accused as a principal to a crime does not necessarily involve the same evidence that is needed for a conviction of conspiracy. The term “principal” is broadly defined to include the actual perpetrator of the crime as well as one who assists in the perpetration. The crime of conspiracy is reached between two or more persons and an act done in furtherance of the agreement. It is at least conceivable that an accused may be proven to have assisted in a crime without introducing any evidence as to agreement. In this sense, the two crimes do not involve the same evidence; they are not the “same evidence.”

Id. at 654-55. (Citations omitted.)

In Rabun, 880 So.2d 184, the defendant was convicted of armed robbery and conspiracy to commit armed robbery. The conviction was based, in part, on a co-conspirator’s testimony that the defendant planned the robbery, helped surveil the convenience store for cameras, dropped off the co-conspirator to perform the robbery and picked him up after the crime was completed. The second circuit held that the defendant’s convictions for armed robbery and for conspiracy violated double jeopardy protections because the “same evidence” was used to prosecute both crimes.

Conversely, in State v. Alexander; 43,796 (La.App. 2 Cir. 1/14/09), 2 So.3d 1168, writ denied, 09-368 (La.11/6/09), 21 So.3d 299, the police conducted a 11fi“buy/bust” operation using an informant. The informant contacted one of the defendant’s co-conspirators, who called the defendant and arranged for him to meet her to sell cocaine. The informant gave his money to the accomplice, who met with the defendant, purchased the cocaine and delivered it to the informant. The informant gave the co-conspirator more money, and she again met with the defendant to obtain cocaine and deliver it to the informant. The defendant was subsequently convicted of distribution of cocaine, conspiracy to distribute cocaine, and possession of cocaine.

On appeal, the second circuit held that the convictions did not violate the protections against double jeopardy. The second circuit reasoned that the conspiracy had already been completed when the defendant agreed with the accomplice to sell cocaine and committed an act in furtherance by traveling to meet the accomplice, and that the principal crime was completed when the defendant transferred the cocaine to his accomplice, who then delivered it to the informant. Thus, in the their estimation, the “same evidence” was not required to support a conviction for both conspiracy to distribute cocaine, distribution of cocaine, and possession of cocaine. See also State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.2d 352 (evidence sufficient to support convictions of armed robbery and conspiracy to commit armed robbery); State v. Farmer, 497 So.2d 777 (La.App. 3 Cir.1986), writ granted in part on other grounds, 503 So.2d 469 (La.1987) (conspiracy to possess 40,000 pounds of marijuana and conspiracy to possess 10,-000 pounds of marijuana, although temporally overlapping, were separate crimes).

Here, under the Blockburger test, the crimes of conspiracy to commit armed robbery, armed robbery, conspiracy to commit aggravated burglary and aggravated burglary require proof of at least one other fact that the others do not.

| 17The defendant urges the court to rely on Rabun, 880 So.2d 184, in support for his proposition that he cannot be convicted for as a principal and for the underlying conspiracy. He argues that the overt act necessary for the conspiracy charge is also the “aiding or abetting” necessary to the principal charge and thus, his convictions do not comport with the “same evidence” test.

With regard to the “same evidence” test, we do not find the defendant’s reliance on Rabun persuasive. Here, there were two separate and distinct periods of activity upon which the offenses were based. Thus, following the reasoning of Knowles, 392 So.2d 651, and Alexander, 2 So.3d 1168, the “same evidence” was not required to convict the defendant on the conspiracy charges and the principal crimes.

The conspiracy was completed when the defendant agreed with Tony and Gavin to rob and burgle Renee’s house and when the trio committed an act in furtherance thereof by retrieving the sawed-off shotgun from the couch at an abandoned house. The principal crime was complete when Tony and Gavin went on to commit an armed robbery and aggravated burglary of Renee’s house and its occupants, with the defendant acting as the lookout and getaway driver. Therefore, the defendant’s convictions do not violate the protections against double jeopardy.

This assignment of error is without merit.

Unanimity of Jury

The defendant argues that he was convicted by an unconstitutional non-unanimous jury. Ten jurors found the defendant guilty of all counts of the indictment. The other two jurors found him not guilty on all counts of the indictment.

Louisiana Constitution Article I, § 17(A) provides that a case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of 11Rtwelve persons, ten of whom must concur to render a verdict.” See also La. Code Crim.P. art. 782(A).

This court has previously rejected arguments that a non-unanimous guilty verdict violates the state and federal constitutions. See State v. Sumrall, 09-1216, (La.App. 3 Cir. 4/7/10), 34 So.3d 977, writ denied, 10-1020 (La.12/10/10), 51 So.3d 722; State v. Juniors, 05-549 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137, writ denied, 06-267 (La.9/15/06), 936 So.2d 1257, cert. denied, 549 U.S. 1226, 127 S.Ct. 1293, 167 L.Ed.2d 110 (2007). The defendant posits that this principle should be revisited, “particularly since a 10-2 verdict was reached on the testimony of a co-conspirator, with no physical evidence.” We find no reason to deviate from the well-settled principle that a non-unanimous jury is not required to render a guilty verdict.

Accordingly, this assignment of error is without merit.

Errors Patent

Pursuant to 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 three errors patent.

The transcript of the sentencing hearing reflects that the trial court imposed the following sentences:

On the two counts of Armed Robbery in violation of Louisiana Revised Statute Title 14, Section 64, Pm going to sentence you to 40 years at hard labor with the Department of Corrections. On the Conspiracy to Commit Aggravated Burglary, I’m going to sentence you to 15 years with the Department of Corrections at hard labor. On the two counts of Conspiracy to Commit Armed Robbery, I’m going to sentence you to 20 years. They shall all run concurrently.

Okay, I did not sentence you on the Aggravated Burglary, I’m going to sentence him to 15 years at hard labor with the Department of Corrections. Everything will run concurrently.

| ^However, the court minutes of the sentencing hearing state, in pertinent part, that “[t]he Court sentenced the defendant for the charges of Armed Robbery (2 counts) to serve 40 years at hard labor with the Department of Corrections on each count to run concurrently, serve 20 years at hard labor on each count to run concurrently for the charges of Conspiracy to Commit Armed Robbery (2 counts).... ” (Emphasis added.)

