author: MOORE, J. CARAWAY, J.,

text:
    Robert L. WALTON, et al., Plaintiffs-Appellants, v. Ann Butts BURNS, et al., Defendants-Appellees. Robert L. Walton, Bonnie Trouille Walton, John Keith Lamm and Rebecca Broussard Lamm, Plaintiffs-Applicants, v. Exxon Mobil Corporation, ExxonMobil Oil Corporation, Corporation, BP America Production Company, and Monclova Plantation, L.L.C., Defendants-Respondents.
    Nos. 47,388-CA, 47,428-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Talbot, Carmouche, Marcello, Baton Rouge, LA, by Donald T. Carmouche, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Ross J. Donnes, Victor L. Marcello, D. Adele Owen, Robert C. Vines, James E. Paxton, Tallulah, LA, Weeks & Gonzalez, New Orleans, LA, by Patricia E. Weeks, John Paul Gonzalez, for Appellants/Applicants.
    Liskow & Lewis, New Orleans, LA, by Robert B. McNeal, Jerome W. Matthews, Jr., for Respondents Exxon Mobil Corp. and ExxonMobil Oil Corp.
    Kean Miller, LLP., Baton Rouge, LA, by James P. Doré, Pamela R. Mascari, for Respondent BP America Production Co.
    Jeansonne & Remondet, Lafayette, LA, by John A. Jeansonne, Jr., John A. Jean-sonne, III, for Respondents John W. McGowan and McGowan Working Partners.
    Shotwell, Brown & Sperry, Monroe, LA, by George M. Wear, Jr., for Appellees, Ann Butts Burns, et al.
    Before CARAWAY, MOORE and HARRISON (Pro Tempore), JJ.
   MOORE, J.

Lin these consolidated oilfield legacy eases, the plaintiffs, current surface owners, contest judgments that refused to allow them to join the mineral servitude owners as defendants in the first suit and sustained exceptions of lis pendens in favor of the mineral servitude owners in the second suit. For the reasons expressed, we grant the plaintiffs’ writ application, make it peremptory, direct the district court to give the plaintiffs leave of court to amend their petition to join the mineral servitude owners as defendants in the first suit, and remand for further proceedings. Because of this ruling, we dismiss the second suit as moot.

Procedural Background: Suit # 1

These suits are part of an oilfield legacy claim involving a 340-acre tract in the Holly Ridge Oil and Gas Field, Tensas Parish. Plaintiffs Robert and Bonnie Walton bought the tract (surface rights only) in July 2002; they sold it to plaintiffs John and Rebecca Lamm in November 2003. They soon discovered the soil was contaminated by oil and gas exploration and production activities going back several decades, chiefly the storage of oilfield sludge in unlined pits that allowed seepage into groundwater.

In September 2004, the plaintiffs filed Suit # 1 against ExxonMobil Oil Corp., Exxon Mobil Corp. and BP America Production Co. (“the oil company defendants,” entities that conducted oil and gas operations on the tract from the late 1930s until 1975), and Monclova Plantation LLC, the entity that sold them the tract. The plaintiffs listed 71 oil wells by serial number, described “pits, sumps, pipelines, flowlines, tank batteries, 12wellheads, and measuring facilities,” and alleged the defendants’ negligence, strict liability, breach of contract to restore the land, and wanton and reckless disregard for public safety. They demanded compensatory damages, remediation, punitive damages, and a reduction in purchase price.

The defendants removed the case to federal court, but after it was remanded to the 6th Judicial District Court, the plaintiffs added as defendants McGowan Working Partners Inc. (“McGowan”), the company that has operated Holly Ridge Field since 1973.

McGowan filed several exceptions, including “no right or cause of action.” The thrust of the argument was that a 1941 mineral lease covering the tract had no provision for the lessee to pay for damages, and a 1948 salt water disposal contract specifically authorized one of Exxon-Mobil’s predecessors to use the land for disposal of saltwater “and other substances”; hence, there was no contract liability on the part of the lessees or operator.

The oil company defendants adopted these arguments,, filing motions for summary judgment. They showed that the mineral rights had been reserved in a 1973 sale, after which the surface rights had been transferred several times; no subsequent sale had any provision for preexisting damages. The thrust of the argument was the “subsequent purchaser doctrine”: the plaintiffs were raising a tort claim, and as to tort claims, a purchaser of property can recover for only those damages that occurred after he acquired the property. LeJeune Bros. Inc. v. Goodrich Petr. Co., 06-1557 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, writ denied, 2008-0298 (La. 14/4/08),a 978 So.2d 327, and jurisprudence dating back to Clark v. Warner & Co., 6 La.Ann. 408 (1851).

The plaintiffs responded, inter alia, that the Mineral Code, La. R.S. 31:11, requires the owner of a mineral right to exercise his rights “with reasonable regard for those” of the surface owner, regardless of contracts and jurisprudential rules.

In early November 2009, the plaintiffs sought leave to file a second supplemental and amending petition to add Cleada N. Butts, et al. (“the Butts defendants”), the current mineral servitude owners, as defendants.

One week later, the district court held a hearing on the exceptions and motions for summary judgment only. The plaintiffs argued that two other circuits had recently rejected the subsequent purchaser doctrine. Marin v. Exxon Mobil Corp., 2008-1724 (La.App. 1 Cir. 9/30/09), 2009 WL 7004332 (unpub.); Eagle Pipe & Supply Co. v. Amerada Hess Corp., 2009-0298 (La.App. 4 Cir. 2/10/10), 47 So.2d 428, 174 Oil & Gas Rep. 19. The defendants countered that LeJeune was still the prevailing law, as another judge of the 6th Judicial District Court had recently rejected an identical oilfield legacy claim in a case called Wagoner v. Chevron. Perhaps because Marin, Eagle Pipe and Wagoner were all on appeal, the district court deferred ruling on the motions for summary judgment, and gave the parties 30 days for additional briefing on the exceptions. To date, however, the court has not ruled on any of these filings.

About a year later, the supreme court rendered an opinion in Marin v. Exxon Mobil Corp., 2009-2368 (La.10/19/10), 48 So.3d 234, reversing the |4award of damages on grounds of prescription but expressly reserving (in footnote 18) any analysis of the subsequent purchaser doctrine. Around the same time, this court affirmed (on rehearing) the district court’s application of the subsequent purchaser doctrine in Wagoner v. Chevron USA, 45,507 (La.App. 2 Cir. 8/18/10), 55 So.3d 12, but the property owners in Wagoner applied for writs to the supreme court. The district court therefore held all pending motions in Suit # 1 under advisement.

Procedural Background, Suit # 2

After waiting over a year with no rulings on anything, the plaintiffs filed Suit #2 in May 2011. They named only the Butts defendants, the current mineral servitude owners, as defendants. The factual allegations and claims for relief were almost identical to those in Suit # 1. They added, however, the legal theory that under the Mineral Code, R.S. 31:22, the owner of the mineral servitude is obligated, “insofar as practicable, to restore the surface to its original eondition[.]”

The Butts defendants responded with an exception of lis pendens, arguing that the factual allegations and relief sought were identical to Suit # 1, and thus there was merger of the defendants’ identities in both actions. Louisiana Cotton Ass’n v. Tri-Parish Gin Co., 624 So.2d 461 (La.App. 2 Cir.1993).

The court held a hearing in October 2011. The plaintiffs conceded that the “remedy might ultimately be the same,” but argued that the cause of action against the Butts defendants was based on Art. 22’s obligation of the | ¿mineral servitude owner to “restore the surface” while that against the oil company defendants was based on Art. 122’s obligation of the lessee to act as a “reasonably prudent operator,” two distinct legal theories. The district court stated that it was still waiting on guidance from the supreme court in Eagle Pipe, but ruled orally that in both Suit # 1 and Suit # 2, there was an identity of the parties and the claims arose from the same transaction or occurrence; hence, the court sustained the exception of lis pen-dens and dismissed the suit without prejudice. The plaintiffs took this appeal in 47,388-CA.

Subsequent History in Suit # 1

A few weeks later, the supreme court rendered judgment in Eagle Pipe & Supply Inc. v. Amerada Hess Corp., 2010-2267 (La.10/25/11), 79 So.3d 246, 174 Oil & Gas Rep. 32. A plurality of the court reversed the fourth circuit and reinstated the defendants’ exception of no cause of action, stating: “In the absence of an assignment or subrogation * * *, a subsequent purchaser of the property cannot recover from a third party for property damage inflicted prior to the sale.” However, the plurality carefully limited its holding (in footnote 80): “Moreover, because not factually relevant, we express no opinion as to the applicability of our holding to situations involving mineral leases or obligations arising out of the Mineral Code.”

The district court finally held, in February 2012, a hearing on the plaintiffs’ motion to amend their petition in Suit # 1. The plaintiffs argued that once the court sustained the exception of lis pendens in Suit # 2, it should be automatic that they could join the Butts defendants in Suit # 1. |RThe Butts defendants countered that joining them at this late date would be unduly prejudicial; the other defendants urged that under Eagle Pipe and this court’s Wagoner v. Chevron USA, the plaintiffs as subsequent purchasers simply had no cause of action against anybody.

The district court orally adopted the latter argument and denied the motion to amend. The plaintiffs took this writ in 47,428-CW.

About a month later, the supreme court denied writs in Wagoner v. Chevron USA, 2010-2773 (La.3/2/13), 83 So.3d 1032. Although without precedential value, it allowed this court’s application of the subsequent purchaser doctrine, in the context of an oilfield legacy claim, to stand.

