author: LOGUE, J.

text:
    DEMIDA MIAMI GARDENS, LLC, and David Paul, Individually, Appellants, v. MASTER EXCAVATORS, INC., Appellee.
    No. 3D12-873.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 2013.
    Sutton Law Group, P.A., and John R. Sutton, for appellants.
    Law Offices of Gary B. Goldman, and Gary B. Goldman, for appellee.
    Before WELLS, C.J., and CORTINAS and LOGUE, JJ.
   LOGUE, J.

Demida Miami Gardens, LLC, and David Paul, individually (collectively, “appellants”), appeal a final judgment in the amount of $933,617.43 entered against appellants, which resulted from an action by appellee, Master Excavators, Inc., to enforce a personal guarantee that was provided to Master by Paul. On appeal, appellants assert that the guarantee is unenforceable because there was no consideration for the guarantee and Master failed to satisfy conditions precedent to its enforcement. We reject both arguments. These factual issues were hotly disputed at trial. While the record contains testimony and evidence that supports appellants’ arguments, it also contains other competent and substantial testimony and evidence that directly contradicts them. “On this record, we could reverse only by re-weighing the evidence and the credibility of the witnesses — a function not ascribed to this court.” G & G Fashion Design, Inc. v. Garcia, 870 So.2d 870, 873 (Fla. 3d DCA 2004).

Appellants also assert that, although the guarantee was personal to Paul alone, the final judgment was entered erroneously against both appellants, and in an amount that exceeded the amount requested by Master at trial. On Master’s proper confession of error, we remand to the trial court for entry of a final judgment against Paul only, and for the trial court to reduce the amount of the final judgment from $933,617.43 to $908,292.39. In all other respects, the final judgment is affirmed.

Affirmed, in part, reversed, in part, and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Toronto A. FLANDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-853.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 2013.
    Rehearing Denied March 15, 2013.
    Toronto A. Flanders, in proper person. Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.140(g) (“An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense.... No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.”) (emphasis added).


text:
    Robert C. LANE, JR., Appellant, v. Lidiya M. LANE, Appellee.
    No. 5D12-3270.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.

      Robert C. Lane, Jr., Inverness, pro se.
    Lidiya M. Lane, Melbourne, pro se.
   PER CURIAM.

The husband appeals from á Final Judgment of Dissolution of Marriage. Our review is limited because of the lack of a trial transcript. In the absence of a trial transcript, we are obligated to affirm the trial court unless clear error appears on the face of the final judgment. Murphy v. Murphy, 948 So.2d 864 (Fla. 5th DCA 2007).

AFFIRMED.

ORFINGER, C.J., SAWAYA and EVANDER, JJ., concur.


text:
    EVIDENCE-BASED ASSOCIATES, Petitioner, v. STATE of Florida, DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D13-0852.
    District Court of Appeal of Florida, First District.
    March 4, 2013.
    Robert H. Hosay and James A. McKee of Foley & Lardner, LLP, Tallahassee, for Petitioner.
    John Milla, Assistant General Counsel, Department of Juvenile Justice, Tallahassee, for Respondent.
   PER CURIAM.

We find that the Department of Juvenile Justice’s Certification Memorandum fails to satisfy the statutory standard of Section 120.57(3)(c), Florida Statutes. See Cimbro Corp. v. Jacksonville Transportation Authority, 473 So.2d 209 (Fla. 1st DCA 1985). The petition for review of non-final agency action is therefore GRANTED and the Department’s Certification memorandum is QUASHED. The statutory stay shall remain in effect pending resolution of bid protest proceedings.

WOLF, THOMAS and ROBERTS, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Jeffrey ZEISSET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1025.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit, and Robert Kal-ter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, and Jacob Addicott, Certified Legal Intern, for appellee.

      Before SUAREZ and LOGUE, JJ„ and SCHWARTZ, Senior Judge.
   On Confession of Error

SCHWARTZ, Senior Judge.

The defendant appeals from an order determining the amount of restitution required for unreturned items of personal property — a TV, a play station, and the like — which he took from a locker unit he had burglarized. The state commendably confesses that the trial court erred in determining the amount of restitution on the basis only of the cost of the items’ replacement. To the contrary, the applicable standard is the fair market value of the property, as to which the State introduced no evidence below. See J.D.H. v. State, 931 So.2d 241, 242 (Fla. 5th DCA 2006); Aboyoun v. State, 842 So.2d 238, 240 (Fla. 2d DCA 2003); State v. Hawthorne, 573 So.2d 330 (Fla.1991). Accordingly, as both sides agree, the order under review is vacated for a new hearing at which the State will be required to establish the fair market value of the items taken from the victims.

Vacated and remanded.


author: ROSEMARY LEDET, Judgé.

text:
    Melanie DAVIS v. RECREATION DEPARTMENT.
    No. 2012-CA-1273.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2013.
    Eric J. Hessler, Attorney at Law, New Orleans, LA, for Plaintifi/Appellant.
    Elizabeth Robins, Shawn Lindsay, Assistant City Attorneys, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judgé.

| j This is a Civil Service Commission of the City of New Orleans (“CSC”) case. The appellant, Melanie Davis, seeks review of the CSC’s denial of her appeal of the discipline imposed by the appointing authority, the New Orleans Recreation Department (“NORD”). For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 8, 2010, NORD issued a disciplinary letter to Ms. Davis, terminating her employment for the following reason:

On December 2, 2010, you physically assaulted another employee that resulted in the police being called out and charges of battery against you were filed with the New Orleans Police Department. Results from our internal investigation have proven that your unbecoming behavior was unprovoked.

On January 5, 2011, NORD rescinded the termination and imposed a 120-day emergency suspension without pay. On February 3, 2011, a pre-termination hearing was held. On February 9, 2011, NORD issued a letter of termination based on its determination that Ms. Davis was the aggressor in a physical altercation with a fellow NORD employee, Terresyna Lee. Upon receipt of each of the disciplinary letters, Ms. Davis filed appeals with the CSC. The CSC consolidated the appeals and appointed a hearing officer to receive testimony.

IpThe discipline in this case was based on a physical altercation that occurred on the job between Ms. Davis and a co-worker, Ms. Lee. The altercation occurred on the afternoon of December 2, 2010, outside the St. Bernard NORD facility (gym). Ms. Lee was standing outside the gym having a conversation with another NORD employee, Barbara Ganheart, when Ms. Davis exited the gym and approached them. Ms. Davis told Ms. Lee that she wanted to talk to her. Ms. Lee replied that she too wanted to talk to Ms. Davis. Ms. Davis then accused Ms. Lee of checking into her time (her employment time records). According to Ms. Lee and Ms. Ganheart, Ms. Davis was the aggressor in the ensuing altercation. According to Ms. Davis, Ms. Lee was the aggressor. The pertinent testimony at the hearing was as follows.

Ms. Lee testified that she previously was Ms. Davis’ supervisor. In that capacity, Ms. Lee informed Ms. Davis that she could not use her accrued sick leave, but rather had to use her annual leave, to take time off from her NORD job to perform her other job. Her other job was as a referee for the National College Athletic Association (NCAA) at basketball games. Ms. Lee further testified that in 2008, Ms. Davis was transferred elsewhere in NORD. Continuing, Ms. Lee noted that since that time she neither was Ms. Davis’ supervisor nor had any involvement with Ms. Davis’ time sheet information. Nonetheless, Ms. Davis was under the impression that Ms. Lee was talking behind her back to her supervisors regarding her alleged improper use of sick leave.

|sAccording to Ms. Lee, on the day of the altercation, Ms. Davis confronted Ms. Lee “ranting and raving” about Ms. Lee’s alleged checking on Ms. Davis’ time records. Ms. Lee told Ms. Davis that she did not know what she was talking about and asked her to move from over in front of her. At that point, Ms. Davis punched her in the mouth and hit her several more times. Several people then ran outside and pulled them apart. Ms. Davis tried to come back at Ms. Lee, but she was pulled away again. According to Ms. Lee, she did nothing to instigate the altercation. She denied hitting or touching Ms. Davis.

After the altercation, Ms. Lee contacted NORD and then called 911. The police issued a citation to Ms. Davis for battery, but did not issue one to Ms. Lee. On the following day, Ms. Lee was treated at the emergency room. The injuries she sustained included bruising and swelling. She explained that she had a swollen lip and some “eggs” in the areas where Ms. Davis punched her. Ms. Lee acknowledged that Ms. Davis paid her medical bills, which were $552. Ms. Lee denied seeing Mr. Rudolph Brown, a former co-worker, outside at the time of the altercation. .