In instances where the minutes and the transcript differ, the transcript must prevail. State v. Kimbrough, 09-1564 (La.App. 3 Cir. 6/2/10), 38 So.3d 1258. Louisiana Code of Criminal Procedure Article 879 states, “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” Where the trial court has imposed one sentence for multiple counts, this court has previously set aside the defendant’s sentence on those counts as indeterminate and remanded the case to the trial court for resentencing on each count. State v. Monceaux, 04-449 (La.App. 3 Cir. 10/20/04), 885 So.2d 670. We conclude that the defendant’s sentences as to the two counts of armed robbery and the two counts of conspiracy to commit armed robbery are indeterminate, and we vacate those sentences and remand to the trial court for resentencing on each of those counts.

Additionally, the trial court incorrectly advised the defendant as to the time limitation for filing an application for post-conviction relief. At sentencing, the trial court stated, “I further advise you that by virtue of Louisiana Code of Criminal Procedure Article 930.8 there is a two year prescriptive period for you to apply for post conviction relief.” Louisiana Code of Criminal Procedure Article 930.8 provides that the defendant has “two years after the judgment of conviction and sentence has become final” to apply for post-conviction relief.

12pThus, we instruct the trial court to inform the defendant of the correct provisions of article 930.8 within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. See State v. Miller, 10-237 (La.App. 3 Cir. 11/3/10), 49 So.3d 1028.

Finally, immediately prior to sentencing, the trial court denied the defendant’s Motion for Post Verdict Judgment of Acquittal and Alternative Motion for New Trial. Louisiana Code of Criminal Procedure Article 873 requires a twenty-four-hour delay between the denial of a motion for new trial or a motion in arrest of judgment and the imposition of sentence. Because the defendant has not argued that his sentence is excessive on appeal and does not claim he was prejudiced by the lack of delay, we find that any error is harmless. See State v. Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243 (La.12/17/07), 970 So.2d 531.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions on all counts, affirm his sentences for aggravated burglary and conspiracy to commit aggravated burglary, vacate his sentences for armed robbery and conspiracy to commit armed robbery as indeterminate, and remand to the trial court for resentencing on those charges. The trial court is directed to inform the defendant of the correct provisions of article 930.8 and to file written proof in the record that the defendant received the notice.

CONVICTIONS AFFIRMED. AGGRAVATED BURGLARY AND CONSPIRACY TO COMMIT AGGRAVATED BURGLARY SENTENCES AFFIRMED. ARMED ROBBERY AND CONSPIRACY TO COMMIT ARMED ROBBERY SENTENCES VACATED. REMANDED FOR RESENTENCING ON THE ARMED ROBBERY AND CONSPIRACY TO COMMIT ARMED ROBBERY CONVICTIONS, WITH INSTRUCTIONS.

      . Initials are used in place of the names of minor children pursuant to La.R.S. 46:1844(W).
      Additionally, Renee’s daughter is variously referred to as "A.N.” and "M.N.” in the record. We adopt the initials used in the indictment, "M.N.”

      . The defendant was only charged with the armed robbery of Kaninski and M.N. and conspiracy to commit armed robbery of Ka-ninski and M.N.

      . Jowaski testified that Tony stated that "Charles” had "sent for the money and he know it’s there, he knows the money is here ... if [they didn’t] give the money everybody gonna die.”


source: Caselaw Access Project

author: PETERS, J. AMY, J.,

license: Public Domain

text:
    Darren DUGAS, et al v. BAYOU TECHE WATER WORKS, et al.
    No. 10-1211.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      J.P. D’Albor Haik, Minvielle & Grubbs, New Iberia, LA for Plaintiffs/Appellants, Darren Dugas, et al.
    Robert E. Kerrigan, Jr., Joshua G. Keller, Deutsch, Kerrigan & Stiles, LLP, New Orleans, LA, for Defendant/Appellee, Bayou Teche Water Works, Inc.
    Raymond Pajares Ashley Carter, Pa-jares & Schexnaydre, LLC, Mandeville, LA, for Defendant/Appellee, Bayou Teche Water Works, Inc.
    Timothy G. Schafer, Rachel S. Kellogg Schafer & Schafer, New Orleans, LA, for Defendant/Appellee, American Alternative Insurance Co.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

liThe plaintiffs, Darren Dugas, Glen-ward Dugas, and Cheryl Dugas (sometimes hereinafter collectively referred to as “the Dugas plaintiffs”), brought suit against Bayou Teche Water Works, Inc. (Bayou Teche) and its insurer, American Alternative Insurance Company, seeking to recover damages they claim to have sustained as a result of Bayou Teche’s injection of brine water into an irrigation canal in Iberia Parish. The trial court granted Bayou Teche’s peremptory exception of prescription and dismissed the Du-gas plaintiffs’ demands against that defendant. The Dugas plaintiffs appeal the trial court’s judgment sustaining the exception. For the following reasons, we reverse the trial court’s grant of the exception of prescription and remand the matter to the trial court for further proceedings consistent with this opinion.

DISCUSSION OF THE RECORD

We must begin by noting that while the record on appeal is rather large, the evi-dentiary record on the issue before us is exceedingly slight. Thus, most of the background available for this court’s review can only be found in the Dugas plaintiffs’ August 7, 2007 petition for damages.

That petition states that Glenward and Cheryl Dugas own eighty-five acres of land along a irrigation coulee in Iberia Parish, that Glenward Dugas leases an adjoining seventy-six acre tract of land from Darren Dugas, and that both tracts are used for crawfish and rice farming. According to the specifics of the petition, the irrigation coulee is the source of irrigation water for the farming operations. The petition asserts that Bayou Teche operates a potable water treatment plant in Iberia ^Parish and its continuous illegal discharge of brine into the irrigation coulee has caused damages to the farm operations as well as the land itself. In their petition, the Du-gas plaintiffs assert that Bayou Teche negligently caused their damages by:

(a)Failing to properly discharge its brine in accordance with the Louisiana Department of Quality rules and regulations;
(b) Improperly introducing brine into a waterway in a manner that exceeded safe limits;
(c) Failing to take steps to mitigate its brine discharge after being apprised of its harmful effects; and
(d) All other acts and or omissions as will be shown at the trial of this matter.