The Parties’ Positions

The plaintiffs contest the denial of leave to amend in Suit # 1 and the granting of the exception of lis pendens in Suit # 2. As a foundation, they show that La. R.S. 31:22 obligates the owner of a mineral servitude to “restore the surface to its original condition at the earliest reasonable time.” To prove that Art. 22 is unaffected by the subsequent purchaser doctrine, they cite a case in which the first circuit upheld the Office of Conservation’s creation of a coal seam natural gas unit in LaSalle Parish, Six C Properties LLC v. Welsh, 2010-1913 (La.App. 1 Cir. 5/26/11), 68 So.3d 609, writ granted, 2011-1353 (La.11/14/11), 75 So.2d 440. With the presumptive application of Art. 22, they argue that leave to amend should be freely given, even to add a new theory of recovery. Giron v. Housing Auth. of City of Opelousas, 393 So.2d 1267 (La.1981). They concede that lis pendens would block a second suit “between the same parties in the same 17capacities,” La.C.C.P. art. 531. However, they contend that because the Butts defendants’ obligation arises from Art. 22, and the oil company defendants’ obligation arises from Art. 122, they cannot possibly be in the same capacity.

The Butts defendants respond that whether their duty is framed by Art. 22 or Art. 122, it is “no broader than the duty” of the lessee, McGowan, and thus they are substantially the same party as McGowan. They contend that Six C Properties has nothing to do with oilfield legacy claims, but concede that one of the cases cited therein, Dupree v. Oil, Gas & Other Minerals, 31,869 (La.App. 2 Cir. 5/5/99), 731 So.2d 1067, 142 Oil & Gas Rep. 258, held that servitude owners could be liable to surface owners for surface damages caused by their bankrupt lessee. However, they argue that the defendants in Du-pree had actually conducted operations and that the lease therein had an express restoration and indemnity clause, unlike any lease in this case. Finally, the Butts defendants urge that the grant or denial of leave to amend should be disturbed only on a showing of abuse of discretion, and no abuse is apparent.

The oil company defendants and McGowan cite the concurrence in this court’s writ grant in Suit # 1, arguing that their position is identical to that of the lessees in Wagoner v. Chevron USA, supra, with the result that the plaintiffs have no claim at all. They ask this court to act on the pending exceptions and motions for summary judgment, and end the matter.

|sThe final defendant, Monclova Plantation, asserts that it has absolutely no assets and will not participate in the litigation.

General Principles

The procedural issue in Suit # 1 is leave to amend the petition. Once the answer has been served, the petition may be amended only by leave of court or written consent of the adverse party. La. C.C.P. art..1151. Although leave to amend is within the court’s sound discretion, it should be granted to promote the interests of justice. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291; Smith v. Jitney Jungle of Amer., 35,100 (La.App. 2 Cir. 12/5/01), 802 So.2d 988, with denied, 2002-0039 (La.3/15/02), 811 So.2d 913. Courts are generally liberal in allowing amendments to the petition, in the absence of a showing of prejudice to the defendant or a finding of bad faith or dilatory purposes on the part of the plaintiff. Giron v. Housing Auth., supra; Taylor v. Babin, 2008-2063 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, writ denied, 2009-1285 (La.9/25/09), 18 So.3d 76.

The procedural issue in Suit # 2 is lis pendens. When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by filing the decli-natory exception of lis pendens. La. C.C.P. arts. 531, 925 A(3). A “fair test” for deciding whether lis pendens should be granted is whether the first suit would be res judicata as to the second suit. State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (1953); Jones v. Southern Natural Gas Co., 46,347 (La.App.9 2 Cir. 4/13/11), 63 So.3d 1080, 173 Oil & Gas Rep. 276, writs not cons., 2011-1242 (La.9/23/11, 11/4/11), 70 So.3d 800, 75 So.3d 911. Res judicata is a concept by which the defendant may defeat an action by declaring the claim extinguished because it already has been litigated. La. R.S. 13:4231. Res ju-dicata applies “between the same parties” or between parties who appear in the same capacity in both suits. Id.; Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049; Von Drake v. Rogers, 45,305 (La.App. 2 Cir. 5/19/10), 36 So.3d 1218, writ denied, 2010-1471 (La.10/15/10), 45 So.3d 1111. Res judicata also applies if the cause of action asserted in the second suit existed at the time of judgment in, and arose from the same transaction or occurrence that was the subject of, the first suit. Chevron USA v. State, 2007-2469 (La.9/8/08), 993 So.2d 187; Von Drake v. Rogers, supra. Res judicata does not require an identity of cause. Chevron USA v. State, supra.

Discussion

The issue posed by both matters is whether the Butts defendants, as mineral servitude owners, and the oil company defendants, as lessees, and McGowan, the working interest owner, owe the same duties to the plaintiffs, the surface owners. If so, the oil company defendants and McGowan contend that res judicata would bar the suit against the Butts defendants in Suit # 2 and support the denial of leave to amend in Suit # 1.

The foundational duty of parties in a case of mineral rights is stated in La. R.S. 31:11 A:

§ 11. Correlative rights of landowner and owner of a mineral right and between owners of mineral rights
|10A. The owner of land burdened by a mineral right or rights and the owner of a mineral right must exercise their respective rights with reasonable regard for those of the other. Similarly the owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners.

This article contemplates concurrent uses of the land by the owner of mineral rights and the owner of the land and those deriving use rights from him. Id., comment. The general duty of “reasonable regard” under Art. 11 also applies to a mineral lessee. Ashby v. IMC Exploration Co., 496 So.2d 1334 (La.App. 3 Cir.1986), aff'd, 506 So.2d 1193 (1987).

The particular duty of a mineral servitude owner is stated in La. R.S. 31:22:

§ 22. Certain rights and obligations of mineral servitude owner
The owner of a mineral servitude is under no obligation to exercise it. If he does, he is entitled to use only so much of the land as is reasonably necessary to conduct his operations. He is obligated, insofar as practicable, to restore the surface to its original condition at the earliest reasonable time.
The particular duty of a mineral lessee is stated in La. R.S. 31:122:
§ 122. Lessee’s obligation to act as reasonably prudent operator
A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.

The distinction is crucial. Although their right is the same, the servitude owner has the duty to restore the surface to its original condition whereas the lessee has the duty to act in good faith and to develop and | n operate the property as a reasonably prudent operator. In Marin, supra, the supreme court held that the “prudent operator standard” of Art. 122 incorporates the “duty to remediate oilfield contamination” if the lessee has operated “unreasonably or excessively.” Id. at 37-38, 48 So.3d at 259-260. The court called this the lessee’s “additional restoration duty to correct the contamination,” and explained that it “does not necessarily mean that the lessee has to duty to restore the land to pre-lease condition,” which would be the servitude owner’s duty under Art. 22. Id. This distinction, though perhaps subtle, reflects the reality that the lessee and mineral servitude owner are not totally in the same position. The court in Marin recognized that current contamination adversely affects the surface owner’s present use of the land and is different from the ordinary wear and tear from ongoing use by a reasonably prudent operator.

We also note that a special statute, La. R.S. 30:29 (also known as “Act 312”), creates a special procedure to resolve claims of environmental damage arising from oilfield operations. Act 312 applies to actions under Title 31, the Mineral Code. M.J. Farms Ltd. v. Exxon Mobil Corp., 2007-2371 (La.7/1/08), 998 So.2d 16. Notably, § 29 C(1) provides that if the finder of fact determines that environmental damage exists and determines the party or parties who cause the damage, then the court shall order those parties “whom the court finds legally responsible for the damage” to develop a plan of remediation. Although the application of Act 312 is not an issue here, it underscores the fact that different defendants — lessees, operators, servitude owners — may have different obligations to evaluate and 112remedy contamination. The interests of justice are not served when a concerned party is excluded from the litigation.

The plaintiffs correctly conceded, at the hearing in Suit # 2, that the remediation owed by all defendants might ultimately be the same. We also agree with the plaintiffs’ claim that the Butts defendants’ obligation to restore the surface at the earliest practicable time is not the same as the other defendants’ duty to act as reasonably prudent operators, including a duty to correct contamination immediately, if the contamination is interfering with the plaintiffs’ use of the surface. On this showing, we find the district court abused its discretion in denying leave of court to amend in Suit # 1. We therefore grant the writ, vacate the ruling, and remand the case to the district court for the grant of leave to amend.

This ruling venders the issue in Suit # 2 moot; when the plaintiffs are allowed to assert their claims against the Butts defendants in Suit # 1, there is no further need for Suit # 1. We therefore dismiss the appeal as moot and express no opinion as to the exception of lis pendens. We also express no opinion on the potentially dispositive issue raised by the oil company defendants and McGowan, whether the subsequent purchaser doctrine extinguishes the plaintiffs’ claims because the contamination occurred before the plaintiffs bought the surface rights. Such a ruling would depend on a factual finding which has not yet occurred. The parties apparently have not pressed the district court to rule on the outstanding exceptions and 11smotions for summary judgment. Only after a ruling on these matters will this court have anything to review.

Conclusion

For the reasons expressed, we grant the plaintiffs’ writ application in Suit # 1, make it peremptory, direct the district court to grant the plaintiffs leave of court to amend their petition to join the mineral servitude owners as defendants in the first suit, and remand for further proceedings. We dismiss as moot the appeal in Suit # 2. All costs are to be paid one-half by the oil company defendants and one-half by McGowan Working Partners Inc.