Ms. Lee’s testimony was corroborated by her co-worker, Ms. Ganheart. According to Ms. Ganheart, immediately before the altercation she and Ms. Lee were standing outside the gym discussing Ms. Ganheart’s new bracelet when Ms. Davis approached them. Ms. Davis and Ms. Lee took a few steps towards one another. They were “chest-to-ehest,” and Ms. Davis suddenly punched Ms. Lee in the face. She testified that Ms. Lee did nothing to provoke the altercation, and she denied seeing Ms. Lee place her hands on Ms. Davis. She characterized Ms. Davis as the aggressor. She denied seeing Mr. Brown in the area at the time of the altercation. Ms. Ganheart noted that the altercation occurred at about 3:30 p.m. on|4a weekday when children were present at the gym. She testified that the doors to the gym were open during the altercation. Ms. Ganheart indicated that she had known both Ms. Lee and Ms. Davis for about twenty years as co-workers and as friends and that she would not slant her testimony in favor of either of them.

Ms. Davis testified that moments before the altercation she and Mr. Brown had a conversation regarding a belt that she had in her vehicle for him. Ms. Davis explained that Mr. Brown had just had surgery and that the belt was for his belly. Ms. Davis went to retrieve her car keys, and Mr. Brown went outside the gym to smoke a cigarette. When she exited the gym, Mr. Brown was outside smoking a cigarette and Ms. Lee and Ms. Ganheart were outside engaging in a conversation. According to Ms. Davis, Ms. Lee started coming towards her as she was walking to her vehicle. At that point, they began fussing with each other. Ms. Ganheart told them to stop and put her hand between them. At that point, Ms. Davis testified that Ms. Lee pushed her. After being pushed, Ms. Davis punched Ms. Lee. After she punched Ms. Lee, Ms. Davis began to retreat, but Ms. Lee kept coming towards her. Ms. Lee was swinging and hitting as she kept moving towards Ms. Davis. Ms. Davis kept backing up, and in defending herself, fought back. Eventually, someone broke up the altercation.

Responding to NORD’s counsel’s questioning, Ms. Davis acknowledged that in a written statement that she prepared a half-hour after the incident, she stated that she pushed Ms. Lee and that they then started fighting.

Ms. Davis noted that she had known Ms. Lee for years and that until Ms. Lee became her supervisor sometime after Hurricane Katrina (after August 2005), she never had any problems with her. As noted, the dispute between them related to Ms. Lee questioning the leave time Ms. Davis took in order to perform her ^duties as a NCAA referee. Later, after Ms. Davis was no longer under Ms. Lee’s supervision, Ms. Davis claimed that she heard that Ms. Lee continued to question her leave time. Ms. Davis explained that she did not know she could not use her sick leave to referee the basketball games. Ms. Davis explained that she had never been disciplined for misuse of leave time or for any other reason during her employment with NORD.

Ms. Davis acknowledged that she received a municipal citation for battery as a result of the altercation. Ms. Davis testified that she pled no contest to the municipal battery charge because she needed the matter quickly resolved. She explained that she needed to pass her yearly NCAA background check. Ms. Davis testified that she did not understand the procedure and that she was guided in entering a no contest plea by a court employee, who was also a referee. She believed that by pleading no contest, the matter would be removed from her record after she paid court costs. In the municipal court, she received a ninety day suspended sentence and was ordered to pay court costs and restitution in the amount of $552 (the amount of Ms. Lee’s medical expenses).

Mr. Brown, a former NORD employee, testified on Ms. Davis’ behalf. He stated that he was at the NORD facility (gym) at the time of the altercation. He explained that Ms. Davis informed him that she had some stuff in her car that he could rub on his leg for pain. Mr. Brown stepped outside to smoke a cigarette while Ms. Davis went to get her car keys. According to Mr. Brown, after Ms. Davis exited the facility, Ms. Lee bumped her body into Ms. Davis. When Ms. Davis asked what was wrong with Ms. Lee, Mr. Brown testified that Ms. Lee | (¡bumped into Ms. Davis a second time. Mr. Brown stated that Ms. Lee then bumped into Ms. Davis a third time, and Ms. Davis hit Ms. Lee. Mr. Brown stated that he was positive Ms. Lee bumped into Ms. Davis three times. Mr. Brown further stated that he had just been released from the hospital so he could not break up the altercation. Mr. Brown still further stated that another individual ran out of the gym and grabbed Ms. Davis. Ms. Lee grabbed Ms. Davis by the hair and hit her in the back. Mr. Brown testified that other people arrived and grabbed Ms. Lee. Mr. Brown stated that neither the police nor NORD asked him to give a statement.

Arnie Fielkow, then a New Orleans City Council member, testified on Ms. Davis’ behalf as a character witness. He denied any knowledge of the altercation. He testified that he knew Ms. Davis from her NORD employment and from basketball. He further testified that she was always respectful of the players and the spectators while performing her referee .duties.

Mr. Richard, NORD’s director, testified that he was responsible for supervising all NORD’s employees. Given that most of NORD’s programs are for youth, NORD employees are expected at all times to be role models. Both Ms. Lee and Ms. Davis were employed by NORD in management capacities. NORD began investigating the altercation immediately, and Ms. Lee was placed on leave with pay pending the investigation. NORD’s investigation revealed that the people present at the time of the altercation were Ms. Lee, Ms. Davis, and Ms. Ganheart. NORD’s investigation determined that Ms. Lee was the victim of an “unprovoked physical altercation between two management persons.” Ms. Lee was reinstated and Ms. Davis was disciplined (terminated). Mr. Richard noted that Ms. Davis had been an asset to the City and that he was shocked to learn of her actions. However, |7he stated that he determined termination was appropriate given that the attack was unprovoked by Ms. Lee. Mr. Richard explained that the decision to terminate her was made because this type of behavior was unacceptable. Mr. Richard stated that he did not want Ms. Davis back at NORD. He further stated that he would accept Ms. Davis back at NORD if he had to do so, but her abilities as a leader were tarnished. Mr. Richard noted that a physical altercation affects the efficiency of the operation by tarnishing the reputation of the leadership and in the way it affects morale.

After reviewing the transcript and evidence, the CSC issued a decision denying Ms. Davis’ appeal and thus upholding her termination. The CSC provided the following reasons for its decision:

The Appellant lost her temper and struck another employee with enough force to cause serious physical harm. While the Appellant may have felt provoked, her actions were not justified and her claim of self-defense is not credible. Ms. Lee never struck her and, given the Appellant’s superior size and strength, her assertion that she considered Ms. Lee a threat carries little weight. Moreover, the Appellant admitted in open court that she was guilty of the crime for which she was convicted. Finally, we agree with the Appointing Authority’s conclusion that the offense was serious enough to justify termination notwithstanding the Appellant’s otherwise clean employment record.

Thus, the CSC denied Ms. Davis’ appeal and upheld her termination. This appeal followed.

DISCUSSION

At the outset, we note that NORD raises a procedural objection to Ms. Davis’ appeal. NORD points out that Ms. Davis failed to comply with Uniform Rules of Louisiana Courts of Appeal, Rule 3-1.1, which provides:

Every application for appeal from a final decision of any administrative body shall be filed with the appropriate administrative body in writing as required by law and shall include an assignment of Rerrors, which shall set out separately and particularly each error asserted and a designation of the portions of the record desired to be incorporated into the transcript.

NORD thus contends that Ms. Davis’ entire appeal should be dismissed as untimely. In support, NORD cites IT Corp. v. Commission on Ethics for Public Employees, 464 So.2d 284, 292 (La.1985), which held that the failure to assert an assignment of error in the notice of appeal precluded the appellant from making that argument on appeal.

Although Uniform Rule 3-1.1 fails to provide a penalty for its violation, “[a]n assignment of error is not necessary in any appeal.” La.C.C.P. art. 2129. The Louisiana Constitution provides that the appellate jurisdiction of a court of appeal in civil matters extends to law and facts. La. Const, art. 5, § 10(A) and (B). Further, another uniform rule provides:

The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications of error, unless the interest of justice clearly requires otherwise.