The Dugas plaintiffs amended their original petition on April 30,' 2010, asserting that they first became aware of Bayou Teche’s “illegal discharge” in September of 2006, and that they notified Bayou Teche’s Board of Directors of their complaints on October 5, 2006. They further asserted in their supplemental and amending petition that Bayou Teche continued its “illegal discharge” until November 1, 2007.

In its October 1, 2007 answer to the original petition, Bayou Teche denied all of the allegations of the Dugas plaintiffs’ original petition except to acknowledge that it “is a corporation organized under the laws of the State of Louisiana,” and that at all times, it had “complied with all statutes and regulations applicable to its operation.” Thereafter, the pleadings become voluminous, but primarily from various deposition notices and other procedural pleadings.

Bayou Teche filed the exception of prescription now at issue before this court on October 19, 2009, and the exception came for trial on August 27, 2010. At the trial on the exception, the only evidence offered and accepted by the trial court was ^exhibits attached to a memorandum filed on behalf of Bayou Teche in support of its exception of prescription. The memorandum with ten exhibits attached was filed with the exception of prescription. The ten exhibits address only Bayou Teche’s affirmative defense that the Dugas plaintiffs’ own negligence was the legal cause of their damages and can be described as follows:

Exhibit 1 — Map of the general area in. question.
Exhibit 2 — Excerpts from a deposition of Glenward Joseph Dugas.
Exhibit 3 — Excerpts from a deposition of Robert P. Romaire.
Exhibit 4 — Copy of the Dugas plaintiffs’ original petition.
Exhibit 5 — Excerpts from a deposition of Kimberly B. Gardner.
Exhibit 6 — Excerpts from a publication entitled Fundamentals of Aquaculture. Exhibit 7 — Excerpts from a publication entitled Louisiana Crawfish Production Manual.
Exhibit 8 — Excerpts from a publication entitled 2009 Rice Varieties & Management Tips.
Exhibit 9 — Excerpts from a deposition of Thomas Hymel.
Exhibit 10 — Excerpts from a deposition of Mark Shirley.

Bayou Teche’s reply memorandum was filed on April 23, 2010, and contains no attachments.

While we do note that the above exhibits constitute the only evidence offered and accepted at the hearing, the record does contain a reference to an effort by counsel for the Dugas plaintiffs to file evidence into the record. In the exchange between counsel for the Dugas plaintiffs and the trial court, counsel suggested that he wanted “to make sure that we can introduce all the exhibits.” He stated that he had not done so because the exhibits were extremely voluminous, but that he wished to retain the opportunity to provide them to the trial court through its clerk. After a discussion concerning ways to reduce the size of the exhibits, the trial court stated it |4would leave the record open for counsel for the Dugas plaintiffs to submit the appropriate exhibits. Additionally, the trial court asked counsel exactly what exhibits would be offered and counsel suggested that they would include the depositions of Glenn Dugas and Ricky Frederick, a representative of Bayou Teche, and certain discovery responses from Bayou Teche. The record contains nothing to suggest that these exhibits were subsequently filed.

The trial court took the matter under advisement and, on June 22, 2010, issued written reasons for judgment explaining why it sustained the exception of prescription. On that same day, the trial court executed a judgment granting the exception of prescription and dismissing the Du-gas plaintiffs’ claims against Bayou Teche. The Dugas plaintiffs timely appealed this judgment.

OPINION

The peremptory exception of prescription is provided for in La.Code Civ. P. art. 927(A)(1). When the exception of prescription is tried before the trial on the merits, “evidence may be introduced to support or controvert [the exception] when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 931.

When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). However, if prescription is evident on the face of the pleadings, as it is in the instant case, the burden shifts to the plaintiff to show the action has not prescribed. Id.; Younger v. Marshall Ind., Inc., 618 So.2d 866, 869 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993).

Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.

If evidence is introduced, the trial court’s findings of fact are then subject to a manifest error analysis. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227. If no evidence is introduced, then the previewing court simply determines whether the trial court’s finding was legally correct. Dauzart v. Fin. Indent. Ins. Co., 10-28 (La.App. 3 Cir. 6/2/10), 39 So.3d 802.

In concluding that the Dugas plaintiffs’ claims had prescribed, the trial court relied on La.R.S. 9:5624, which provides that “[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” In reaching this conclusion, the trial court made factual findings which are not supported by the evi-dentiary record now before us. The trial court described Bayou Teche’s corporate structure, beginnings, purpose, and operating history; asserted that the waterway at issue traverses at least forty individual tracts of land; asserted a property ownership history of the Dugas plaintiffs’ properties; and asserted facts associated with the damage claims not in the evidentiary record. To the extent that these factual findings are manifestly erroneous, we must set them aside and review only the existing evidentiary record to see if Bayou Teche carried its burden of proof.

In identifying the issues raised by their single assignment of error that the trial court erred in granting the exception of prescription pursuant to La.R.S. 9:5624, the Dugas plaintiffs assert that the eviden-tiary record contains nothing to establish that Bayou Teche is a legal entity covered by the statute; and that even if Bayou Teche could be considered as covered by the statute, nothing in the evidentiary record establishes an “acceptance of a ‘public works’ project” or that the damages sustained were incurred for a “public purpose” or as a “necessary consequence” of the public |nwork. Thus, they argue, the trial court erred in concluding that their claims against Bayou Teche prescribed pursuant to La.R.S. 9:5624. We agree.

As previously stated, the only evidence introduced at the hearing on the exception addressed Bayou Teche’s affirmative defense relating to the Dugas plaintiffs’ own negligence in causing their damages. In its answer to the Dugas plaintiffs’ petition, Bayou Teche identified itself as nothing more than “a corporation organized under the laws of the State of Louisiana,” and denied all other allegations of the petition. Even the argument presented at the hearing on the exception of prescription did not address the particulars of the statute and how Bayou Teche may have met those particulars. Simply put, Bayou Teche failed in its evidentiary burden.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of an exception of prescription in favor of Bayou Teche Water Works, Inc. and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to Bayou Teche Water Works, Inc.

REVERSED AND REMANDED.

AMY, J., concurs in the result and assigns reasons.

AMY, J.,

concurring in the result.

_JjI also find a reversal and remand appropriate. Like the lead opinion, I find that the evidence introduced into the record was insufficient for the necessary factual finding regarding La.R.S. 9:5624.