WRIT GRANTED; CASE #1 REMANDED WITH INSTRUCTIONS. APPEAL IN CASE # 2 DISMISSED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

Iil respectfully concur with the majority ruling as I am not in agreement with both the procedural and substantive analyses given.

In this case, as in the supreme court’s important ruling in Marin v. Exxon Mobil Corp., 09-2368, 09-2371 (La.10/19/10), 48 So.3d 234, the alleged damage is the existing contamination of the soil and groundwater which impedes or prevents plaintiffs’ present use of the land. Plaintiffs’ ownership of the immovable is subject to two real right encumbrances or incorporeal im-movables — a mineral lease and a mineral servitude. La. R.S. 31:18. As discussed further below, the real obligations of these two mineral rights impose upon their owners the same “restoration duty” to the owner of the servient estate recognized and discussed in Marin. Marin, supra at 255. The coextensiveness of these Mineral Code obligations for the same restoration debt to the surface owner makes solidary obligors of the parties sued in Suit # 1, including the Butts, justifying the plaintiffs’ right for the cumulation of their claims into one action. Narcise v. Illinois Central Gulf Railroad Co., 427 So.2d 1192 (La.1983); La. C.C. art. 1794; La. C.C.P. art. 463. The trial court’s denial of plaintiffs’ right of joinder under La. C.C.P. art. 463 of these defendants in Suit # 1 at this early stage of the proceedings was therefore an abuse of discretion.

The particular title history for this property shows that the initial mineral right was the 1941 oil and gas lease which was granted by the landowner. The second mineral right was created years later when the mineral ownership in the form of the servitude was severed from the |2ownership of the land. Significantly, both the mineral lease and the mineral servitude burden plaintiffs’ land with an identical right of use as shown by the Mineral Code definitions for each mineral right under Articles 114 and 21. La. R.S. 31:114 and 21. That burden is the right of use to explore for and produce minerals. Id. The mineral servitude owner’s right to explore for and produce minerals was subject to the mineral lease which was already in existence as a real right when the servitude was created.

The present burden upon the plaintiffs’ land in favor of the owners of the two mineral rights, however, does not overwhelm plaintiffs’ concurrent right to other uses of the land. There is a balance and relationship of the rights of use between the servient estate and the two mineral estates. Unlike a predial lease which may deliver complete possession and use of the immovable to the lessee, the lessor of the mineral lease or the landowner/seller of a mineral servitude retains possession and use of the surface subject only to the use right to explore for and produce minerals, usually on a small portion of the land or even off the land altogether by unit operations. The servient estate owner under this regime expects continued use of his land. The Mineral Code recognizes this in Article 11(A) which provides for the parties’ correlative rights, as follows:

A. The owner of land burdened by a mineral right or rights and the owner of a mineral right must exercise their respective rights with reasonable regard for those of the other. Similarly the owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners.

LLa. R.S. 31:11.

There aré two matters underlying the defensive positions of the Butts and the present leasehold owner, McGowan. First, the physical acts causing the alleged contamination appear to have occurred long before the Butts and McGowan acquired ownership of their respective mineral rights. Second, the Butts insist that since any right of use they own over the property is leased to McGowan, they have no existing possessory right of the immovable, enabling their performance of restoration of the land. From the Supreme Court’s ruling in Marin, the special legislative remedy for restoration under La. R.S. 30:29, and the correlative rights regime of the Mineral Code addressed in Articles 11, 22, and 122, these matters raised by Butts and McGowan do not negate the existence of plaintiffs’ causes of action alleged against them in Suit # 1. The clear “community of interest” of those causes of action to restore present use of the servient estate to the plaintiffs requires joinder of the parties in Suit # 1. La. C.C.P. art. 463.

The important distinction for answer to the defendants’ contentions involves the difference between (1) a tort claim for property damage remedied by money damages, and (2) a claim to enforce- the real obligations |4of Mineral Code Articles 11, 22, and 122 by the owner of the servient estate. A breach of an obligation in tort results in an obligation to pay, while the breach of the real obligation may be remedied by a performance obligation or the special regulatory cleanup of La. R.S. 80:29 to cease the unauthorized misuse of the property or to restore the land to normal use by removal of contamination. Since plaintiffs’ causes of action against the Butts and McGowan fall under this second category of action, the time of the actual damaging conduct by other parties which caused the contamination is not crucial. Instead, the existing impediment to the servient landowner’s use requires the present owners of the mineral rights to act to restore that use.

In Marin, because all the acts of contamination by the use of unlined pits had ceased many years before, the court rejected the tort claims of the landowners. The delictual actions were prescribed; plaintiffs’ contra non valentem claims and the continuing tort doctrine were rejected. Turning to the additional argument of the Marin plaintiffs, the court summarized the parties’ conflicting positions, as follows:

Plaintiffs argue that as a lessee, Exxon has continuing obligations under both the mineral and surface lease that cannot prescribe as a matter of law. Exxon argues that any restoration obligations it may have under these leases do not go into effect until the lease is terminated, making any such claims premature. The plaintiffs’ position is correct.

The Marin property involved both a predial lease, with its personal obligations, and a mineral lease, a real right, with its real obligations. Hoover Tree Farm, L.L.C. v. Goodrich Petroleum, L.L.C., 46,-153 (La.App.2d Cir.3/23/11), 63 So.3d 159, 166, unit denied, 11-1225 (La.9/23/11), 69 So.3d 1161, writ denied, 11-1236 (La.9/23/11), 69 So.3d 1162; La. C.C. art. 1763. The court determined that Article 122 of the Mineral Code, a real obligation of Exxon, was breached rejecting Exxon’s argument that its duty to restore could only materialize at the expiration of the mineral lease. While certain intended and ongoing use of the property to explore for and produce minerals may require restoration only upon termination of the lease, Exxon’s unauthorized misuse of the property amounted to actions taken without reasonable regard to the plaintiffs’ surface rights, allowing for immediate remediation. The court found that the reasonable prudent operator obligation of Article 122 was breached. The unreasonableness of the existing contamination also was a violation of the correlative rights principle of Article 11.

In Marin, the plaintiffs’ contracts for a predial lease and the mineral lease were directly with Exxon and privity of contract therefore existed between the Marin family and the company. The court was not required to discuss the effect of the real obligations of a mineral lease between the owner of the land and the owner of an incorporeal immovable who were never in privity of contract. In this case, the Butts acquired their mineral servitude from a former owner and not the plaintiffs. Likewise, the 1941 mineral lease was not a contract between McGowan and the plaintiffs. Nevertheless, even in the absence of privity of contract, the parties’ present ownership of the immovable binds them as dominant and servient estate owners to real obligations.

| (¡In Petchak v. Bossier Parish Police Jury, 45,705 (La.App.2d Cir.11/24/10), 55 So.3d 840, 852, writ denied, 11-0165 (La.4/29/11), 62 So.3d 112, this court addressed the unauthorized misuse of the defendant’s personal right of use servitude for water drainage in a residential subdivision. We stated:

Plaintiffs’ lot is therefore a servient estate that owes a charge for the benefit of the drainage of the subdivision. La. C.C. art. 646. Plaintiffs’ obligation to allow the passage of the water across their property is not a personal obligation but a real obligation because it is a charge on the servient estate that all successive owners of Lot 363 must bear. La. C.C. arts. 1763 and 1764 (footnote omitted). As a correlative real obligation governing the dismemberment of the usus right of ownership of the immovable, (footnote omitted) the owner of the dominant estate, or in this case the owner of the personal servitude, must exercise his “specified use” without exceeding the boundaries of that use in a manner damaging the concomitant use of the servient estate. See former Article 778 of 1870 Civil Code. “The owner of the dominant estate may not make use of the servitude that aggravates the condition of the servient estate.” A.N. Yiannopoulos, Predial Servitudes § 156, 4 Louisiana Civil Law Treatise (3d ed.2010).

This same correlative rights regime for personal and predial servitudes is embodied in Article 11 of the Mineral Code for the mineral rights now at issue. The plaintiffs’ causes of action against the Butts and McGowan exist from the allegations of Suit # 1 because they are landowners, in the language of Article 11, “burdened by ... mineral ... rights.” The existing misuse of the defendants’ “right to explore for and produce minerals” regardless of any prior owners’ involvement makes the present owners of the mineral rights legally responsible for remediation to restore the concurrent use of the land to the owners of the servient estate.

The conclusion that the Butts and McGowan have coextensive obligations under Article 11 generally and more specifically under Articles |722 and 122 of the Mineral Code, makes them solidary obli-gors for the “whole performance” of a singular duty to restore present use of the servient estate. La. C.C. 1794. The special regulatory cleanup for the so-called legacy suits applies as a remedy against not only the “parties who caused the damage” but also to those “who are otherwise legally responsible therefor.” La. R.S. 30:29(0(1).

As between the obligors for the restoration, however, McGowan’s obligation under Article 122 as a reasonably prudent operator is also owed to the Butts, as mineral servitude owners. Therefore, the Butts as solidary obligors of plaintiffs will have a right of indemnification from McGowan. Such indemnification right is more than enough to answer the Butts’ contentions regarding their lack of possessory rights to the land.

      . Tensas docket no. 21,407, this court's docket no. 47,428-CW.