Uniform Rules of Louisiana Courts of Appeal, Rule 1-3. Based on the above constitutional and codal authority, the Louisiana Supreme Court has held that an appellate court has the authority to consider an issue despite the lack of an assignment of error. Wooley v. Lucksinger, 09-0571, 09-0584-0586, p. 68 (La.4/1/11), 61 So.3d 507, 563 (citing Nicholas v. Allstate Ins. Co., 99-2522, pp. 7-8 (La.8/31/00), 765 So.2d 1017, 1023). In this case, NORD terminated Ms. Davis from her employment. The interest of justice requires that this court address her assignments of error. See also Regis v. Department of Police, 12-1043, p. 9 (La.App. 4 Cir. 12/12/12), 107 So.3d 790, 799, n. 4, 2012 WL 6218195 (rejecting a similar argument).

|nThe governing standards that apply in this case are well-settled. Enumerating those standards, this court in Regis, 12-1043 at pp. 2-4, 107 So.3d at 790 (citing Harris v. Department of Fire, 08-0514, pp. 10-11 (La.App. 4 Cir. 7/16/08), 990 So.2d 54, 61-62), recently noted:

• An employer cannot subject a permanent classified civil service employee to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A); Walters v. Dep’t of Police, 454 So.2d 106, 112 (La.1984).
• Cause for discipline of an employee exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).
• “The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause.” Whitaker v. New Orleans Police Dep’t, 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575.
• The employee may appeal from such a disciplinary action to the Commission. On appeal, the Commission has a duty to decide independently from the facts presented whether the appointing authority had good and lawful cause for taking the disciplinary action and, if so, whether the punishment imposed was commensurate with the infraction. Walters, 454 So.2d at 113.
• “The authority to reduce a penalty can only be exercised if there is insufficient cause.” Whitaker, 03-0512 at p. 4, 863 So.2d at 575 (citing Branighan v. Dep’t of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978)). Further, a legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. Branighan, 362 So.2d at 1221. The Commission may not merely substitute its judgment for the appointing authority’s judgment. Whitaker, 03-0512 at p. 5, 863 So.2d at 576.
• On appeal, the standard of review is established by the constitutional rule that the Commission’s decision is subject to review on any question of law or fact. La. Const, art. X, § 12. A multifaceted standard of appellate review applies. First, as in other civil matters, deference must be given to the Commission’s factual findings, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the | mCommission’s decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister, 95-404 at p. 8, 666 So.2d at 647. Arbitrary or capricious means there is no rational basis for the action taken by the Commission. Id.

Id.; Williams v. Department of Police, 08-0465, pp. 6-7 (La.App. 4 Cir. 10/22/08), 996 So.2d 1142, 1145-46 (citing Harris, supra); Bankston v. Department of Fire, 09-1016, p. 7 (La.App. 4 Cir. 11/18/09), 26 So.3d 815, 821-22 (citing Williams, supra (citing Harris, supra)).

Ms. Davis’ first assignment of error is that the CSC’s decision was arbitrary, capricious, or an abuse of discretion. She contends that although the CSC found all the witnesses credible, it did not believe that she had the right to defend herself. Ms. Davis points out that several witnesses testified that Ms. Lee bumped into her several times before Ms. Davis punched Ms. Lee. She contends that this evidence regarding the bumping initiated by Ms. Lee justified her striking Ms. Lee to defend herself against this repeated battery on her person. She submits that she was not the aggressor; rather, she was defending herself from Ms. Lee.

The CSC concluded that Ms. Ganheart’s testimony corroborated Ms. Lee’s testimony. Both Ms. Lee and Ms. Ganheart testified that Ms. Davis punched Ms. Lee without any provocation on the part of Ms. Lee. Mr. Brown testified that Ms. Lee bumped into Ms. Davis three times. On the other hand, Ms. Davis testified that Ms. Lee pushed her once and then Ms. Davis punched Ms. Lee. Furthermore, Ms. Ganheart gave a statement to both the police and NORD. Although Mr. Brown was aware that the police and NORD were questioning the incident, Mr. Brown did not volunteer to provide a statement to either the police or NORD. Indeed, Mr. Brown did not provide a statement until Ms. Davis asked for a statement.

In Where there is conflicting testimony, credibility evaluations cannot be disturbed on review. Williams v. Sewerage & Water Bd., 04-0025, p. 7 (La.App. 4 Cir. 5/19/04), 876 So.2d 117, 121 (citing Moore v. New Orleans Police Dep’t, 01-0174, p. 8 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511). Unless clearly contrary to the evidence, credibility determinations are within the discretion of the trier of fact and will not be disturbed by the reviewing court. State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369 (citing State v. Vessell, 450 So.2d 938, 943 (La.1984)).

As the trier of fact, the CSC possessed the discretion to make credibility determinations. Contrary to Ms. Davis’ contention, the CSC did not state that Ms. Davis did not have the right to defend herself. Rather, the CSC determined that Ms. Davis’ claim of self-defense was not credible. The evidence is not clearly contrary to the CSC’s finding. Considering the variations between Ms. Davis’ and Mr. Brown’s testimony coupled with the corroboration between Ms. Lee’s and Ms. Ganheart’s testimony, there is a rational basis for the CSC’s finding. This assignment of error is not persuasive.

Ms. Davis next assignment of error is that the CSC erred in accepting a plea of nolo contendere as an admission of guilt. Generally, a plea of nolo contendere is not admissible in a civil case. La. C.E. art. 410(A)(2). At the hearing, Ms. Davis identified the citation that she received as a result of the altercation on December 2, 2010, and the chronology report from the New Orleans Municipal | ¶ ¡¡Court case. Ms. Davis’ counsel failed to object to the introduction of these documents or to any testimony regarding the New Orleans Municipal Court case. Failure to object to the introduction of evidence constitutes a waiver of the right to object to the introduction of evidence on appeal. LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App. 3rd Cir.l990)(noting that “[t]o preserve an evi-dentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony, and state the reasons for the objection”); see also Vestal v. Kirkland, 11-0419, 11-0420, 11-0421 (La.App. 3 Cir. 11/23/11), 81 So.3d 748; Ewing v. State ex rel. Dep’t of Transp. and Dev., 99-1556 (La.App. 3 Cir. 3/15/00), 757 So.2d 843; Himel v. State ex rel. Dep’t of Transp. and Dev., 04-0274 (La.App. 5 Cir. 10/12/04), 887 So.2d 131. This assignment of error is thus unpersuasive.

Ms. Davis’ third and final assignment of error is that the CSC erred in finding that the punishment was commensurate with the offense. In support, Ms. Davis points out that she presented testimony of her good character, including a character witness, and testified that she had never been disciplined before in her NORD employment. In further support of her argument that the punishment was not commensurate with the offense, Ms. Davis cited an unpublished decision of this court. Daggs v. Dep’t of Police, 08-0918 (La.App. 4 Cir. 11/12/08), 2008 WL 8921978(unpub.). In that case, the CSC determined that Officer Daggs caused an altercation with a co-worker. Daggs, 08-0918 at p. 5. The CSC denied the appeal, upholding an eight-day suspension (three days of the suspension were for violating instructions from authoritative sources and five days were for violating internal rules regarding professionalism). Finding that the CSC was not manifestly erroneous in finding h.othat Officer Daggs caused the altercation and upholding the suspension, this court affirmed. Daggs, 08-0918 at p. 6.

In contrast to the Daggs case, this court in Williams v. Sewerage & Water Bd., 04-0025 (La.App. 4 Cir. 5/19/04), 876 So.2d 117, affirmed the CSC’s decision upholding the termination of an employee for engaging in a physical altercation with a coworker. Similar to the instant case, the testimony in Williams conflicted as to whether the co-worker or the terminated employee caused the altercation. This court found that the CSC made credibility determinations and affirmed the decision of the CSC denying Mr. Williams’ appeal of his termination. Williams, 04-0025, p. 9, 876 So.2d at 122.

In the instant case, the CSC determined that Ms. Davis’ attack on Ms. Lee was unprovoked and that it resulted in serious physical harm. Ms. Davis argued that a swollen lip and some “eggs” are not serious physical harm. She further argued that there was no medical evidence to support Ms. Lee’s claims of personal injury. However, Ms. Davis acknowledged paying restitution in the amount of $552 — the amount of Ms. Lee’s medical bills — as part of the sentence she received in municipal court.

The CSC further determined that the offense was serious enough to warrant termination in spite of Ms. Davis’ otherwise unblemished employment record. Given the circumstances of this case, we cannot conclude that the discipline imposed was not commensurate with the offense.

DECREE

For the foregoing reasons, the decision of the CSC is affirmed.

AFFIRMED

      . As the CSC pointed out in its decision, "[t]he primary distinction between annual leave and sick leave is that upon separation of employment any accrued annual leave is paid to a City employee in full, while accrued sick leave is paid in part.”

      . Ms. Davis indicated that she was unaware that she could have asked to have charges pressed against Ms. Lee.

      . La. C.E. art. 410(A)(2) provides:
      A. General rule. Except as otherwise provided in this Article, evidence of the following is not, in any civil or criminal proceeding, admissible against the party who made the plea or was a participant in the plea discussions:

      (2) In a civil case, a plea of nolo contende-re.


author: EDWIN A. LOMBARD, Judge. LOVE, J.,

text:
    STATE of Louisiana v. Sherman REED.
    No. 2012-KA-0578.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.

      (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

| tPursuant to State v. Crosby, 838 So.2d 584 (La.1976), the defendant, Sherman Reed, appeals his conviction and sentence for possession with the intent to distribute hydrocodone, asserting that the trial court erred in denying his motion to suppress. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Procedural History

A prescription bottle containing hydro-codone was seized from the floor board on the front passenger’s side of the defendant’s vehicle after he was stopped for a traffic violation. He was charged by bill of information with distribution of hydroco-done in violation of La. Rev.Stat. 40:967(A) and, after the trial court denied his motion to suppress , entered a Crosby plea. The court sentenced him to serve two years at hard labor, then suspended the sentence and placed the defendant on two years active probation. The court also imposed fines and fees of $500 to the Judicial Expense Fund and $191.50 in court costs.

| ^Standard of Review

When the legality of evidence seized without a warrant is put at issue by a motion to suppress, the State bears the burden of proving admissibility, La.Code Crim. Proc. art. 703(D), and we review that ruling under the abuse of discretion standard. See State v. Wells, 2008-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580.