However, I disagree that Bayou Teche’s exhibits constituted the totality of the evidence available for the trial court’s review. Instead, I find that the plaintiffs sufficiently introduced the exhibits attached to its memorandum in opposition into the record. The transcript reveals that, when the plaintiffs’ attorney suggested that it could supplement its previously filed exhibits, some of which were excerpts of larger documents, discussion ensued regarding limiting the submission to pertinent documents. The trial court noted that it would leave the record open for that purpose, stating:

THE COURT:
We will leave the record open for you to attach. And what are you going to attach, so that we will know, so the record’s not just open for everything. Because technically, it’s supposed to be done in court today, because otherwise the Court has no idea what comes into the record and it may be inappropriate. So tell me what is coming in.
MR. D’ALBOR [Counsel for the plaintiffs]:
Only the deposition of Mr. Glenn Dugas, the deposition of Bayou Teche Water Works, along with the exhibits attached to our brief. I believe the discovery responses of Bayou Teche— THE COURT:
Exhibit # 1—
RMR. D’ALBOR:
Yes, Your Honor.
THE COURT:
—the excerpts, Rick[ ]y Frederick, exhibit #2, answers and responses, the plaintiffs interrogatories [and] request for production. Let’s see. Okay. Exhibit # 4, Mr. Dugas’ excerpts from — or just the cover sheet from it.
MR. D’ALBOR:
Yes, Your Honor.
THE COURT:
So that’s I have exhibit # 114 [sic], deposition of Bayou Teche Water Works through its authorized representative, Rick[ ]y Frederick.
MR. D’ALBOR:
Yes, Your Honor.
THE COURT:
I have that. That’s going to be twenty-two pages attached to mine, under exhibit #2, the answers and responses to plaintiffs interrogatories and request for production of documents. And that was certified by Mr. Pitman, Lewis Pit-man, on November 19th, 2009 by Mr. Rick[]y Frederick. These are the exhibits you’re making reference to?
MR. D’ALBOR:
Yes, Your Honor.
THE COURT:
Okay. And the exhibit # 3, which was in fact the petition for damages filed in this case with a verification. Two verifications. One from Mr. Dugas and one from Mrs. Dugas and the request of
notice by Mr. Dalton in exhibit #4. The only thing that should be coming into the record is Mr. Dugas’ deposition that was taken May 7th, '08 and the continuing of the deposition April 27th, '08.
MR. D’ALBOR:
Yes, Your Honor. And, Your Honor, if the Court — it’s my understanding, and I understand where the Court’s leaning, wants to take this matter under advisement and take some more time, and maybe have the opportunity to file a very short supplemental—
THE COURT:
Oh, no. No more briefs.
MR. D’ALBOR:
Okay.
|STHE COURT:
I’m doing it as a courtesy, guys. I don’t need any more briefs. And that’s a good thing. It is well briefed. I understand fully what the issues are and what the case law has said. Out of a courtesy to a young lawyer coming at the heels, of working behind other people, I will reread the cases that I think are the crux, but I don’t need any more briefs.
MR. D’ALBOR:
I understand, Your Honor.
THE COURT:
And the record is going to be left open for — Do you have those depositions? Well, for the depositions for the enlargement of exhibit #4 only. Well, the others — you didn’t file with. Yes, you filed exhibit # 1 through # 3.
MR. D’ALBOR:
Yes, Your Honor, we just as soon file a complete copy because of the voluminous—
THE COURT:
—so the record is going to be—
MR. D’ALBOR:
—copy.
THE COURT:
—open until close of business tomorrow to enlarge exhibit # 4 which is the deposition of Mr. Dugas.
If you want to do the whole thing, that is your business.
MR. D’ALBOR:
I understand.
THE COURT:
It costs and I would say no, just get to the pertinent parts that you made reference to. If you think every word is pertinent then put it there.
MR. D’ALBOR:
I understand. Thank you, Your Hon- or.

(Emphasis added.) I consider this passage to indicate that, even though the plaintiffs and the trial court anticipated that one of the exhibits would be supplemented, exhibits 1-3 and exhibit 4, which contained only the excerpt from Mr. Du-gas’ deposition, were introduced. All four exhibits appear in the record. In my opin-ionjjthe trial court acknowledged the introduction of those exhibits and was able to do so as they had previously been filed into the record as attachments to the plaintiffs’ memorandum.

I write separately to explain this because I believe that the record under review includes a broader evidentiary basis than is expressed in the lead opinion. Notwithstanding this different interpretation of the record before us, I agree that a reversal is required.

      . Although American Alternative Insurance Company is named as a defendant in its capacity as the liability insurer of Bayou Teche, it did not join in the filing of the peremptory exception of prescription, and the judgment on the exception awards relief only to Bayou Teche. Thus, American Alternative Insurance Company is not a party to this appeal.

      . Other insurers have been named as third-party defendants by Bayou Teche, but the issues raised by the joining of those parties are not now before this court.

      . At the trial on the exception, counsel for Bayou Teche stated that "[a]s an administrative matter, Your Honor, I’d like to offer, file and introduce all of the exhibits attached to our memorandum as well as our reply memorandum.” The record before us contains the reply memorandum, but no exhibits are attached to that filing.

      . These facts may well be buried in the numerous other filings found in this voluminous record, but they do not appear as evidence in the trial on the exception.


author: STEWART, J.

text:
    Marie Carter DUNLAP Plaintiff-Appellant v. MADISON PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 46,139-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Raymond L. Cannon, Tallulah, LA, for Appellant.
    Linda K. Ewbank, Hammonds & Sills, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

| Plaintiff-Appellant, Marie Carter Dunlap, is appealing a judgment rendered in favor of DefendanL-Appehee, Madison Parish School Board (hereinafter referred to as “school board”). For the following reasons, we amend with remand and affirm as amended.

FACTS

Dunlap was employed as a cafeteria worker for Madison Parish Middle School in Tallulah, Louisiana for approximately 20 years. She also worked part time for Delta American Health Care from March 27, 2005, to February 27, 2008.