      . Tensas docket no. 23,083, this court’s docket no. 47,388-CA.

      . The author of this opinion concurred in the writ grant, noting "the district court’s failure (or refusal) to rule on the original defendants’ long-pending motions and exceptions; a dis-positive ruling on one of these may well have obviated this application.”

      . The plaintiffs have not contended that exclusion of the Butts defendants would result in the "absence of complete relief” and thus justify joinder under La. C.C.P. art. 641.

      . According to other filings in these records, the mineral servitude was not created until 1973. If the evidence shows that the environmental damage occurred before that date, the servitude owners could not be liable for tort damage to the land but still liable for surface restoration under R.S. 31:22.

      . Part B of La. R.S. 31:11 was enacted and added to the Mineral Code in 2006. It therefore did not apply to the mineral reservation in the sale of this land which created the Butts mineral servitude. Notably, however, in adding this provision for the creation of mineral servitudes through such reservations, the Legislature recognized the link between Articles 11 and 22 of the Mineral Code limiting the use of the mineral servitude to "only so much of the land, including the surface, as is reasonably necessary to conduct ... operations.”

      . Because of this court’s ruling in Wagoner v. Chevron USA Inc., 45,507 (La.App. 2d Cir. 8/18/10), 55 So.3d 12, I will limit my consideration to the plaintiffs' cause of action in Suit # 1 against McGowan. McGowan was also the present owner of the disputed oil and gas lease in Wagoner. Yet, this court’s ruling only addressed and dismissed claims by the surface owners against the former leasehold owners in Wagoner. The argument for imposing the real obligations of the mineral lease against the former leasehold owners pursuant to La. R.S. 31:129 was made in Chief Judge Brown's dissent in Wagoner.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John Love ROBINSON, Appellant.
    No. 49,319-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Edward K. Bauman, Lake Charles, for Appellant.
    John Love Robinson, pro se.
    Charles R. Scott, II, District Attorney, Jason T. Brown, Jessica D. Cassidy, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

| tThe defendant, John Love Robinson, was charged by bill of information with possession of a Schedule I controlled dangerous substance (heroin) with intent to distribute, a violation of LSA-R.S. 40:966(A)(1). He was found guilty as charged. The trial court ordered the defendant to pay a fine in the amount of $5,000 and court costs, and to serve 25 years at hard labor,.with the first five years to be served “without benefit as per the statute.” However, the minutes incorrectly reflect that the defendant was sentenced to serve 25 years with “five (5) years of the sentence served without benefit of probation, parole or suspension of sentence.” For the following reasons, we affirm the defendant’s sentence; however, we remand this matter to the trial court with instructions to amend the court minutes to correctly reflect that, pursuant to LSA-R.S. 40:966, the first five years of the defendant’s sentence are to be served without the benefit of probation or suspension of sentence.

FACTS

On January 30, 2008, the defendant was found guilty of possession of heroin with intent to distribute. On February 5, 2009, the trial court sentenced the defendant to serve 20 years at hard labor without the benefit of probation, parole or suspension of sentence and ordered him to pay a fine of $20,000, plus court costs, or serve three years (later reduced to one year) in default of payment thereof. The trial court subsequently vacated this sentence because the state filed a habitual offender bill of information against the defendant.

Thereafter, the defendant was adjudicated a fourth-felony offender |?and was sentenced to serve life in prison at hard labor without the benefit of probation, parole or suspension of sentence. On appeal, this Court affirmed his conviction, vacated the habitual offender adjudication/enhanced sentence and remanded the matter for a new habitual offender proceeding. State v. Robinson, 46,091 (La.App.2d Cir.4/20/11), 68 So.3d 1113, twits denied, 2011-0901 (La.11/23/11), 76 So.3d 1148 and 2011-1016 (La.11/23/11), 76 So.3d 1149 (“Robinson I”).

On remand, the trial court adjudicated the defendant a second-felony offender and sentenced him to serve 40 years in prison, with the first five years to be served without the benefit of probation, parole or suspension of sentence, and the remaining 35 years to be served without the benefit of probation or suspension of sentence. Following another appeal, this Court again vacated the habitual offender adjudication and remanded for further proceedings. State v. Robinson, 47,427 (La.App.2d Cir.10/3/12), 105 So.3d 751 (“Robinson II”).

Following remand, the state elected not to seek a habitual offender adjudication. The trial court imposed a sentence of 50 years at hard labor, with the first five years to be served without the benefit of probation, parole or suspension of sentence. The court also ordered the defendant to pay a fine in the amount of $25,000, or in default of payment, to serve 60 days in jail. On appeal, this Court again vacated the defendant’s sentence and remanded the matter, instructing the trial court to “sentence the defendant to no more than 25 years at hard labor, with no parole restrictions, and no default imprisonment for nonpayment of the fíne and costs.” State v. Robinson, 48,429 (La.App.2d Cir.9/25/13), 125 So.3d 1228, 1235, writ denied, 2013-2546 (La.4/4/14), 135 So.3d 640 (“Robinson III”).

The most recent sentencing hearing was conducted on October 31, 2013, during which the court imposed the current sentence. During sentencing, the trial court stated the following:

We need to vacate any and all sentences if they have not been previously vacated. Pursuant to the Second Circuit’s ruling, this Court hereby sentences Mr. Robinson to 25 years at hard labor. The first five [years] will be without benefit as per the statute.

The court also ordered the defendant to pay a fine in the amount of $5,000, plus court costs. However, the court minutes in the record provide that the court sentenced the defendant to serve 25 years with “five (5) years of the sentence served without benefit of probation, parole or suspension of sentence.”

On December 3, 2013, the lower court denied the defendant’s motion to reconsider sentence.

The defendant appeals.

DISCUSSION

The defendant contends the sentence imposed is constitutionally excessive. He argues that, for a person of his age (66 at the time of the offense), his sentence amounts to a life sentence. He also argues that he is a non-violent offender and the amount of heroin recovered from his home (4.07 grams) was not substantial.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took |4cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,-855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions.

Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, wñt denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more 15than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

In 2006, when the defendant was arrested and charged, LSA-R.S. 40:966(B)(1) provided that a person convicted of possession with intent to distribute heroin “shall be sentenced to serve not less than five, nor more than 50 years at hard labor, with at least five years to be served without the benefit of probation or suspension of sentence[.]” Additionally, the statute provided that the person so convicted “may” be required to pay a fine of not more than $50,000.

The transcript from the defendant’s most recent sentencing hearing reveals that the trial court did not articulate reasons for the current sentence imposed. However, this Court has reviewed the record in its entirety — which includes the records from the defendant’s previous sentencings which were admitted into evidence as exhibits to the instant record— and we find that the record and exhibits provide an adequate factual basis for the | ^sentence. The district court has now sentenced the defendant a total of five times in this matter, twice as a habitual offender, and it has previously provided ample reasons for the sentence imposed. Specifically, the court has noted the following: the defendant’s criminal history; the crime of conviction is a controlled dangerous substance offense; the defendant obtained substantial income from his ongoing drug activities; rehabilitation is not a realistic goal for the defendant; and the defendant would continue to engage in criminal activities if released.

Our review of the record reveals that the defendant’s substantial criminal history spans more than 30 years, in state and federal courts, in both Louisiana and Texas. His extensive criminal history includes arrests for attempted second degree murder and second degree battery, and convictions for possession of cocaine and phenmetrazine, possession of heroin with intent to distribute, assault and battery on a police officer, simple battery, possession of cocaine with intent to distribute, possession of marijuana, use of a firearm in a drug felony, and another possession of cocaine conviction.

We find that the 25-year sentence was imposed in accordance with this Court’s instructions and is not constitutionally excessive. Considering the defendant’s extensive criminal history (particularly his propensity to commit crimes similar to the instant offense), the mid-range sentence imposed by the trial court does not shock the sense of justice, nor is it disproportionate to the severity of the offense. We find no abuse of the trial court’s discretion in the sentence before us on appeal. Accordingly, this |7assignment is without merit.

Pro Se Assignments of Error

The defendant contends the state erroneously charged him by bill of indictment. He argues that he should have been charged by a grand jury indictment.

The defendant raised this argument in a prior appeal, Robinson III. Noting LSA-C.Cr.P. art. 382, this Court determined that the claim was without merit. The defendant’s conviction became final on November 23, 2011, when the Louisiana Supreme Court denied his writ application. Therefore, the defendant is no longer entitled to seek review of issues concerning his conviction which were raised by him in a previous appeal.

The defendant also contends the trial court improperly classified him as a fourth-felony offender. He also contends the court lacked jurisdiction to resentence him or to amend or modify his original 20-year sentence. He argues that he had already begun serving his sentence after his second appeal, Robinson II; thus, the trial court no longer had jurisdiction.

The defendant’s previous habitual offender adjudication/enhanced sentence is not presently before this Court for review. Both of the defendant’s habitual offender adjudications and sentences were vacated by this Court in prior decisions. Following Robinson II, the state elected not to Isfile a habitual offender bill. Moreover, prior to imposing the current sentence, the trial court specifically “vacatefd] any and all” prior sentences. This assignment lacks merit.

Next, the defendant contends in his third appeal, Robinson III, this Court erred in instructing the trial court to sentence him to no more than 25 years in prison. He argues that this Court improperly increased and amended his original 20-year sentence, and deprived him of the right to have .the trial court exercise its sentencing discretion.

If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentencing by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose. LSA-C.Cr.P. art. 881.4(A).