Applicable Law

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. Police may make “an investigatory stop only if it is based upon a reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal activity.” State v. Dobard, 01-2629, p. 2 (La.6/21/02), 824 So.2d 1127, 1129 (emphasis added); see also La.Code Crim. Proc. art. 215.1 (a police officer “may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense). Generally, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). The standard for a traffic stop is “a purely objective one” that does not require an inquiry into “the subjective beliefs or expectations of the detaining officer.” State v. Waters, 00-0356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056 (citing Whren, 517 U.S. at 813, 116 S.Ct. 1769). Although traffic violations may serve and “often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.” Waters, supra (citations omitted). It is axiomatic that “if a vehicle is readily mobile, there is no difference between seizing the car while obtaining a search warrant and immediately searching the vehicle without a warrant.” Waters, supra (citing State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330). Accordingly, if there is probable cause to search and the vehicle is readily mobile, even if stationary at the time the search proceeded, any evidence will be considered constitutionally seized. See Waters, supra (citing Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) and State v. Anderson, 2006-1031 (La.App. 4 Cir. 1/17/07), 949 So.2d 544).

Probable cause means “a fair probability that contraband ... will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Whether probable cause exists must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Fisher, 97-1133, p. 8 (La.9/9/98), 720 So.2d 1179, 1184 (citing State v. Raheem, 464 So.2d 293, 296 (La.1985)).

Relevant Facts

The following evidence was adduced at the hearing on the defendant’s motion to suppress. The sole witness, Detective Leonard Standeford of the New Orleans Police Department (NOPD), testified that on September 7, 2010, he was working in the Sixth District with his partner, Officer Virgil Landry, when they observed the defendant’s vehicle stopped in the middle of First Street, a one-way street, near its intersection with Prieur Street. The defendant, in the driver’s seat, |4was speaking with a male who was standing outside of his car. Because the defendant’s car was blocking the lane of traffic, Officer Landry (who was driving the marked police car) activated the overhead lights and the siren in order to cite the defendant for the traffic violation. The defendant immediately placed his vehicle into park, exited the car, and approached the police officers to speak with them.

After the officers advised the defendant of the reason for the stop, they asked him for his driver’s license and the paperwork for the vehicle. The defendant produced his driver’s license and indicated that the vehicle registration and insurance papers were in the vehicle. Accordingly, the defendant returned to his vehicle to retrieve the paperwork. Detective Standeford followed him and, as the defendant leaned into the vehicle from the driver’s side, situated himself to observe both the defendant and the glove compartment to insure that the defendant did not retrieve a weapon in the act of obtaining the vehicle documents. Thus, Detective Standeford observed the defendant reach into his pocket with his left hand and pull out a bottle of pills which he dropped onto the front passenger-side floorboard. Because the defendant’s actions appeared suspicious, Detective Standeford ordered the defendant out of the vehicle. Officer Landry detained the defendant at the rear of the defendant’s car while Detective Standeford retrieved the pill bottle from the floorboard. He discovered that the bottle contained fifty hydrocodone pills and bore a prescription label with the name Leon Andrews. The defendant volunteered that the bottle belonged to his uncle, who he said must have left it in the car.

Accordingly, based on the discovery of the pill bottle, the officers arrested the defendant for possession of hydrocodone. Officer Landry advised the defendant of his rights, which the defendant acknowledged that he understood, and | ¡¡placed him into the police car. The officers then drove the defendant to the Sixth District station to complete paperwork and the booking process. At the station, Officer Landry again asked the defendant about the pills. The defendant said that “he was going to come clean, and that he was selling the pills for his friend, Leon Andrews.”

On cross-examination, Detective Stande-ford conceded that he did not have prior knowledge of the defendant or observe any suspicious transactions between the defendant and the man standing next to his car. Detective Standeford also acknowledged that the defendant appeared cooperative when the officers stopped him and that he could not see the name on the discarded pill bottle or ascertain its contents when he saw it on the floorboard.

Discussion

In his sole assignment of error, the defendant asserts that the trial court erred when it denied his motion to suppress the evidence and that his statements must be suppressed as tainted fruit of the alleged illegal seizure of the physical evidence and ensuing arrest. He argues that the bottle could not be lawfully seized because it was not, without closer inspection, immediately apparent to be contraband. Further, he argues that the police officers lacked probable cause to search his vehicle or to arrest him prior to seizing the pill bottle from his car.

It is undisputed that the defendant was stopped for a traffic violation and, thus, the initial stop was clearly reasonable. Upon the defendant’s return to his vehicle for the purported purpose of retrieving his registration documents, it was not unreasonable or an intrusion into the defendant’s expectations of privacy for Detective Standeford to position himself so as to observe the defendant’s movements and insure his own and his partner’s safety. Thus, the detective was in |fia position to see the defendant, under the guise of reaching into the glove compartment, surreptitiously withdraw the pill bottle from his pants pocket and drop it on the floorboard of the vehicle.

Evasive behavior, although not necessarily indicative of wrongdoing, is certainly suggestive of such and, accordingly, is a “pertinent factor in determining reasonable suspicion.” State v. Morgan, 09-2352, p. 5 (La.3/15/11), 59 So.3d 403, 406 (citing U.S. v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); U.S. v. Sokolow, 490 U.S. 1, 8-9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Moreover, the U.S. Supreme Court has explicitly cautioned that, in reviewing the propriety of an officer’s conduct, “the determination of reasonable suspicion must be based on commonsense judgments and inferences of human behavior” because “courts do not have available empirical studies dealing with inferences drawn from suspicious behavior” and, therefore, reviewing courts “cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citations omitted).

Accordingly, we conclude that Detective Standeford was justified in suspecting that the defendant was involved in criminal activity when he saw him drop the pill bottle surreptitiously on the floorboard and, therefore, investigating further. Furthermore, exigent circumstances arising from the detention of the vehicle on the open road excuse the lack of a warrant. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996); see also State v. Tatum, 466 So.2d 29, 31 (La.1985).

Conclusion

After review of the record in light of the applicable law and argument of the parties, we do not find that the trial court abused its discretion in denying the |7defendant’s motion to suppress. Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons.

|,I respectfully dissent from the majority. Mr. Reed accessed his glove compartment to retrieve the necessary documents following a traffic stop and allegedly reached into his pocket and pulled out a bottle of pills, which landed on the floorboard of the vehicle. Mr. Reed contends that the pill bottle, without closer inspection, was not immediately apparent as contraband. I agree.

The testimony fails to show that there were facts articulated by Detective Standeford that the area was a high crime area in which narcotics trafficking is common, which would suggest that the pill bottle was evidence of a crime. Detective Standeford denied that he or his partner observed any activity or interaction between Mr. Reed and the unknown man to whom he was speaking, which would possibly indicate that the men were engaged in any drug activity. There was no testimony to indicate that the unknown man fled the scene or acted in a furtive, startled, or suspicious manner when the police activated the lights and siren on the police car.

The New Orleans Police Department officers (“NOPD”) were not conducting a narcotics investigation, and the testimony was unequivocal that the NOPD saw nothing to indicate that Mr. Reed was engaged in narcotics activity prior to the legal traffic stop. Thus, while Detective Standeford found Mr. Reed’s 12action in dropping the bottle of pills onto the floor of the vehicle odd and possibly suspicious, in order to seize the bottle, Detective Standeford needed probable cause to believe it was contraband or evidence of a crime, nor merely reasonable suspicion. See Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987).

The trial court erred in its legal analysis, as there cannot be probable cause to believe that the bottle contained contraband unless it was immediately apparent without closer inspection. Furthermore, the State failed to establish that Detective Standeford had probable cause to believe that the bottle or its contents were contraband without seizing the bottle and subjecting it to further inspection. Accordingly, I find that the trial court committed manifest error in denying Mr. Reed’s motion to suppress and would vacate Mr. Reed’s guilty plea and sentence.

      . The defendant also entered his plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . The defendant initially sought review of that ruling on application for supervisory writ but this Court declined to exercise its supervisory jurisdiction, stating that the defendant had an adequate remedy on appeal. State v. Reed, unpub., 2010-1687 (1/18/11), writ denied 2011-0211 (La.3/25/11), 61 So.3d 670.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Craig FERDINAND.
    No. 2012-KA-0283.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Straehan, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

1 jThe defendant, Craig Ferdinand, was charged with first degree robbery, a violation of La. R.S. 14:64.1, and pled not guilty. Following a trial, the jury returned a responsive verdict of guilty of simple robbery, a violation of La. R.S. 14:65. Ferdinand filed a motion for new trial, which the trial court denied on January 13, 2010. On the same date, the trial court sentenced Ferdinand to three years at hard labor in the custody of the Department of Corrections.