On October 13, 2005, she was injured at work while working at Madison Parish Middle School when a hanging iron mixing bowl, weighing approximately 13 pounds, fell on her. Dunlap was later diagnosed with bilateral carpal tunnel syndrome, migraine headaches, and depression on April 3, 2008. On October 17, 2008, she filed a disputed claim for compensation, seeking permanent total disability benefits, or in the alternative, supplemental earnings benefits, the payment of medical expenses, an order reopening case # 05-07968, attorney fees and penalties, and court costs.

The trial on this matter was held on-June 19, 2009. At trial, Dunlap argued that she continued to suffer from headaches and blurred vision from her 2005 accident. She also claimed that she also suffered from depression as a result of the 2005 accident.

|2The school board alleged that any indemnity benefits due for claimant’s head injury of October 13, 2005, had prescribed. Additionally, the school board asserted that there is no medical evidence to support Dunlap’s contention that any of her current conditions are related to the October 13, 2005, accident.

On September 28, 2009, the Worker’s Compensation Judge (hereinafter referred to as “WCJ”) determined that during the trial, the parties stipulated to:

1. Dunlap’s average weekly wage of $243.02 and corresponding weekly indemnity of $162.02;
2. Payment of outstanding medical expenses for the 2008 injury, if found to be related;
3. Payment of court costs related to the filing fees;
4. The school board failed to timely approve surgery for the bilateral carpal tunnel syndrome; and
5. A penalty of $1,000.00 and an attorney fee of $5,000.00 was to be paid to resolve past and future fee and penalty claims relating to this claim due to the lapse in time between the recommendation for surgery and its approval.

The WCJ ruled that Dunlap’s migraine headaches, vision problems, neck problems, depression and obesity were not related to the accident that occurred in 2005. She also found that Dunlap was not entitled to compensation benefits arising from the loss of her second job as a sitter, because she was hired to sit only with her mother who had passed away. After Dunlap’s motion for a new trial was denied, the instant appeal ensued.

JjLAW AND DISCUSSION

CAUSATION

In her first assignment of error, Dunlap asserts that the WCJ erred in determining that her migraine headaches, vision problems, neck problems, depression and obesity were not related to the October 13, 2005, accident.

In a workers’ compensation case, the appropriate standard of review to be applied by the appellate court to the WCJ’s finding of fact is the manifest error or clearly wrong standard. Dean v. South-mark Const,, 03-1051 (La.7/6/04), 879 So.2d 112. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harris v. Casino Magic, 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301. Unless shown to be clearly wrong, the WCJ’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Blanson v. GM Inland Fisher Guide, 33,498 (La.App. 2 Cir. 6/23/00), 764 So.2d 307.

An employee is entitled to worker’s compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc. 2002-1539 (La.7/2/03), 851 So.2d 1135; Scott v. Super 1 Foods, 45,636 (La.App. 2 Cir. 9/29/10), 48 So.3d 1133. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1). Although the worker’s compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin, supra; Hofler v. J.P. Morgan Chase Bank, N.A. 46,047 (La.App. 2 Cir. 1/26/11), 57 So.3d 1128. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2 Cir.1992).

An employee’s preexisting disease or infirmity does not disqualify her worker’s compensation claim, if the work-related injury either aggravated or combined with the disease or infirmity to produce the disability for which compensation is claimed. Poland v. Kroger, No. 404, 32,576 (La.App. 2 Cir. 12/8/99), 747 So.2d 711, writ denied, 2000-0853 (La.4/7/00), 759 So.2d 764. The causal connection between the disability and the on-the-job injury can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is ^sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Scott, supra.

When a claimant proves that before the accident he had not exhibited disabling symptoms, but that commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the activation of the disabling condition, a claimant’s work injury is presumed to have aggravated, accelerated or combined with any preexisting disease or infirmity to produce his disability. Kendrick v. Solo Cup, 44,303 (La.App. 2 Cir. 6/3/09), 15 So.3d 295; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2 Cir.1991). If the evidence is evenly balanced, or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation, then the claimant fails to carry his burden of proof. Lubom, supra.

A claimant’s testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992.) Hofler, supra. In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) | fifamily and friend’s testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Hofler, supra; Bruno, supra.

In this assignment of error, we must determine whether Dunlap’s migraine headaches, vision problems, neck problems, depression and obesity were related to the October 13, 2005, accident pursuant to the Louisiana worker’s compensation statutes. In the event that her injury is found to be a result of a unrelated injury or ailment, Dunlap will not be entitled to compensation benefits.

Dunlap asserts that following the October 13, 2005, accident, she suffered aggravated diabetes, aggravated headaches, depression, dizziness, blurred vision, arthritis, and weakness in her arms and hands. She testified that she has been seeing Dr. Kenneth McDonald since 2005 for headaches and dizziness. She further testified that Dr. McDonald has been treating her for a “nerve problem” and depression since the October 13, 2005, accident. Dunlap contends that the evidence established that this accident caused and contributed to her neck and arm problems, headaches, depression, and obesity.

Dr. Kenneth McDonald has served as Dunlap’s primary physician since 2001. In his deposition, Dr. McDonald testified that Dunlap did not report any severe head pain to him in the last year. Dunlap did report headaches, but Dr. McDonald stated that they also occurred prior to the 2005 accident, and that they are related to her sinusitis or high blood pressure. He further stated that even if Dunlap’s headaches were aggravated by the 2005 injury, those headaches would have been “resolved by now.” [ 7Punlap also has not reported any eye pain to Dr. McDonald in over a year. Dr. McDonald testified that any vision problems would be related to her diabetes.

On April 3, 2008, Dr. Salil Tiwari diagnosed Dunlap with carpal tunnel syndrome in both hands after examining her cervical spine and upper extremities through several nerve conduction studies. Dr. Tiwari found that the carpal tunnel syndrome was unrelated to the October 13, 2005, accident. Rather, he found that the carpal tunnel syndrome was associated with repetitive hand use that was found to be work-related. Dr. Tiwari also found that Dunlap’s migraine headaches, vision problems, neck problems, depression and obesity were not related to the October 13, 2005, accident.

Dr. Douglas Coleman Brown, who has practiced in the field of orthopaedic medicine for 31 years, first examined Dunlap on November 4, 2008. Dr. Brown performed the carpal tunnel release surgery on both of Dunlap’s hands. In his deposition, he testified that Dunlap’s ailments, including her diabetic condition, being overweight, her microvascular brain changes, and her degenerative discs in her neck, were “preexisting conditions that really aren’t related to what I was seeing her for.”