In Robinson III, this Court reviewed the record, taking great care to review the sentence imposed (50 years) “in contrast with the initial 20-year sentence[.]” Following its review, this Court remanded this matter with “direction to the trial court concerning the proper sentence to impose” as expressly permitted under LSA-C.Cr.P. art. 881.4. Contrary to the defendant’s assertions, this Court did not increase or amend the defendant’s 50-year sentence by providing such instructions. Thereafter, the defendant filed a writ application with the Supreme Court; the writ was denied. Thus, this Court’s ruling and instructions set forth in Robinson III, are now final 19decisions. This assignment lacks merit.

Further, the defendant contends his original 20-year sentence was illegal. He argues that the trial court illegally ordered the sentence to be served without the benefit of parole.

In Robinson III, we noted that the defendant’s original 20-year sentence was illegal. We also noted that the sentence had been vacated in preparation of the sentencing as a habitual offender. Moreover, as stated above, prior to imposing the current sentence, the trial court expressly vacated “any and all” prior sentences. This assignment is without merit.

ERRORS PATENT

In 2006, when the defendant’s crime was committed, LSA-R.S. 40:966(B)(1) provided for a sentence of imprisonment with at least five years of the sentence to be served without the benefit of probation or suspension of sentence. The statute did not contain any prohibition against parole.

With regard to the current 25-year sentence, the trial court ordered that the first five years of the sentence be served “without benefit as per the statute.” The trial court did not expressly state that the first five years of the sentence were imposed without the benefit of parole.

Nevertheless, the minutes incorrectly reflect that five years of the defendant’s current sentence were imposed without the benefit of parole, probation or suspension of sentence. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983); State v. Rankin, 42,412 (La.App.2d Cir.9/19/07), 965 So.2d 946, writ denied, 2007-2067 (La.3/7/08), 977 So.2d 897. Therefore, we remand this matter to the trial court with instructions to amend the minutes to accurately reflect the sentence actually imposed.

CONCLUSION

The defendant’s conviction and sentence are affirmed. The trial court is hereby instructed to amend the court minutes to correctly reflect that the first five years of the defendant’s sentence were not imposed without the benefit of parole.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment shall be instituted by a grand jury indictment. Other criminal prosecutions in a district court shall be instituted by indictment or by information. LSA-C.Cr.P. art. 382(A).
      In 2006, when the defendant committed this offense, possession with intent to distribute heroin was not punishable by death or life imprisonment. See LSA-R.S. 40:966(B)(1). Therefore, the state was not required to charge the defendant by grand jury indictment.

      . Further, the defendant correctly pointed out that the jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. LSA-C.Cr.P. art. 916(A). However, this Court vacated the defendant’s prior sentences and remanded the matter to the trial court. The defendant then filed a writ application in the Supreme Court; the application was denied. Thereafter, the trial court, based on this Court's remand, was revested with jurisdiction to resentence the defendant. See, State v. Williams, 2005-1556 (La.2/17/05), 921 So.2d 105.


author: JAMES F. MCKAY III, Chief Judge.

text:
    STATE of Louisiana v. Yutico BRILEY.
    No. 2013-KA-1421.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   JAMES F. MCKAY III, Chief Judge.

hThe defendant, Yutico Briley, appeals his convictions for count one, armed robbery with a firearm, and count three, resisting arrest. He also appeals the trial court’s denial of his motion for new trial and post judgment verdict of acquittal. Finding no error, we affirm the defendant’s conviction and sentence for resisting arrest. However, while we affirm the defendant’s conviction for armed robbery with a firearm, the record evidences an errors patent with regard to the sentencing. Therefore, we remand the matter for clarification and/or resentencing in accordance with La. R.S. 14:64.3 and La. R.S. 15:529.1.

STATEMENT OF THE CASE

On January 11, 2013, Yutico Briley (“defendant”), was charged by bill of information with count one, armed robbery with a firearm, a violation of La. R.S. 14.64.3, count two, convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1 , and count three, resisting arrest, a violation of La. R.S. 14:108.

On April 24, 2013, the defendant was found guilty by a twelve-person jury with respect to count one, the charge of armed robbery with a firearm. With |2regard to count three, the charge of resisting arrest, the defendant was found guilty “by [the] judge.” On April 30, 2013, the defendant filed a motion for new trial and a motion for a post-judgment verdict of acquittal. Both motions were denied.

On May 31, 2013, the State filed a notice of information with the trial court, advising that on May 30, 2013, the State had met with the victim, Benjamin Joseph (“victim”), who had become concerned for his safety after receiving a letter from the defendant dated May 8, 2013.

On June 17, 2013, with respect to the armed robbery with a firearm charge, the defendant was sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served, to run concurrently with the other sentences. With respect to the charge of being a convicted felon in possession of a firearm, the defendant was sentenced to twelve years at hard labor, to run concurrently with the other sentences. With respect to the charge of resisting arrest, the defendant was sentenced to ninety days in Orleans Parish Prison, with credit for time served, to run concurrently with the other sentences.

The State filed a multiple-bill based on a prior 2011 conviction for possession of cocaine with intent to distribute. On June 24, 2013, after the ¡.¡multiple offenders hearing, the trial court adjudicated the defendant as a double offender and resen-tenced the defendant to sixty years at hard labor pursuant to La. R.S. 15:529.1, again noting that the armed robbery was a crime of violence. See La. R.S. 14:64.3.

On December 23, 2013, counsel for the defendant filed a supplemental brief. On January 27, 2014, the defendant filed a pro se supplemental brief, as well as a motion to remand the matter back to the trial court so that the court could rule on his pro se motion for new trial. On February 2, 2014, this Court remanded the matter to the trial court solely to rule on the defendant’s motion for new trial, if the court had not already done so. On April 24, 2014, after a hearing, the trial court denied the defendant’s motion for new trial. On June 11, 2014, the defendant filed a second supplemental pro se appellate brief.

STATEMENT OF FACT

On November 27, 2012, at approximately 2:15 a.m., Benjamin Joseph (“victim”) was returning to his home at 304 South Cortez Street after working as a sound recording engineer. As he exited his vehicle, he was approached at gun point by two young black males. He was robbed at gun point of his wallet which contained around $102.00 in cash. The perpetrators attempted to take his cell phone, but he threw it to the ground. After the perpetrators fled, the victim put his cell phone back together and called 911 and reported the incident.

Later that afternoon, Detective Kellie Morel took over the investigation of the incident. She spoke to the victim who gave her a detailed description of the perpetrators. The victim described the perpetrator with the gun as a seventeen to nineteen year old male, “slim build, medium complexion, low hairstyle,” and approximately five feet ten inches tall and wearing a gray hoodie-style pullover [¿sweatshirt. He described the gun used in the robbery as a semi-automatic, black and silver pistol. He described the second perpetrator as approximately five feet eight inches tall and wearing a blue and white striped shirt.

On the evening of November 27, 2012, Officer Shelton Abram and Officer Jason Berger were assigned to proactive duty on the Task Force Unit, a unit that proactively looked for guns, drugs, violent offenders, and hot calls in progress. At approximately 5:25 p.m., they reported to work and were briefed on pertinent activity that had occurred in the district before their shift had started. They were alerted that an armed robbery had occurred around 2:00 a.m. that morning on South Cortez Street, and were provided with a description of the suspects. One of the suspects was described as a black male clad in a gray hooded sweatshirt and armed with a black and silver handgun. Officer Abram and Officer Berger observed a suspect in the 600 Block of South Pierce Street, who matched the description and was acting suspicious by “constantly looking over his shoulder” as the officers approached, and “clutching his right hip” with his right hand as he walked. The officers also observed “a bulge protrude from the right side of his hip.” As the officers “rolled up” next to the defendant, he “took off running [at a] full sprint.” The officers ultimately apprehended the defendant at approximately 8:00 to 8:30 p.m. in a vacant lot in the 600 block of South Scott Street, which is about three blocks from where the robbery had occurred and one block away from where the officers first spotted the defendant. As Officer Abram was placing the defendant in handcuffs, a black and silver handgun fell from the defendant’s pants Ifjleg. The defendant was found to be in possession of a loaded black and silver semi-automatic handgun, as well as approximately $103.00.

At around 10:00 p.m., that same evening, the defendant was in custody at the New Orleans Police Department First District. The defendant was wearing a gray hooded sweatshirt with “a small little Polo emblem,” dark colored pants and tennis shoes.

The victim was notified by the NOPD and advised that they had a subject in custody and asked that he report to the First District Police Station on North Rampart Street; “[t]hey wanted [him] to come look at a possible suspect.” The victim was admittedly “nervous” because he feared that “the guy who pretty much threatened [his] life would see [him].” After the victim calmed down he was place in the front passenger seat of a police vehicle. The officers then conducted a show-up or one-on-one identification procedure where a spotlight was shown on the defendant so that the defendant could not see the victim sitting in the front passenger seat of the police vehicle. At the time of the identification, the defendant was handcuffed and approximately fifteen to twenty feet away from the victim. At the victim’s behest, the officer put the hood from the defendant’s sweatshirt over the defendant’s head; the victim identified the defendant with the hood of the sweatshirt both on and off of the defendant’s head as the perpetrator with the gun. He also identified the gun as the weapon that the defendant had used to rob him. The victim identified in open court, both the defendant as the perpetrator who robbed him and the gun that he used in the robbery.