The State filed a multiple bill alleging that Ferdinand was a second felony offender. After Ferdinand pled guilty to the multiple bill, the trial court vacated the original sentence and sentenced him to serve five years at hard labor in the custody of the Department of Corrections. Ferdinand appealed his conviction and sentence.

Robert Bowman testified that on March 14, 2009, he, his cousin, Billy Chedville, and his friend, Billy Arabie, traveled to New Orleans from Hammond, Louisiana. Bowman had received an income tax refund of eighteen hundred dollars, and he wanted to treat Chedville and Arabie to a night on the town in the French Quarter.

|2The group left Hammond after work and drove straight to Bourbon Street. They spent the next several hours drinking and socializing at several bars. Sometime after midnight, Bowman and Arabie lost track of Chedville. He later learned that his cousin had been arrested for public drunkenness. While looking for Ched-ville, Bowman and Arabie became lost and could not find their car.

Bowman testified that he was walking down Bourbon Street and talking on his telephone when felt someone pressing something hard into his back. The subject, later identified as Ferdinand, told him to give him all of his money. Bowman then felt Ferdinand reaching for his wallet. Bowman yelled, “Hey.” Before he could say anything else, Bowman was struck on the head and fell to the ground. Ferdinand then took off running with Bowman’s wallet.

Bowman gave chase. Ferdinand turned several corners and threw the wallet down as he ran. Bowman retrieved his wallet and continued to follow Ferdinand until he saw him enter a bar. Bowman followed him inside, where a verbal exchange between the two ensued, and then a bouncer made them leave.

At this point, one or more police officers were standing in the street outside the bar. Ferdinand began walking away. Bowman tried to grab him and called to the police at the same time. Ferdinand told the officers that he had just gotten off work and had never seen Bowman before.

Bowman told the officers that Ferdinand had taken one thousand five hundred dollars from him. The officers then searched Ferdinand and recovered that amount of U.S. currency.

Bowman identified several photos of himself taken that night by the police. He also acknowledged that he had a conviction for simple assault.

|3Sergeant Jimmie Turner testified that on the night in question he was patrolling in the 300 block of Bourbon Street when he observed Ferdinand approaching from his left at something less than a full run. Ferdinand then entered a nearby daiquiri shop. A short time later, Bowman approached from the same direction. He was staggering, appeared to be injured, and was bleeding from the eye. Bowman then entered the same establishment.

A short time later, Sergeant Turner’s attention was focused on the same establishment after he heard a commotion. Ferdinand and Bowman were engaged in a verbal altercation. As he neared, he heard Bowman say, “Give me my f — in’ money. Give me my money back.” As Sergeant Turner began to intervene, Bowman stated, “He took my money. Give me my money. He took my money.”

Sergeant Turner conducted an initial investigation by asking each of the individuals what had happened. Ferdinand related that he had no idea what Bowman was talking about. He stated that he had never seen Bowman before and that he had just left work. On the other hand, Bowman stated that Ferdinand had taken one thousand five hundred dollars which should be in his possession. Sergeant Turner asked Ferdinand how much money he had in his possession and he said that he had approximately one thousand dollars. Sergeant Turner continued to question Ferdinand regarding his whereabouts that evening and why he had one thousand dollars on his person. Ferdinand then remembered that he had also been at the casino.

Sergeant Turner acknowledged that he smelled alcohol on Bowman’s breath and none on Ferdinand’s breath. Bowman did not state anything about having recovered his wallet. Also, he recalled that Bowman was not overly concerned |4with retrieving his wallet. He recalled that he said something to the effect that he could always get another I.D.

At this point, Sergeant Turner, with the assistance of Officer Ball, placed Ferdinand under arrest. Sergeant Turner then issued Miranda warnings. Later, Sergeant Turner asked Ferdinand how he got blood on his shirt and he responded that he was attacked by Bowman and his friend.

Officer John Ball testified that he accompanied Ferdinand back to the Eighth District Station after he was placed under arrest. Once there, he sat Ferdinand down and asked him what had happened. Ferdinand stated that he was jumped by two white males and that they tried to take his money.

Officer Ball asked Ferdinand if there were any more details, and he stated, “They jumped me. You could search me. I don’t have anything on me.”

Officer Ball searched Ferdinand and recovered one thousand five hundred and six dollars. Officer Ball stated that Ferdinand was dressed in a white shirt and a white apron and that both had blood spatter on them. He identified the clothing in court, as well as a cell phone that was recovered from Ferdinand. He also identified photographs of Bowman and the money that was recovered.

Ferdinand testified on his own behalf. He stated that during the early morning hours of the night in question he was at work at the Café Du Monde and was outside the restaurant on a break when he met Bowman. He stated that Bowman and Arabie approached him and engaged him in some idle chatter. He stated that they were quite friendly. Bowman then asked him whether he could get them some “party supplies.” Ferdinand asked Bowman if he wanted crack and he said no, that he wanted powder.

^Ferdinand told him that he could call someone for him, and asked him how much cocaine he wanted. Bowman replied that he wanted a large quantity, twenty-eight grams.

Ferdinand called an associate who said that he could supply the drugs. Ferdinand instructed Bowman and Arabie to meet him in front of the restaurant when he got off work, and they did. They walked to a bar called the Copper Monkey were the associate had told Ferdinand to meet him. They waited at the bar for approximately an hour for the associate to arrive. Ferdinand then completed the transaction and retrieved the cocaine. He stated that he paid the associate seven hundred and fifty dollars for the cocaine.

Afterwards, he showed Bowman the cocaine. After tasting it, Bowman relinquished fifteen hundred dollars, the agreed upon price. Bowman and Arabie then began examining the cocaine as Ferdinand walked away. Bowman then walked up to him stating that he wanted his money back. Ferdinand declined, saying it was a “done deal.” Bowman began to fight with him, and soon Arabie joined in. Ferdinand took off running.

Ferdinand stated that he entered the daiquiri shop and went into the restroom to see if he was injured. Bowman followed him into the restroom and began harassing him, saying that he wanted his money back.

On Ferdinand’s way out of the bar, Sergeant Turner saw the two men were engaged in a verbal altercation and became involved in the situation. Sergeant Turner didn’t ask Ferdinand anything and just placed him in handcuffs. Ferdinand claimed he never told the officers about the drug deal because he did not want to be arrested for selling drugs.

| fiFinally, Ferdinand admitted he had six misdemeanor convictions as well as two felony convictions for possession of cocaine and forgery.

A review of the record for errors patent reveals none.

In his second assignment of error, Ferdinand contends that the evidence adduced at trial is insufficient to sustain the verdict. When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731 (La.1992).

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). 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, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79. Under the Jackson standard, the rational credibility 17determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293.

When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of credibility of the witness, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078. The trier of fact determines the weight to be given the evidence presented. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Helou, 2002-2302, p. 5 (La.10/23/03), 857 So.2d 1024, 1027.

A fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-74. 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. See State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

In order to prove the crime of simple robbery, the State must prove beyond a reasonable doubt that the defendant acted in accordance with the circumstances identified in La. R.S. 14:65, i.e., “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” State ex rel. T.T., 2009-1201, p. 2 (La.App. 4 Cir. 1/13/10), 30 So.3d 220, 221.

Ferdinand argues that little of Bowman’s story makes sense. He notes that even though Bowman was using his telephone at the time of the robbery, he failed to call 911 or attempt to alert any of the numerous police officers who were 1 ^patrolling the area. However, it is extremely difficult to fault the instinctual split second decision to give chase rather than to stay put and call 911. Bowman was undoubtedly concerned that if he lost eye contact with his robber he would never be apprehended and that he would never recover his money.

Ferdinand also suggests that Bowman’s initial statement to the police that he (Ferdinand) “took my money” established that no robbery was committed. Ferdinand points to the fact that Bowman did not tell the police that he had been robbed and he suggests that Bowman’s statement supports Ferdinand’s testimony, that the money was exchanged during the course of a drug deal. Ferdinand suggests that it was only later, after given time to reflect, that Bowman concocted the story that a robbery occurred.

The fact that Bowman failed to describe the events under the applicable legal definition of the crime which describes Ferdinand’s conduct is not significant. Bowman’s foremost concern was that Ferdinand was in possession of a considerable amount of his money and that he was willing to confront him alone, if necessary, to retrieve it. Furthermore, the sum of Bowman’s statements at the scene conveyed the sense that a forceful taking had occurred and that he had been robbed. Bowman was injured and bleeding from the eye and Ferdinand’s shirt and apron were stained with blood.

Ferdinand contends that the case is very similar to State v. Mussall, where the defendant’s conviction was reversed. In Mussall, the Louisiana Supreme Court affirmed the appellate court’s finding that no reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Mussall, 523 So.2d at 1311. The eyewitness in Mussall was Ray Siebenkit-tel, who testified that he received a phone call at work from the defendant, Edward Mussall, who he had |9met once briefly a few years prior, and who tried to interest Siebenkittel in purchasing or investing in a boat.