The general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Williams v. Wal-Mart Stores, Inc., 2000-0863 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134. However, the treating physician’s testimony is not irre-buttable, and the trier of fact is required to weigh the |Rtestimony of all medical witnesses. Id.; Celestine v. U.S. Fidelity & Guaranty Co., 561 So.2d 986 (La.App. 4 Cir.1990).

If the trial court concludes that the appointed physician is a disinterested party, his conclusions will be entirely objective and accordingly his opinion will be given significant weight. Green v. Coca-Cola Bottling Company, Ltd., 477 So.2d 904 (La.App. 4 Cir.1985), writ denied, 478 So.2d 910 (La.1985). The significant weight given to the opinion of the court-appointed expert can vary in accordance with the various factors which a trial judge utilizes in evaluating the testimony of any other witness. Id. Thus, the significant weight can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Id.

Since Dr. McDonald treated Dunlap years before the October 13, 2005, work accident, as well as years after the work accident, he would clearly be in the best position to provide the court with his opinion as to whether or not Dunlap’s current ailments are related to the work related accident. According to his deposition and his medical records, Dunlap’s symptoms of migraine headaches, vision problems, neck problems, depression and obesity, are occurring as a result of her diabetic condition and her blood pressure.

Based on jurisprudence, the WCJ did not err in relying on Dr. McDonald’s opinion. It is clear that Dunlap was not in good health prior to | nthe accident. Based upon this record, we conclude that the WCJ’s decision on this issue should not be disturbed, since Dunlap failed to provide any evidence that she still suffered from any illnesses and/or ailments as a result of the October 13, 2005, work-related injury. The WCJ correctly determined that Dunlap’s current illnesses, including her headaches, eye problems and depression problems are not related to the October 13, 2005, work-related injury. This assignment of error is without merit.

EXPERT WITNESS FEES

In her second assignment of error, Dunlap alleges that the WCJ erred in assessing the $750.00 witness fee to her. She believes that these witnesses, Diane Bordelon, Peggy Burns, and Donna Norman, were representatives of the case managers of the school board, and were merely subpoenaed by her as impeachment fact witnesses.

A witness’s fees shall be taxed as costs of the court. La. R.S. 13:4533. La. C.C.P. art. 1920 states:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

A trial court’s assessment of costs can be reversed by an appellate court only upon a showing of abuse of discretion. Davis v. Sweeney, 44,997 (La.App. 2 Cir. 3/3/10), 31 So.3d 1184; Allstate Enterprises, Inc. v. Brown, 39,467 (La.App. 2 Cir. 6/29/05), 907 So.2d 904.

Here, the fees charged by these witnesses were not introduced into evidence at trial. Rather, Dunlap was billed after trial. She then attached | mthe bill to her post-trial brief, and requested that the charges be assessed as court costs.

Dunlap asserts that the school board stipulated to the payment of the attorney fee and penalties that arose from the handling of the worker’s compensation claim by the case managers. However, the record reveals that the parties stipulated only to the payment of court costs related to the filing fees.

Since the case managers were representatives, they were not qualified as expert witnesses at trial, we must consider them lay witnesses. La. R.S. 13:3671 states in pertinent part:

A witness residing or employed in the parish where the court is situated, or a witness who resides or is employed outside of such parish, but within twenty-five miles from the courthouse where the trial or hearing is to be held, who attends court in compliance with a subpoena is entitled to receive a fee of eight dollars a day for every day he is in attendance of court, and mileage at the rate of sixteen cents a mile for the distance he is required to travel in going to and returning from the place where the court is held.

Since the trial took place in Tallulah, Louisiana and the three managers are in fact employed by the school board, La. R.S. 13:3671 applies here. For that reason, we find that the $750.00 assessment for these witnesses’ fees as experts is erroneous and remand this case to the lower court to recalculate the witnesses’s fees in accordance with La. R.S. 13:3671.

DUNLAP’S SECOND JOB

In Dunlap’s third and final assignment of error, she contends that the WCJ erroneously determined that her second job as a sitter did not survive lnthe death of her mother. Moreover, she asserts that she never gave Delta American Health Care (“Delta”) the impression that she would not sit with anyone other than her mother.

La. R.S. 23:1021 states in pertinent part: (iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows: (aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.

Elizabeth Watts, Dunlap’s supervisor at Delta, testified that when Dunlap was hired, she indicated that she only wanted to sit for her mother. Dunlap’s mother was hospitalized on February 27, 2008, and subsequently died during her hospital stay on March 31, 2008. Dunlap never returned to work at Delta after her mother was taken to the hospital, nor did she ever contact Delta to advise them whether she would be back.

Watts expressed that Delta often advised its sitters to seek unemployment when there is no patient for them to sit with. According to Watts’s records, Dunlap had not made any attempt to seek unemployment when her mother, the patient that she was hired to sit with, died. Further, Dunlap never inquired if Delta had another patient for her to sit with when her mother died.

| ^Additionally, Dunlap informed Mrs. Presley, a school board office employee, that she no longer worked for Delta after her mother died, since she was only employed there as a sitter for her mother.

As recognized in the first assignment of error, in a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Here, the WCJ was not manifestly erroneous in determining that Dunlap is not entitled to additional wage benefits, since her second job as a sitter did not survive the death of her mother. Dunlap did not make any effort to return to work at Delta. Therefore, this assignment of error is meritless.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the WCJ as amended and remand this case to the lower court to recalculate the witnesses’s fees in accordance with La. R.S. 13:3671. Costs of this appeal are assessed to the appellant, Marie Dunlap.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . This is a prior claim that Dunlap filed with the Office of Worker’s Compensation against the school board when she was injured on October 13, 2005. It was previously dismissed without prejudice.

      . Since the surgery for Dunlap's carpal tunnel syndrome was recommended in April of 2008, but was not actually performed until November of 2008, the school board agreed to pay these penalties.


author: LOLLEY, J. MOORE, J,

text:
    STATE of Louisiana, Appellee v. James L. CASS, Appellant.
    No. 46,228-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      G. Paul Marx, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Jason T. Brown, Assistant District Attorney, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

_|jThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, James L. Cass, was convicted of possession with intent to distribute a Schedule I controlled dangerous substance, namely marijuana, a violation of La. R.S. 40:966(A)(1). He was adjudicated a second felony offender and sentenced to 40 years at hard labor “without benefit,” and fined $20,000. This appeal ensued. For the following reasons, we affirm Cass’ conviction, amend his sentence in part, and affirm the amended sentence.