ERRORS PATENT

A review of the record evidences an error patent with regard to sentencing the defendant for his conviction for one count of an armed robbery with a fire arm. La. R.S. 14:64.3 provides, in pertinent part:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

In this case, when the trial court adjudicated the defendant as a double offender pursuant to La. R.S. 15:529.1, the trial court vacated the defendant’s original sentence and resentenced the defendant to sixty years at hard labor, with credit for time served, but did not include an additional five years to be served without benefit of parole, probation, or suspension of sentence.

The Louisiana Supreme Court in State v. King, 2006-1903, p. 8 (La.10/16/07), 969 So.2d 1228, 1232, held that the additional five-year sentence' provided by La. R.S. 14:64.3 can be imposed when the defendant is sentenced pursuant to the habitual offender law.

This Court has previously held that a sentence is indeterminate and illegally lenient when the trial court fails impose a consecutive five-year enhancement sentence as mandated by La. R.S. 14:64.3(A). In State v. Burton, 2009-0826, p. 3 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076, this Court stated “[i]n cases where the minimum sentence was not imposed ... that the sentences are indeterminate, requiring that the sentences be vacated and the matter remanded for resentencing |7according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3.” Id. As a result, the Burton Court vacated the defendant’s sentence and remanded the matter for resentencing.

In State v. Adams, 2010-1140, p. 11 (La.App. 4 Cir. 6/1/11), 68 So.3d 1165, 1172-1173, this Court also remanded a case for a new sentencing hearing when it was unclear if the trial court failed to impose the “additional five years in prison pursuant to La. R.S. 14:64.3” or merely “failed to specify that it had done so.”

Accordingly, because the trial court failed to articulate whether the sentence it imposed included the mandatory additional five years for armed robbery with a firearm under La. R.S. 14:64.3(A), the sixty-year sentence is vacated and the matter remanded for clarification and/or resen-tencing in accordance with La. R.S. 14:64.3 and La. R.S. 15:529.1.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

The defendant argues that the evidence does not support the jury verdict, and that the jury did not act as a rational one, even evaluating the evidence pursuant to the Jackson standard. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This Court recently recognized the Jackson standard in State v. Pierce, 2012-0879, p. 3 (La.App. 4 Cir. 12/10/13), 131 So.3d 136, 139:

When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

1 ^Likewise, “[a]ll evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard.” State v. Pierce, 2012-0879, p. 3, 131 So.3d at 139 (citing State v. Jacobs, 504 So.2d 817 (La.1987)). The Pierce Court also recognized that the testimony of one witness, if believed by the jury, is sufficient to support a factual conclusion:

In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293 (citation omitted). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992) (citation omitted).
A fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. State v. Winston, 11-1342, pp. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citations omitted).
When the identity of the defendant as the perpetrator is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, supra. State v. Galle, 2011-0930, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935; State v. Everett, 11-714, p. 15 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 619, writs denied, 12-1593, 12-1610
(La.2/8/13), 108 So.3d 77.

State v. Pierce, 2012-0879, p. 4, 131 So.3d at 140.

In this case, the evidence was sufficient to support the jury verdict.

Detective Morel testified that the victim described the perpetrator with the handgun as a seventeen to nineteen year old male, with a slim build, medium complexion, and a low hairstyle. Detective Morel further testified that the victim |fladvised that the perpetrator with the handgun was approximately five feet, ten inches tall and wore a gray hooded sweatshirt. Detective Morel also testified that the victim described the weapon pointed at him by the perpetrator as a semiautomatic, black and silver pistol. Detective Morel testified that the defendant was apprehended that evening approximately three blocks from where the robbery occurred; that the defendant was wearing a gray hooded sweatshirt; that the defendant was carrying a black and silver semi-automatic handgun; and that the defendant was in possession of approximately, the same amount of currency that had been removed from the defendant’s wallet earlier that day. With regard to the identification of the defendant, Detective Morel testified that after the victim calmed down, he advised the officers “that’s him” and “that’s the man with the gun” after viewing the defendant in a spotlight for two to five minutes from approximately fifteen to twenty feet away. Detective Morel also testified that when she showed the victim the gun that had been seized from the defendant, the victim said “that’s the gun.”

The victim testified that the lighting on the street at the time of the robbery was “pretty good”; that he was standing approximately eight or ten feet from the defendant; that he got a good look at the defendant’s face; and that he “had a lot of eye contact” with the defendant. The victim testified that the defendant was wearing a gray hoodie, with the hood up, and that the defendant had “[k]ind of a full face, African American, not very dark skin,” slim build, between five feet eight inches and five feet eleven inches tall. The victim testified that he relayed the physical description and clothing description to the responding officers, as well as the fact that the robbers removed approximately “between 102 and 107 dollars” in cash from his wallet during the robbery. The victim further testified that he | indescribed the gun used as having a “black handle, chrome top” and was “either a 9mm or a 45” but “nothing smaller.”

With regard to the identification of the defendant, the victim testified that, after viewing the defendant for a “minute or two,” he recognized the defendant as the individual who pointed the gun in his face while robbing him. The victim also testified that he recognized the defendant with the hood of the sweatshirt both on and off.

Additionally, Officer Abram testified that he observed the defendant near the location of the robbery, wearing a gray hooded sweatshirt, “constantly looking over his shoulder” as Officer Abram and his partner approached. Officer Abram also testified that the defendant was “clutching his right hip” as he walked and that “a bulge protrude[d] from the right side of his hip.” Officer Abram testified that the defendant “took off running [at a] full sprint” as he and his partner approached. When the defendant was apprehended, Officer Abram testified, a black and silver handgun was seized from the defendant’s pant leg, as well as approximately $103.00 in cash.

The defendant contends that there was nothing specific in the victim’s identification of him, such as distinctive facial characteristics or facial hair, which is evident on the defendant’s booking photograph. However, as previously noted, the victim’s description of the perpetrator with the gun included specific facial characteristics, including the description of the perpetrator as having a “full face” with “not very dark skin,” as well as a “low hairstyle.” The defendant also argues that the victim did not mention the red Polo logo on the sweatshirt and testified that he observed no customization of the weapon used in the robbery. However, hi although the victim did not testify regarding the small Polo logo on the sweatshirt, Detective Morel testified that the logo was a “small little Polo emblem.”

The defendant concedes that the credibility of witnesses is not reviewed on appeal, but nevertheless argues that the victim’s ability to perceive events at the time of the robbery was impaired because his mental condition as depicted in the 911 call and as described by Detective Morel at trial during the identification procedure suggest that the victim was too terrified to have noticed physical characteristics of his perpetrator. Likewise, the defendant argues that the victim was so terrified at the time of the show-up identification that he made his identification of the defendant solely because he was handcuffed and flanked by police officers, wearing a gray hooded sweatshirt, and reportedly carried a black and chrome handgun.

The victim testified that he had a good view of the defendant’s face and “a lot of eye contact” at the time of the robbery, and he recognized the defendant by his face during the show-up identification. Accordingly, the record does not support the argument that the victim made his identification of the defendant solely because he was handcuffed, flanked by police officers, wearing a gray hooded sweatshirt and carrying a black and chrome handgun. Furthermore, a review of the 911 recording evidences that the victim was composed and rational in reporting the robbery to the 911 operator. At the show-up identification, Detective Morel testified that the victim was nervous at first because he feared the perpetrator could see him sitting in the police car, but was able to calm down before making the identification of the defendant. Likewise, the victim testified that he was “kind of freaked out at first” during the identification procedure, but he calmed down after a couple of minutes. Thus, the record does not evidence that the victim’s ability to | ^perceive events at the time of the robbery was impaired or that he was too terrified at the time of the show-up identification to accurately identify the defendant as the perpetrator.

In the defendant’s December 23, 2013 supplemental counseled brief, he argues that in the 911 phone call, the victim did not mention a hooded sweatshirt, a logo, or the fact that the perpetrator had the hood of the sweatshirt up during the robbery. The defendant further submits that the 911 CD evidences that the victim described the perpetrators’ clothing as “sweaters,” including a description of the second perpetrator’s sweater as having “subtle blue and black stripes” going “left to right.” The defendant also argues that the CD evidences that when the 911 operator pressed the victim for a further description, he did not provide any further details, advising the operator that it happened “kind of fast” and that it was “kind of dark.” Thus, the defendant argues that his conviction should be reversed because the information relayed to the 911 operator differed from the victim’s testimony at trial.

A review of the 911 recording clearly evidences that the victim described the perpetrator with the gun as a black male wearing a “gray sweater” and jeans. The difference between a “gray sweater” and “gray sweatshirt” is not a significant discrepancy. Additionally, Detective Morel’s testimony regarding the victim’s description of the defendant was substantially similar to the victim’s testimony regarding the description he provided officers of the defendant. Officer Abram’s testimony regarding the description provided to officers of the perpetrator with a gun was also substantially similar to the victim’s testimony regarding the description he provided officers at trial. Furthermore, although the victim did advise the 911 operator that it happened “kind of fast” and it was dark, as | ^previously noted, the victim testified at trial that the street had good lighting, and he had a good view of and made eye contact with the defendant. Therefore, considering the consistency of the trial testimony regarding the clothing description of the defendant, the record does not evidence that the jury did not act rationally in finding that the evidence was sufficient to support a guilty verdict for armed robbery. Thus, this argument lacks merit.