Siebenkittel testified that he agreed to look at the boat after receiving repeated calls from Mussall over the next few weeks. “Although Siebenkittel said he had not seen the boat and did not know where it was located or who owned it, he testified that he liquidated his entire savings of $4,000, which he saved while working at minimum wage and living at home, and borrowed $2,000 from his sister at 18½% interest.” Mussall, 523 So.2d at 1311. Siebenkittel testified that he proceeded to drive to meet Mussall in the 700 block of Governor Nichols Street with $6,000.00 cash in an envelope at 8:00 p.m. on February 25, 1983. Id. at 1306-1307. According to Siebenkittel, as he and Mus-sall walked along Governor Nichols Street, Mussall pulled a handgun and robbed him of the $6,000.00.

After the alleged robbery, Siebenkittel testified that he drove to the First District Police Station, reported the crime approximately ten to twelve minutes later, and provided Mussall’s name, telephone number, and physical description to the police. On March 17, 1983, Siebenkittel identified Mussall from a photographic lineup, and a bulletin was issued for Mussall’s arrest.

The Louisiana Supreme Court noted that the State did not introduce any evidence to corroborate Siebenkittel’s testimony, and that “[t]here was no other witness to the robbery itself or to any fact in Siebenkittel’s version of his prior contact with Mussall.” Id. at 1307. Additionally, “[t]here was no corroboration of Siebenkit-tel’s withdrawal or liquidation of $4,000 savings or of a $2,000 loan from his sister at 18½% interest.” Id. Likewise, the State did not introduce the handgun, the cash, the envelope, “or any evidence that Mussall had ever possessed any of them.” Id.

ImMussall testified in his own defense, asserting that Siebenkittel fabricated the robbery story out of a desire for revenge from a failed drug deal with Siebenkittel and Jim W. Pace, Nicholas G. Felton, and Henry Canniglio, Jr. According to Mus-sall, Pace, Felton, and Canniglio fabricated a civil claim that Mussall had defaulted on a contract with them to sell shrimp and sought recovery of $45,000 for their investment in the venture, and Siebenkittel sued Mussall to recover $6,000 for the cash taken in the robbery and $100,000 in damages.

Mussall introduced documentary evidence of the two lawsuits filed against him, which were both filed on April 29, 1983, by the same New Orleans attorney; notably, “both petitions were verified in that attorney’s office on that day by the respective plaintiffs, and both suits were served that same day on the defendant at central lockup where he was being held on the armed robbery charge.” Id. at 1307. Siebenkit-tel insisted that he had never met Pace, Felton or Canniglio, and that he was unaware that they had filed a lawsuit against Mussall on the same day with the same attorney.

The Louisiana Supreme Court found that “in this particular case even a reasonably pro-prosecution rational trier of fact is driven to have a reasonable doubt by the numerous eccentricities, unusual coincidences and lack of corroboration,” concluding that the uncorroborated story was too far-fetched and would have created a reasonable doubt in the mind of a rational fact finder. Id. at 1311-12.

Likewise, Ferdinand argues that numerous eccentricities of Bowman’s testimony created a tale that no rational fact finder could have believed.

However, in State in the Interest of C.D., 2011-1701 (La.7/2/12), 93 So.3d 1272, the Louisiana Supreme Court recently emphasized just how unusual the fact Inpattern in Mussall was, stating that “Mussall stands as the single, sui generis, exception to that rule in this Court’s jurisprudence [that eyewitness testimony alone is usually sufficient], and it is distinguished by its truly bizarre facts.” Id. at p. 6, 93 So.3d at 1276.

The facts of this case present nothing of the order presented in Mussall. Here, although Bowman and Ferdinand presented two completely different versions of the events, the surrounding facts of the case cannot be credited as truly bizarre. The determination of whose testimony was worthy of belief is clearly within the province of the jury. This Court should not impinge on that determination. Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all of the essential elements of the crime of simple robbery were satisfied beyond a reasonable doubt.

Ferdinand argues that by providing late notice of Bowman’s conviction for simple assault the State withheld evidence favorable to him in violation of the rule established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962). Ferdinand argues further that the late notice further deprived him of his Sixth Amendment right to present a defense and to confront the witness against him and impeach his credibility.

As noted previously, during Bowman’s testimony, the prosecutor asked him whether he had ever been convicted of a crime, and he replied that he had been convicted of simple assault, approximately one or two years before. Ferdinand then moved for a mistrial. He relayed that the night before trial he was provided with Bowman’s rap sheet which did not reflect any previous convictions. The 112prosecutor stated that he was not aware of Bowman’s conviction and because his rap sheet showed no previous convictions he believed that was the ease. The prosecutor noted that as a precaution, prior to Bowman taking the stand, he asked him whether he had any convictions, which is when he first learned of Bowman’s assault conviction.

Ferdinand suggested that a mistrial was appropriate because he would have tailored his jury selection differently as well his cross examination preparation. He further suggested that his fundamental right to confront and cross examine his accuser was prejudiced.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” See also, La.C.Cr.P. Art. 718.

Evidence is material, and hence discoverable, if there is a “reasonable probability” that the outcome of the trial would have been different had the evidence been disclosed to the defense. U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

A defendant’s right to production of arrest and conviction records of state witnesses for impeachment purposes which satisfy Brady’s materiality standard is well recognized. See State v. Bowie, 2000-3344 (La.04/03/02), 813 So.2d 377.

We find no merit to Ferdinand’s first assignment of error. The record reflects that Bowman’s previous conviction was established at trial, and he was confronted with it; the jury was able to use the fact of Bowman’s conviction in weighing his testimony. In denying the motion for mistrial, the trial court noted as much, stating, “you still have the opportunity right now on cross-examination to | ]Sask this gentleman [Bowman] any and every question that you wish to ask him about his conviction.”

Furthermore, Ferdinand has not demonstrated that either his ability to prepare for trial or his actual defense was diminished by the late disclosure of Bowman’s criminal record.

For the reasons stated above, we affirm Ferdinand’s conviction and sentence.

AFFIRMED

      . The denial of Ferdinand's motion for new trial occurred immediately prior to his initial sentencing on January 13, 2010, contrary to the requirement imposed by La.C.Cr.P. art. 873 that there be a twenty-four delay from the denial of a motion for new trial and sentencing (unless the defendant waives such delay). However, because Ferdinand’s original sentence was subsequently vacated, the error is moot.

      . On the morning of trial, Ferdinand also filed a bill of particulars specifically requesting information as to Bowman's convictions, if any.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Richard VITAL.
    No. 12-881.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendani/Appel-lant, Richard Vital.
    Michael Cade Cassidy, District Attorney, Thirty-first Judicial District, Jennings, LA, for Appellee, State of Louisiana.
    Richard Vital, Jackson, LA, Pro Se.
   ORDER

| j After consideration of appellate defense counsel’s request to withdraw as counsel of record and the appeal presently pending in the above-captioned matter,

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

GENOVESE, Judge.

Lin this criminal case, Defendant, Richard Vital, was charged with distribution of cocaine, a violation of La.R.S. 40:967(A)(1), on May 4, 2010. Defendant originally entered a plea of not guilty, but he changed his plea to guilty on June 17, 2011. The trial court then sentenced Defendant to ten years with the Department of Corrections with the first two years to be served without benefit of parole, probation, or suspension of sentence, with credit for time served, and with the sentence to run concurrently with his forcible rape sentence.

Defendant filed a motion to reconsider his sentence, which was denied. Defendant then filed an application for post-conviction relief (PCR), seeking an out-of-time appeal on October 17, 2011. The application for PCR alleged that Defendant’s plea was not voluntarily or knowingly made and that he did not plead guilty, even though he “admitted certain criminal activity.” The trial court granted the application for PCR, and Defendant was allowed to appeal.

Defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no non-frivolous issues existing upon which to base an appeal; she has also filed a motion to withdraw as Defendant’s appellate counsel. Defendant, pro se, has filed a brief. We affirm Defendant’s conviction and sentence, and we grant Defendant’s appellate counsel’s motion to withdraw as counsel of record.

FACTS

At his Boykinization hearing, Defendant admitted he sold crack cocaine to an undercover narcotics agent. Also, in his Plea of Guilty and Waiver of Rights form, Defendant admitted that he was guilty of distributing cocaine.

J^ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENTS OF ERROR

Defendant’s appellate counsel alleges that there are no non-frivolous issues upon 'which to base an appeal and has filed an Anders brief. An Anders analysis will follow the discussion of Defendant’s pro se assignments of error.

DEFENDANT’S PRO SE ASSIGNMENTS OF ERROR:

Because both of Defendant’s pro se assignments of error allege a violation of his constitutional rights, they will be jointly addressed.