Facts

On June 15, 2007, at approximately 11:00 a.m., law enforcement officers from the Shreveport Police Department and the Caddo Sheriffs Office entered the residence of James L. Cass to execute a no-knock search warrant. Officers testified they broke open the front door, announced their presence and their intentions to execute the search warrant, secured the occupants of the residence on a sofa, and searched the residence. Cass, his wife, and his two small children were present at this time. Cass advised the officers that he had marijuana in the master bedroom. A search of that bedroom produced a “fanny pack” that contained 34 individually packaged bags of marijuana totaling 42.2 grams, as well as $22 in cash. An additional $1,000 in cash was found inside a shoe in the closet of the master bedroom.

Cass was subsequently arrested and charged. He pleaded not guilty and a jury trial was held. At this trial, Cass was found guilty of possession with intent to distribute a Schedule I controlled dangerous substance, 12marijuana, a violation of La. R.S. 40:966(A)(1). He was charged as a second felony offender and sentenced to 40 years at hard labor “without benefit.” He was also fined $20,000.00. This appeal followed.

Law and Discussion

Cass asserts three assignments of error. First, Cass contends that the jury rendered the verdict upon insufficient evidence and, therefore, the conviction should be revised to possession rather than possession with intent to distribute. Second, Cass argues the sentence of 40 years was excessive because the crime of which he was convicted involved marijuana, which he submits is no longer considered dangerous. Third, Cass asserts that the imposition of a $20,000.00 fine is unconstitutional because he is indigent and unable to pay due to his prison sentence.

Insufficiency of the Evidence

Cass claims the evidence presented at trial was insufficient to support his conviction. While he admits he possessed marijuana, he contends the evidence was insufficient to prove he had intent to distribute it. The standard of appellate review for a sufficiency of the evidence claim 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 (1979); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to ^substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913.

After viewing the totality of the evidence, a rational trier of fact could have concluded beyond a reasonable doubt that the evidence presented by the state was sufficient to find the defendant guilty of possession of marijuana with intent to distribute; thus Cass’s arguments to the contrary are without merit. There was ample evidence to support the jury’s conclusion. Thirty-four individually packaged bags of marijuana as well as $22 in cash were recovered from a “fanny pack” in Cass’s residence. An additional $1,000 was found in the same room. Further, three law enforcement officers testified Cass admitted to them while they searched his residence that he distributed marijuana.

In his defense, Cass admits to possessing the marijuana, but argues it was for his personal medicinal use. However, a search of his residence failed to produce the paraphernalia necessary for him to use it. Cass also denies making any statements that implied he distributed marijuana. He further claims the money recovered from his home was earned through ^legitimate enterprise; however, he produced no evidence at trial to support this assertion. While Cass hoped the jury would accept his testimony, obviously, it did not.

The evidence presented at trial led the trier of fact to conclude Cass is guilty beyond a reasonable doubt. We find this conclusion to be reasonable; therefore, Cass’s assertions to the contrary are without merit.

Excessive Sentence

Cass alleges his sentence is unconstitutionally excessive because the sentencing court failed to consider all the facts and circumstances of his case. In particular, he argues the decriminalization of marijuana in other states warrants a less severe sentence in Louisiana. He also argues the court did not adequately consider the factors set forth in La. C. Cr. P. art. 894.1.

There is a two-pronged inquiry for appellate review of sentences for exces-siveness when there is a substantive motion to reconsider. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 1994-0461 (La.09/05/95), 660 So.2d 819; State v. Lin-near, 44,830 (La.App.2d Cir.12/09/09), 26 So.3d 303. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Linnear, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/03/03), 861 So.2d 144; State v. Linnear, supra. | sThe second prong is the constitutional excessiveness standard. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, supra; State v. Livingston, 39,390 (La.App.2d Cir.04/06/05), 899 So.2d 733.

Cass was convicted of possession of marijuana with intent to distribute. He was sentenced as a second felony habitual offender under La. R.S. 15:529.1, which provides:

A. Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows
(1) If the second felony is such that upon first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for the first conviction.

A first conviction for possession of marijuana with intent to distribute carries a sentencing range of 5 to 30 years. La. R.S. 40:966(B)(3). Therefore, the trial court properly determined the sentencing range for this crime under the habitual offender law for a second felony to be 15 to 60 years. La. R.S. 15:529.1(A)(1). Cass’s forty year sentence falls within this range.

The first prong of the excessive sentence analysis requires the sentencing court to take cognizance of La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). During the sentencing hearing, the trial court specifically stated, “I have reviewed the cases involving Mr. Cass. I |6have reviewed the Criminal Code of Procedure Article 894.1.” The court subsequently sentenced Cass to 40 years at hard labor “without benefit.” Although the court did not mention which Article 894.1 factors it considered, this is not a legal requirement. State v. Smith, supra. It is unclear exactly what consideration the court gave to the factors; therefore, it is impossible to determine if the required “adequate” consideration was given. State v. Marshall, supra. However, the first prong will still be satisfied if the record provides an adequate factual basis to support the sentence imposed. State v. Landos, 419 So.2d 475 (La.1982).

The record provides several mitigating factors regarding Cass’s sentencing. Cass is 55 years old; therefore, a 40-year sentence would act as a de facto life sentence. Cass has a wife and two small children, as well as a supportive brother and sister who each testified at his sentencing hearing. Cass also suffers from glaucoma. He has an honorable service record with the United States military. Additionally, the crime for which he has been convicted is nonviolent in nature. However, these mitigating factors are to be weighed against the aggravating circumstances in this case. Although possession with intent to distribute marijuana is a nonviolent crime, it occurred a mere two years after Cass was released from prison after having served 30 years. When viewed in conjunction with his extensive criminal past, his commission of the crime in the case sub judice demonstrates a propensity for criminal behavior. Additional aggravating factors include the 17exposure of minors to this criminal activity and the fact that the crime was committed for profit. The record clearly provides an adequate factual basis to support the sentence imposed.