Finally, in the defendant’s January 27, 2014 pro se supplemental brief, he argues that the victim’s identification of him was questionable because he testified that the perpetrator with the gun was eight to ten feet away; that although the victim described the perpetrator with the gun as having a “low hairstyle,” it would not be possible for the victim to see the perpetrator’s hairstyle if the hood of the sweatshirt was over the perpetrator’s head during the robbery; that the victim did not state in the 911 call that the gunman was wearing a hooded sweatshirt; and that “the State also did not present any evidence at trial that the location [the defendant] ran to was two to three blocks from the location of the robbery.”

For the reasons discussed above, the fact that the victim indicated to the 911 operator that the defendant was wearing a “gray sweater” rather than a gray hooded sweatshirt does not support the argument that the evidence was insufficient to support the jury verdict. With regard to the description of the gunman as having a “low hairstyle,” it could have been possible for the victim to partially view the defendant’s hairstyle even with the hood of the sweatshirt raised. In any event, the victim testified that he had a good view and a lot of eye contact with the defendant during the robbery, and he testified that he recognized the defendant by his face at the show-up identification.

114The defendant also argues that the victim did not testify regarding any customizations to the gun, the victim’s description of the gun matched the gun that was seized from the defendant, and the victim identified the gun at the time of the show-up identification of the defendant as the gun that was pointed at his face. Additionally, the victim identified the gun at trial.

With regard to the defendant’s argument that the State did not present any evidence that the location to which the defendant fled when attempting to evade officers was two to three blocks from the location of the armed robbery, Detective Morel testified that the defendant was apprehended on “South Pierce Street approximately three blocks from where the initial robbery occurred. It was three blocks down.” Additionally, Officer Abram testified that the defendant was apprehended in a vacant lot on the 600 block of South Scott Street, which was approximately one block from the 600 block of South Pierce Street. The State established that the defendant was both initially observed and apprehended in the near vicinity of the location of the armed robbery earlier that morning.

For the reasons discussed with respect to the second assignment of error, the defendant’s pro se argument that the victim’s identification of him was questionable because he was eight to ten feet from the defendant at the time of the robbery is not supported by the record. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant next argues that the trial judge abused his discretion in denying the motion to suppress the identification and erred in allowing as evidence at trial both the out-of-court identification and the tainted in-court identification flowing directly from it. The defendant’s December 23, 2013 counseled supplemental brief also raises the argument that the identification procedure was |1Bsuggestive and that the trial court erred in failing to grant the motion to suppress. Additionally, in the defendant’s pro se supplemental brief filed on January 27, 2014, he argues that the identification procedure in this case was suggestive. The defendant also argues that there was a likelihood of misidentification because the victim testified that he was eight to ten feet away from the defendant during the quick robbery.

In State v. Norah, 2012-1194, p. 12 (La.App. 4 Cir. 12/11/13), 131 So.3d 172, 183, this Court recognized that a trial court’s ruling with regard to a motion to suppress identification will not be disturbed absent an abuse of discretion:

We review a trial court’s determination on the admissibility of an out-of-court identification and its subsequent denial of a motion to suppress for abuse-of-discretion. See State v. Brown, 09-0884, p. 3 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, 978; State v. Bickham, 404 So.2d 929, 934 (La.1981). Our review is not limited in scope to the evidence introduced at the hearing on the motion to suppress; rather, our consideration extends to all pertinent evidence adduced at trial. See State v. Chopin, 372 So.2d 1222, 1224 n. 2 (La.1979); State v. Williams, 572 So.2d 756, 757 (La.App. 4th Cir.1990).

“To prevail on such a motion, a defendant must show that the identification procedure in question was suggestive, [s]ee Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 384-385, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and that the procedure created a substantial likelihood of misidentification such that defendant was denied due process of law.” State v. Norah, 2012-1194, p. 13, 131 So.3d at 184 (citing Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Prudholm, 446 So.2d 729, 738 (La.1984)). To meet the burden of establishing that the identification procedure was suggestive, a defendant may “attempt[] to show that the police’s conduct in organizing and administering the identification was improper.” State v. Norah, 2012-1194, p. 13, 131 So.3d at 184 (citing Perry v. New Hampshire, — U.S. -, -, 132 S.Ct. 716, 724, 181 L.Ed.2d 694 (2012)). This Court has “long-held that an identification is suggestive if the witness’ attention is ‘unduly focused’ on the defendant.” State v. Norah, 2012-1194, p. 13, 131 So.3d at 184 (citing State v. Brown, 2009-0884 at p. 5, 36 So.3d at 979; State v. Robinson, 386 So.2d 1374, 1377 (La.1980)).

In this case, the identification made by the victim was a “show-up” or one-on-one identification, which is “an identification procedure ... whereby a victim is asked whether the victim recognizes the person suspected to be the perpetrator of a crime against the victim.” State v. Norah, 2012-1194, p. 14, 131 So.3d at 184 (citing State v. Harold, 03-0649, p. 6 n. 2 (La.App. 4 Cir. 11/12/03), 861 So.2d 262, 265). “One-on-one identifications are not favored by the law, but they are nevertheless permissible when justified by the overall circumstances.” State v. Brown, 2009-0884, p. 5 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, 979 (citing State v. Dunbar, 356 So.2d 956, 962 (La.1978)). Thus, “[s]uch procedures are permissible when, for example, the accused is apprehended within a short time after the offense and is returned to the scene of the crime for immediate identification, because, under appropriate circumstances, a prompt in-the-field identification promotes accuracy and expedites the release of innocent suspects.” State v. Brown, 2009-0884, pp. 5-6, 36 So.3d at 979 (citing State v. Bickham, 404 So.2d 929, 934 (La.1981)). Additionally, this Court has determined that “[a] show up, without more, is not suggestive per se,” and “[s]uggestiveness of an out-of-court identification alone ... does not necessitate suppression.” State v. Norah, 2012-1194, p. 14, 131 So.3d at 184 (citing Perry, 132 S.Ct. at 724).

Although this Court has held that a show-up identification, without more, is not necessarily suggestive, in this case, the defendant was in the spotlight, 117handcuffed, flanked by at least one police officer, and the hood of his sweatshirt was raised over his head and lowered. Additionally, the victim testified that before the identification, officers advised him that “[t]hey wanted me to come look at a possible suspect.” Considering these factors, even though the victim testified that he was not coerced into identifying the defendant, the one-on-one/show-up identification in this case was arguably suggestive.

Assuming arguendo that the show-up identification procedure was suggestive, this Court must determine whether there was a likelihood of misidentification. With regard to determining whether there was a likelihood of misidentification of a suspect, this Court has stated:

In determining the likelihood of mis-identification of a suspect, a court must look to the “totality of the circumstances” as informed by the five factors set forth by the United States Supreme Court in Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375. These factors include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” , Id. Any corrupting effect of a suggestive identification is to be weighed against these factors. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

State v. Brown, 2009-0884, p. 5, 36 So.3d at 979.

With regard to the first factor, the opportunity of the witness to view the perpetrator at the time of the crime, the victim testified at trial that he was eight to | 18ten feet from the defendant, and the lighting on the street was “pretty good.” The victim also testified that he was able to get a good look at the defendant’s face, stating that he “had a lot of eye contact” with the defendant. Thus, although there was no daylight at the time of the robbery, the victim had ample lighting and opportunity to view the defendant at the time of the crime.

The second factor, the witness’ degree of attention, also weighs in favor of the State. The victim testified that the defendant was the perpetrator closest to him and the one that he “g[o]t the best look at.” Additionally, the victim testified that he “didn’t pay too much attention” to the perpetrator without the gun, and he responded in the affirmative when asked whether he was focused on the perpetrator with the gun. The victim testified “I looked at his face.” Thus, although the robbery encounter took only a few minutes, the victim’s attention was highly focused on the defendant.

With regard to the third factor, the accuracy of the witness’ prior description of the perpetrator, Detective Morel testified that the victim described the perpetrator with the gun as a seventeen to nineteen year old male, slim build, medium complexion, low hair style, approximately five feet ten inches tall, and wearing a gray hooded sweatshirt. The victim testified that he described the perpetrator with the gun, as an African-American male, with “[k]ind of a full face, not very dark skin,” between five feet eight inches and five feet eleven inches tall, slim build, and wearing a gray hooded sweatshirt.

With regard to the fourth factor, the level of certainty demonstrated by the witness at the confrontation, this factor weighs in favor of the State. Although the victim testified that he was “kind of freaked out at first” and “nervous” prior to identifying the defendant, he also testified that he calmed down prior to making his | ^identification. The victim testified that after he calmed down and viewed the defendant for “a minute or two,” he recognized the defendant ,by his face as the perpetrator with the gun. He also testified that he recognized the defendant with the hood of the sweatshirt both on and off. Additionally, Detective Morel testified that when the victim identified the defendant, he said “that’s him” and “that’s the man with the gun.”

The fifth factor, the length of time between the crime and the confrontation, was discussed by in State v. Brown, 2009-0884, p. 8, 36 So.3d at 980, wherein this Court recognized that with respect to show-up identifications, the length of time between the crime and the confrontation factor is typically satisfied when the identification occurs within an hour of the crime:

State v. Bickham requires that the show up identification occur within a short time after the offense. This temporal factor is generally satisfied when the identification occurs within an hour of the crime. See, e.g., State v. Valentine, 570 So.2d 533, 537 (La.App. 4 Cir.1990), and see also State v. Harold, supra, at n. 2 (finding that the final Big-gers factor is satisfied when the entire criminal episode, from the time of the crime to the identification, takes place within an hour). Here, approximately 30-40 minutes transpired between the commission of the crime and the one-on-one show up identification, and Mr. Brown has not pointed to any other evidence or supporting authority to indi- ■ cate that this delay is unreasonable.