1. The Trial Court erred when it failed to individually advise defendant/appellant of his right to a jury trial, his privilege against self-incrimination and his right to confront his accusers. Faulty Boykinization of Appellant.
2. Cumulative Effect of Constitutional errors committed before, during, and after this trial effectuated serious denial of Equal Protection and Due Process Rights guaranteed by both the State of Louisiana and United States Constitution. The Trial Court erred when it failed to individually advise defendant/appellant of his right to a jury trial, his privilege against self-incrimination and his right to confront his accusers.

Defendant contends that his constitutional rights were violated at the plea hearing because the trial court failed to individually advise him of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Those rights were read to him and two other defendants in different cases as a group. The trial court then asked each defendant individually, including Defendant, if he understood his guilty plea and if he waived all those rights. Specifically, the record indicates:

THE COURT: Mr. Vital, do you understand that by pleading guilty today that you’re waiving all of these rights?
IííMR. VITAL: (nods head affirmatively.)
THE COURT: I’m sorry?
MR. VITAL: Yes, sir.

Defendant’s application for PCR did not allege the reading of the Boykin rights to the group was improper. Rather, it contended that his plea was not knowingly and intelligently made because the trial court did not advise him of those rights and because the plea “was not entered by his own mouth, but by the trial court judge.”

The Louisiana Supreme Court addressed the issue of reading Boykin rights to defendants as a group in State v. Richard, 00-659 (La.9/29/00), 769 So.2d 1177. The court stated:

Moreover, even assuming that the defendant’s first pro se assignment of error, broadly construed, encompassed a challenge under La.C.Cr.P. art. 556.1 to the trial court’s use of an en masse Boykin procedure, the validity of any guilty plea “ ‘depends upon the circumstances of each case.’ ” State v. Filer, 00-0073, p. 2 (La.6/30/00), 762 So.2d 1080, 1081 (quoting State v. Strain, 585 So.2d 540, 544, n. 7 (La.1991)). In the present case, as in Filer, those portions of the Boykin colloquy which the trial judge conducted personally and individually with the defendant, ranging from his age, work experience and edu-eation[,] to the nature of the offense and its penalty provisions, the necessity of compliance with the sex offender registration provisions of La.R.S. 15:542 upon conviction, and the extent of the plea bargain with the state, placed the court in a position to determine the knowing and voluntary nature of the defendant’s subsequent waiver of the trial rights the court explained personally but collectively to the several persons entering guilty pleas on the same day. To the extent that it conflicts with the views expressed herein and in Filer, the court of appeal’s decision in State v. Lastrapes, 99-0083 (La.App. 3rd Cir.6/30/99), 743 So.2d 224, is disapproved.

Id. at 1178.

Here, the trial court individually questioned Defendant about his education and lack of physical or mental condition, medication, drugs, or alcohol that might 14prevent his understanding of the proceedings. The trial court verified that Defendant had the opportunity to discuss his “case, the facts, the possible defenses, and the consequences of [his] plea of guilty.” Defendant confirmed that no one had forced, threatened, or coerced him into making his plea. The trial court reviewed the possible sentence with Defendant before accepting his plea. Both Defendant and the State recommended a sentence of ten years with the Department of Corrections, to run concurrently with the sentence he was receiving in another case. Defendant further indicated that he had reviewed and signed the Plea of Guilty and Waiver of Rights form with his attorney. The trial court’s colloquy with Defendant allowed the trial judge to determine the knowing and voluntary nature of Defendant’s waiver of his rights and subsequent guilty plea. Thus, Defendant’s pro se assignments of error lack merit.

ANDERS ANALYSIS:

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the analysis based on Anders, 386 U.S. 738, 87 S.Ct. 1396:

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

While it is not necessary for Defendant’s appellate counsel to “catalog tediously every meritless objection made at trial or by way of pre-trial motions | ¿with a labored explanation of why the objections all lack merit[,]” appellate counsel’s An-ders brief must “assure the court that the indigent defendant’s constitutional rights have not been violated.” State v. Jyles, 96-2669, p. 2 (La.12/12/97), 704 So.2d 241 (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)). Defendant’s appellate counsel must fully discuss and analyze the trial record and consider “whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241. Thus, appellate counsel’s Anders brief must review the procedural history and the evidence presented at trial and provide “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Jyles, 704 So.2d 241, Defendant’s appellate counsel filed a brief citing two potential errors for appeal. First, counsel considered an excessive sentence argument. He determined the sentence imposed was in accordance with the plea agreement; thus, it is not subject to review on appeal. The plea agreement does not indicate that Defendant and the State agreed on his sentence; however, at the plea hearing, Defendant’s appellate counsel included the sentence as part of the plea agreement. Counsel for the State confirmed her agreement. Defendant indicated that he heard and he understood the recommended sentence. The trial court sentenced Defendant according to that recommendation.

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with ha plea agreement which was set forth in the record at the time of the plea.” This court has held, based on this article, “[i]n an instance where the court sentences the defendant in accordance with the parties’ recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded.” State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. Thus, a defendant may not seek review of his sentence “when a specific sentence or sentencing range is agreed to by both parties as part of a plea agreement, and is judicially recognized at the sentencing hearing.” Id. at 39.

Here, Defendant and the State jointly recommended the sentence the trial court imposed. Therefore, Defendant may not seek review of a sentence he recommended to the court and subsequently received. Defendant’s appellate counsel correctly concluded that Defendant cannot make a non-frivolous argument on appeal, alleging an excessive sentence.

Next, counsel considered whether the trial court incorrectly denied Defendant’s motion to reconsider his sentence because he had already begun to serve the sentence. In fact, La.Code Crim.P. art. 881.1(C) allows the trial court to resen-tence a defendant despite the commencement of his sentence when he files a timely motion to reconsider, as Defendant did here. However, the trial judge also noted that Defendant’s “sentence was part of a plea agreement stated for the record”; thus, it was not subject to review. La. Code Crim.P. art. 881.2(A)(2). Defendant’s appellate counsel concluded that neither of these possible issues would offer Defendant relief. Accordingly, appellate counsel seeks to withdraw as counsel of record.

1 ^Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including the pleadings, the minute entries, the charging instrument, and the transcripts, and we have confirmed the statements by Defendant’s appellate counsel. Defendant was present and represented by counsel at all crucial stages of the proceedings, and he acknowledged his guilty plea on the plea form. Contrary to the allegations of Defendant’s pro se assignments of error, the trial court correctly informed Defendant of his Boykin rights and discussed his possible sentence for distribution of cocaine.

DISPOSITION

Our review of the record reveals no issues that would support an assignment of error on appeal beyond the potential issues addressed by counsel and the issues raised in the pro se assignments of error. Therefore, we affirm Defendant’s conviction and sentence and grant Defendant’s appellate counsel’s motion to withdraw as counsel of record on appeal.

CONVICTION AND SENTENCE AFFIRMED.

MOTION TO WITHDRAW GRANTED.

      . Defendant also pled guilty in the same plea agreement to forcible rape, a violation of La. R.S. 14:42.1. That plea is the subject of a separate appeal docketed under number 12-882 of this court.

      . The application for PCR also alleged ineffective assistance of counsel. That issue is not raised on appeal and will not be reviewed pursuant to Uniform Rules — Courts of Appeal, Rule 1-3.

      . Jordan, 716 So.3d 36, cites State v. Watkins, 97-364 (La.App. 3 Cir. 10/8/97), 700 So.2d 1172; State v. Laroux, 93-719 (La.App. 3 Cir. 2/2/94), 631 So.2d 730, writ denied, 94-577 (La.6/3/94), 637 So.2d 498; and State v. Lewis, 633 So.2d 315 (La.App. 1 Cir.1993). However, these cited cases preclude appellate review when sentencing is imposed according to a sentencing cap; they do not address the issue of sentencing imposed according to a jointly recommended sentence.


text:
    STATE of Louisiana v. Richard VITAL.
    No. 12-882.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Richard Vital.
    Michael Cade Cassidy, District Attorney, Thirty-first Judicial District, Jennings, LA, for Appellee, State of Louisiana.
    Richard Vital, Jackson, LA, Pro se.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   ORDER

|!After consideration of appellate defense counsel’s request to withdraw as counsel of record and the appeal presently pending in the above-captioned matter,

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

GENOVESE, Judge.

|, FACTS AND PROCEDURAL HISTORY

In this criminal case, a grand jury indicted Defendant, Richard Vital, on November 23, 2010, with aggravated rape of a female under the age of thirteen, a violation of La.R.S. 14:42(3). Defendant entered a plea of not guilty on December 13, 2010. On June 17, 2011, the State amended the charge to forcible rape, a violation of La.R.S. 14:42.1. Defendant then changed his plea to guilty. The trial court sentenced Defendant to thirty years with the Department of Corrections, with the first two years to be served without benefit of parole, probation, or suspension of sentence, with credit for time served, and with the sentence to run concurrently with his distribution of cocaine sentence.