The second prong of the test requires a sentence to be proportionate to the seriousness of the offense. State v. Smith, supra. A sentence is disproportionate if it “shocks the sense of justice,” when the crime is viewed in light of the harm done to society. State v. Lobato, supra. This is Cass’s sixth conviction. This type of recidivism is the very type of behavior La. R.S. 15:529.1 was designed to deter. Cass was sentenced within the range provided by the habitual offender law and, therefore, this sentence does not “shock the sense of justice.” Cass’s sentence is reasonable and appropriate, especially when his past crimes are considered. Finally, we do not accept Cass’s “Willie Nelson” defense. His suggestion that marijuana is no longer considered a dangerous substance, as reflected by the treatment given to Willie Nelson when stopped for possessing it, is of little importance to this Court. This assignment of error is without merit.

Imposition of Fine

Tn a related argument; Cass asserts that the imposition of the $20,000.00 fine is unconstitutional because he is indigent and unable to pay due to his prison sentence. Louisiana R.S. 40:967(B)(4)(b) provides for imposition of a fíne of not more than $50,000.00 upon conviction of La. R.S. 40:966(A)(1) for marijuana, of which Cass was convicted. However, because La. R.S. 15:529.1, the habitual offender statute, does not authorize imposition of a fine, but only provides for enhanced sentences relating to [sthe term of imprisonment, a trial court is without authority to impose a fíne under this statute. State v. Dickerson, 584 So.2d 1140 (La.1991). Thus, because the trial court sentenced Cass under the habitual offender statute, it was without authority to impose a fíne. When such an illegal fíne has been imposed, the proper remedy is to amend the sentence to delete the fíne. See State v. Ealy, 44,252 (La.App.2d Cir.05/13/09), 12 So.3d 1052, writ denied, 2009-1393 (La.02/05/10), 27 So.3d 298. Therefore, although based on different grounds, this assignment of error has merit and Cass’s sentence is amended to delete the $20,000.00 fine.

Errors Patent

Pursuant to La. C. Cr. P. art. 920, we have examined the record and we note the presence of two errors patent. The first error deals with the eligibility of the benefits of probation, parole, and suspension of sentence. Cass was adjudicated a second felony habitual offender and was sentenced to serve 40 years in prison at hard labor. At the sentencing hearing, the trial court articulated that this sentence was to be served “without benefit.” However, it was not stated exactly which “benefits” Cass’s sentence was to be served without. However, the minutes in this matter clarify the ruling as they state, “The court ordered said sentence served without benefit of probation, parole, or suspension of sentence.”

Louisiana 40:966(B)(3), regarding the penalty for possession of marijuana with intent to distribute, does not require any restrictions on the benefits of probation, parole, or suspension of sentence. However, the habitual offender law provides, “Any sentence imposed under the provisions 1 flof this Section shall be at hard labor without benefit of probation or suspension of sentence.” La. R.S. 15:529.1(G). This statute does not provide that the sentence be served without benefit of parole. See, State v. Tate, 1999-1483 (La.11/24/99), 747 So.2d 519; State v. McKeaver, 44,907 (La. App.2d Cir.01/27/10), 32 So.3d 909. Accordingly, because Cass was sentenced under the habitual offender law, as well as the possession law, his sentence is to be served without benefit of probation or suspension of sentence. We hereby amend the sentence to delete that portion denying the benefit of parole and clarify the proper sentence.

We also note as error patent that the trial court failed to properly inform the defendant of the prescriptive period for seeking post-conviction relief as mandated by La. C. Cr. P. art. 930.8(C). Therefore, we advise defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

Conclusion

For the foregoing reasons, Cass’s conviction is affirmed. His sentence is amended to delete both the imposed fíne and the denial of the benefit of parole. As amended, the sentence is affirmed as well.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED IS AFFIRMED.

MOORE, J., Concurs in part; dissents in part.

MOORE, J,

Concurring in Part and Dissenting in Part.

| ¶While I fully concur in the majority’s analysis of the sufficiency of the evidence claim, I must respectfully dissent from its treatment of the sentencing issue.

The sentencing judge’s colloquy, which occupies not quite 2 ⅛ pages of transcript and must have consumed less than one minute of real time, sweeps away any pretense of compliance with La. C. Cr. P. art. 894.1 and, in my view, ignores the concept of stating a factual basis for sentence. Ordinarily, we forgive noncompliance with Art. 894.1 by citing State v. Lanclos, 419 So.2d 475 (La.1982), and finding an “adequate factual basis” elsewhere in the record, such as trial evidence and the pleadings. See, e.g., State v. Bowers, 42,390 (La.App. 2 Cir. 9/19/07), 965 So.2d 959, writ denied, 2007-2055 (La.3/14/08), 977 So.2d 929, and other cases too numerous to cite.

On this record, however, minimal compliance should not be condoned. The sentencing judge was not the same judge who presided over Cass’s two-day trial. He stated that he “reviewed the cases involving Mr. Cass” and Art. 894.1, but gave no indication that he reviewed the record itself — a record which, the majority concedes, provides several mitigating factors. On this minuscule showing, I am not convinced that the sentencing judge truly particularized this sentence to this offender.

Specifically, the sentencing judge should consider not only Cass’s serious criminal history and second-felony status (his prior offenses arose from a horrific September 1974 crime spree for which he served 30 years in 12Angola) and society’s official revulsion toward marijuana merchants, even small-timers. The judge should also consider the relatively small amount involved (under 1½ ounces), Cass’s military record and family ties, and perhaps most importantly, his age and general health. Even though it is clearly within the statutory limits, the 40-year sentence is tantamount to a life term for this nearly 58-year-old defendant. The judge should state what societal goals are served, and at what cost, by imprisoning this defendant for the rest of his life. See, e.g., State v. Jackson, 2009-2406 (La.1/19/11), fn. 3, 55 So.3d 767 (Knoll, J, dissenting).

I would vacate this sentence and remand to the district court for a sentence hearing that complies with Art. 894.1 and demonstrates at least a passing familiarity with the facts of the offense and the circumstances of the defendant.

      . Cass was previously convicted of armed robbery, attempted aggravated rape, two counts of attempted crimes against nature, and simple escape.