In this case, the robbery occurred at approximately 2:00 a.m., and the victim identified the defendant at the show-up identification at approximately 10:00 p.m. Thus, approximately twenty hours elapsed between the crime and the identification. While this delay is longer than what this Court has generally held to be acceptable, this Court has found that a delay of nine hours before a show-up identification was made was valid. See State v. Green, 2010-0791, p. 12 (La.App. 4 Cir. 9/28/11); 84 So.3d 573, 582 (“While nine hours between the crime and the identification might be somewhat longer [than] that in many, even most, one-onjone20 identification scenarios, it is not long at all insofar as identification procedures in general and was done within a short period of time after the defendants were apprehended with the victim’s car.”); see also State v. Buhcannon, 2011-1727, p. 9 (La.App. 4 Cir. 3/13/13); 112 So.3d 312, 318 (relying upon Green to find that “[wjhile a six hour delay may not be ideal, this court recently' upheld a one-on-one identification made nine hours after the crime.”)

In this case, the victim’s identification of the defendant approximately twenty hours after the robbery did not have a “corrupting effect” on the identification. See State v. Brown, 2009-0884, p. 5, 36 So.3d at 979. Thus, although the identification procedure was arguably suggestive, the record does not evidence that there was a substantial likelihood of misidentification. This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

With regard to the defendant’s pro se supplemental brief that was filed on June 11, 2014, in a sole supplemental assignment of error, the defendant contends that his motion for new trial should have been granted pursuant to La.C.Cr.P. arts. 851(3) and 854 because new evidence had been discovered after trial, specifically, the victim’s statement to the District Attorney’s office that he was not one hundred percent sure that the defendant was one of the perpetrators who robbed him.

The victim’s indication that he was only eighty-five to ninety percent sure that the defendant was the perpetrator with the gun only after receiving a threatening letter from the defendant in which the defendant attempted to bribe the 121victim is not a sufficient ground to grant a new trial. The victim’s post-trial statement to the District Attorney’s office regarding the change in his percentage of certainty regarding his identification of the defendant is essentially a recantation. The Louisiana Supreme Court has recognized that “recantations are highly suspicious and, except in rare circumstances, a motion for new trial should not be granted on the basis of a recantation since that disclaimer is tantamount to admission of perjury so as to discredit the witness at a later trial.” State v. Prudholm, 446 So.2d 729, 736 (La.1984)(citing State v. Clayton, 427 So.2d 827 (La.1982)). Likewise, this Court has held that “[recantations of trial testimony should be looked upon with the utmost suspicion.” State v. Ward, 542 So.2d 737, 739 (La.App. 4th Cir.1989)(citing State v. Tyler, 342 So.2d 574 (La.1977)). The Ward Court also recognized that “[t]o refuse to grant a new trial on such a basis is not an abuse of discretion” because “[a] recantation at a new trial is a confession to |22perjury which destroys the credibility of the witness.” State v. Ward, 542 So.2d at 739 (citing State v. Linkletter, 345 So.2d 452 (La.1977)).

Additionally, it is well-settled that to obtain a new trial based upon allegedly newly discovered evidence, the following prerequisites must be met:

In order to obtain a new trial based on newly discovered evidence, the defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; .and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. La.C.Cr.P. art. 851(3); State v. Brisban, 2000-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931; State v. Lindsey, 2012-1195, p. 13 (La.App. 4 Cir. 11/20/13), 129 So.3d 759, 767. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the reliability of the evidence and its impact on the verdict. State v. Taylor, 2012-0114, p. 12 (LaApp. 4 Cir. 11/28/12), 104 So.3d 679, 687, writ denied, 2012-2599 (La.5/3/13), 113 So.3d 211. A trial court’s ruling on a motion for new trial will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Quimby, 419 So.2d 951, 960 (La.1982).

State v. Weathersby, 2013-0258, pp. 20-21 (La.App. 4 Cir. 4/16/14), 140 So.3d 260, 273.

Additionally, La.C.Cr.P. art. 854 provides:

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

123In the defendant’s motion for new trial, he asserted that the post-trial statement made by the victim to the District Attorney’s office was not a recantation, but “confirms and strengthens [the victim’s] testimony that he was focused on other circumstances, which according to his 911 call, happened kind of fast.” Thus, the defendant did not establish that the victim’s post-trial statement was not a recantation, but instead attempted to make a sufficiency argument. Most importantly, the defendant ignored the fact that the victim made his post-trial statement only after receiving a letter from the defendant in which the defendant not only vaguely threatened the victim, but also offered to pay him to change his trial testimony. At the hearing on the defendant’s motion for new trial, the trial court questioned the defendant regarding the offer of money in his correspondence to the victim, and the defendant admitted to offering the money. The trial court suggested that the offer of money to the victim tainted his “slight change of heart,” denying the defendant’s motion and finding as follows:

However, as the law stands today the identification issue, sir, was a factual determination and a factual finding that was up to the jury to make and they made it. This Court cannot state as a matter of law that the change from 100 percent to 85 to 90 percent assuredness especially when we add the money component. [sic] It[’]s such that had that testimony been the original testimony I need to be convinced that that would have changed the verdict in this case. I got to be honest with you. With what is before me I am not convinced that slight percentage change would have changed the outcome in this case. That is the standard that this Court has to go by. As such unfortunately I have to deny your motion for a new trial.

The trial, court did not abuse its discretion in denying the defendant’s .motion for new trial. As previously noted, the defendant’s alleged newly discovered evidence was a recantation by the victim of his trial testimony that he was one hundred percent certain the defendant was the perpetrator who robbed him with a gun, wherein he indicated that he was eight-five to [^ninety percent certain. As previously noted, “recantations are highly suspicious and, except in rare circumstances, a motion for new trial should not be granted on the basis of a recantation since that disclaimer is tantamount to admission of perjury so as to discredit the witness at a later trial.” State v. Prudholm, 446 So.2d at 736. Furthermore, the recantation is made even more suspicious by virtue of the fact that it resulted directly from the victim’s receipt of correspondence from the defendant in which the defendant threatened and attempted to bribe him. Additionally, as the trial court noted, the defendant did not establish that this slight percentage change was of such a nature that it would have changed the guilty verdict. See State v. Weathersby, 2013-0258, pp. 20-21, 140 So.3d at 273. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence is affirmed with respect to the violation of La. R.S. 14:108, resisting arrest. However, because the trial court failed to articulate whether the sentence it imposed included the mandatory additional five years for armed robbery with a firearm under La. R.S. 14:64.3(A), the conviction is affirmed and the sixty-year sentence is vacated and remanded for clarification and/or resen-tencing in accordance with La. R.S. 14:64.3 and La. R.S. 15:529.1.

CONVICTION AND SENTENCE AFFIRMED; VACATED IN PART AND REMANDED IN PART.

      . Regarding count two, on April 24, 2013, the defendant withdrew his plea of not guilty and entered a guilty plea to the charge of a convicted felon in possession of a firearm. See La. R.S. 14:95.1. The defendant is not appealing this conviction and sentence.

      . The letter from the defendant advised the victim that his sentencing hearing was set for May 12, 2013, and he wanted the victim to be there "to witness how you threw my life away.” The defendant contended that at the time the victim was robbed, he was at the Evergreen Motel, and he only carried a gun to protect himself because several of his friends had been killed. He further advised the victim that he "had your address since January and I never had intentions on doing you anything [sic].” The defendant suggested that the two men who robbed the victim were still "out there” and could rob him again. The defendant requested that the victim go to the District Attorney’s office and "tell the truth ... or that you are not sure who robbed you.” The defendant averred that his family would have to spend $10,000.00 on his appeal, "so if you want money to tell the truth, my family would pay and if the District Attorney co-hersed [sic] you, we could both file civil suit[s] and gain financially] too.” The defendant concluded by providing the phone numbers of his mother and father, stating, “please call they will pay you if that’s what you want sir.”

      . As previously noted, on April 24, 2013, the defendant pled guilty to this charge.

      . We note, the victim asserted that he had $102.00 in his wallet at the time he was armed robbed. However, eight hours later the defendant was arrested with approximately $103.00.

      . It is noted that the sentence is within the appropriate range pursuant to La. R.S. 15:529.1.

      . This Court recognized the five Manson factors in State v. Santos-Castro, 2012-0568, pp. 21-22 (La.App. 4 Cir. 7/31/13), 120 So.3d 933, 946-47, as follows:
      The five factors include: 1) the witness’s opportunity to view the criminal at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Manson, 432 U.S. at 114-15, 97 S.Ct. at 2254.

      . As previously noted herein, in the defendant’s pro se supplemental brief filed on January 27, 2014, he contends that although Detective Morel testified that the victim described the gunman as having a low hairstyle, it would be impossible for the victim to know the gunman’s hairstyle if the sweatshirt hood was up the entire time of the robbery. The defendant also notes that the victim expressed to the State that he was not one hundred percent sure of his identification of the defendant after receiving the defendant’s letter dated May 8, 2013.

      . La.C.Cr.P. art. 851 provides:
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence;
      (2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. [Emphasis added]