Defendant filed a motion to reconsider his sentence, which was denied. Defendant then filed an application for post-conviction relief (PCR) seeking an out-of-time appeal on October 17, 2011. The application for PCR alleged that Defendant’s plea was not voluntarily or knowingly made and that he did not plead guilty, even though he “admitted certain criminal activity.” The trial court granted the application for PCR, and Defendant was allowed the appeal on December 15, 2011.

Defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no non-frivolous issues existing upon which to base an appeal; she has also filed a motion to withdraw as Defendant’s appellate counsel. Defendant, pro se, has also |2filed a brief. We affirm Defendant’s conviction and sentence, and we grant Defendant’s appellate counsel’s motion to withdraw as counsel of record.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENTS OF ERROR

Defendant’s appellate counsel alleges that there are no non-frivolous issues upon which to base an appeal and has filed an Anders brief. An Anders analysis will follow the discussion of Defendant’s pro se assignments of error.

DEFENDANT’S PRO SE ASSIGNMENTS OF ERROR:

Because both of Defendant’s pro se assignments of error allege a violation of his constitutional rights, they will be jointly addressed.

1. The Trial Court erred when it failed to individually advise defendant/appellant of his right to a jury trial, his privilege against self-incrimination and his right to confront his accusers. Faulty Boykinization of Appellant.
2. Cumulative Effect of Constitutional errors committed before, during, and after this trial effectuated serious denial of Equal Protection and Due Process Rights guaranteed by both the State of Louisiana and United States Constitution. The Trial Court erred when it failed to individually advise defendant/appellant of his right to a jury trial, his privilege against self-incrimination and his right to confront his accusers.

Defendant contends his constitutional rights were violated at the plea hearing because the trial court failed to individually advise him of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Those rights were read to him and two other defendants in different cases as a group. The trial court then asked each defendant individually, including Defendant, if he 1 .^understood his guilty plea and if he waived all those rights. Specifically, the record indicates:

THE COURT: Mr. Vital, do you understand that by pleading guilty today that you’re waiving all of these rights?
MR. VITAL: (nods head affirmatively.)
THE COURT: I’m sorry?
MR. VITAL: Yes, sir.

Defendant’s application for PCR did not allege the reading of the Boykin rights to the group was improper. Rather, it contended that his plea was not knowingly and intelligently made because the trial court did not advise him of those rights and because the plea “was not entered by his own mouth, but by the trial court judge.”

The Louisiana Supreme Court addressed the issue of reading Boykin rights to defendants as a group in State v. Richard, 00-659 (La.9/29/00), 769 So.2d 1177. The court stated:

Moreover, even assuming that the defendant’s first pro se assignment of error, broadly construed, encompassed a challenge under La.C.Cr.P. art. 556.1 to the trial court’s use of an en masse Boykin procedure, the validity of any guilty plea “ ‘depends upon the circumstances of each case.’ ” State v. Filer, 00-0073, p. 2 (La.6/30/00), 762 So.2d 1080, 1081 (quoting State v. Strain, 585 So.2d 540, 544, n. 7 (La.1991)). In the present case, as in Filer, those portions of the Boykin colloquy which the trial judge conducted personally and individually with the defendant, ranging from his age, work experience and education to the nature of the offense and its penalty provisions, the necessity of compliance with the sex offender registration provisions of La.R.S. 15:542 upon conviction, and the extent of the plea bargain with the state, placed the court in a position to determine the knowing and voluntary nature of the defendant’s subsequent waiver of the trial rights the court explained personally but collectively to the several persons entering guilty pleas on the same day. To the extent that it conflicts with the views expressed herein Land in Filer, the court of appeal’s decision in State v. Lastrapes, 99-0083 (La.App. 3rd Cir.6/30/99), 743 So.2d 224, is disapproved.

Id. at 1178.

Here, the trial court individually questioned Defendant about his education and lack of physical or mental condition, medication, drugs, or alcohol that might prevent his understanding of the proceedings. The trial court verified that Defendant had the opportunity to discuss his “case, the facts, the possible defenses, and the consequences of [his] plea of guilty” to the forcible rape charge. Defendant confirmed that no one had forced, threatened, or coerced him into making his plea. The trial court reviewed the possible maximum sentence with Defendant before accepting his plea. Both Defendant and the State recommended a sentence of thirty years with the Department of Corrections, to run concurrently with the sentence he was receiving in another case. The trial court reviewed the lifetime notification and registration requirements regarding sex offender status. Defendant further indicated that he had reviewed and signed the Plea of Guilty and Waiver of Rights form with his attorney. The trial court’s colloquy with Defendant allowed the trial judge to determine the knowing and voluntary nature of Defendant’s waiver of his rights and subsequent guilty plea. Thus, Defendant’s pro se assignments of error lack merit.

ANDERS ANALYSIS:

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the analysis based on Anders, 386 U.S. 738, 87 S.Ct. 1396:

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

While it is not necessary for Defendant’s appellate counsel to “catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit[,]” appellate counsel’s An-ders brief must “assure the court that the indigent defendant’s constitutional rights have not been violated.” State v. Jyles, 96-2669, p. 2 (La.12/12/97), 704 So.2d 241 (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)). Defendant’s appellate counsel must fully discuss and analyze the trial record and consider “whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d 241. Thus, appellate counsel’s Anders brief must review the procedural history and the evidence presented at trial and provide “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Jyles, 704 So.2d 241, Defendant’s appellate counsel filed a brief citing two potential errors for appeal. First, counsel considered an excessive sentence argument. He determined the sentence imposed was in accordance with the plea agreement; thus, it is not subject to review on appeal. The plea agreement does not indicate that Defendant and the State agreed Ron his sentence. However, at the plea hearing, Defendant’s appellate counsel included the sentence as part of the plea agreement. Counsel for the State confirmed her agreement. Defendant indicated that he heard and he understood the recommended sentence. The trial court sentenced Defendant according to that recommendation.

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This court has held, based on this article, “[i]n an instance where the court sentences the defendant in accordance with the parties’ recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded.” State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. Thus, a defendant may not seek review of his sentence “when a specific sentence or sentencing range is agreed to by both parties as part of a plea agreement, and is judicially recognized at the sentencing hearing.” Id. at 39.

Here, Defendant and the State jointly recommended the sentence the trial court imposed. Defendant may not seek review of a sentence he recommended to the court and subsequently received. Defendant’s appellate counsel correctly concluded that Defendant cannot make a non-frivolous argument on appeal, alleging an excessive sentence.

Next, appellate counsel considered whether the trial court incorrectly denied Defendant’s motion to reconsider his sentence because he had already begun to 17serve the sentence. In fact, La.Code Crim.P. art. 881.1(C) allows the trial court to resentence a defendant despite the commencement of his sentence when he files a timely motion to reconsider, as Defendant did here. However, the trial judge also noted that Defendant’s “sentence was part of a plea agreement stated for the record”; thus, it was not subject to review. La. Code Crim.P. art. 881.2(A)(2). Defendant’s appellate counsel concluded that neither of these possible issues would offer Defendant relief. Accordingly, counsel seeks to withdraw as counsel of record.

Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including the pleadings, the minute entries, the charging instrument, and the transcripts, and we have confirmed the statements by Defendant’s appellate counsel. Defendant was present and represented by counsel at all crucial stages of the proceedings, and he acknowledged his guilty plea on the plea form. Contrary to the allegations of Defendant’s pro se assignments of error, the trial court correctly informed Defendant of his Boykin rights and discussed his possible sentence for forcible rape.

DISPOSITION

Our review of the record reveals no issues that would support an assignment of error on appeal beyond the potential issues addressed by counsel and the issues raised in the pro se assignments of error. Therefore, we affirm Defendant’s conviction and sentence and grant Defendant’s appellate counsel’s motion to withdraw as counsel of record on appeal.

CONVICTION AND SENTENCE AFFIRMED.

MOTION TO WITHDRAW GRANTED.

      . Defendant also pled guilty in the same plea agreement to distribution of cocaine, a violation of La.R.S. 40:967(A)(1). That plea is the subject of a separate appeal docketed under number 12-881 of this court.

      . The application for PCR also alleged ineffective assistance of counsel. That issue is not raised on appeal and will not be reviewed pursuant to Uniform Rules — Courts of Appeal, Rule 1-3.

      . Jordan, 716 So.2d 36, cites State v. Watkins, 97-364 (La.App. 3 Cir. 10/8/97), 700 So.2d 1172; State v. Laroux, 93-719 (La.App. 3 Cir. 2/2/94), 631 So.2d 730, writ denied, 94-577 (La.6/3/94), 637 So.2d 498; and State v. Lewis, 633 So.2d 315 (La.App. 1 Cir.1993). However, these cited cases preclude appellate review when sentencing is imposed according to a sentencing cap; they do not address the issue of sentencing imposed according to a jointly recommended sentence.