author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Anthony J. RICHARDSON.
    No. 2014-KA-0754.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2014.
    Rehearing Denied Dec. 17, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

hThe defendant, Anthony J. Richardson, was charged by bill of information on 4 November 2009 with possession of heroin, a violation of La. R.S. 40:966 C(l), and possession of cocaine, a violation of La. R.S. 967 C(2). He filed a request for a preliminary hearing, a bill of particulars, .and motions to suppress the evidence and for discovery. Following a hearing on 5 February 2010 and additional briefing, the trial court denied the motion to suppress. From that denial, Mr. Richardson sought supervisory review of the ruling, which this court denied. State v. Richardson, unpub., 10-0356 (La.App. 4 Cir. 4/1/10).

Mr. Richardson was found guilty as charged by a twelve-person jury on 22 March 2011. He filed motions for post-verdict judgment of acquittal, new trial, and arrest of judgment on 31 March 2011, which were denied on 6 April 2011. On that same day, Mr. Richardson was sentenced to four years at hard labor on each count, to run concurrently, with credit for time served. Also on that same day, the state filed a multiple bill of information, charging the defendant as a fourth offender; a hearing on the multiple bill was set for 16 June 2011. Thereafter, the multiple bill shearing was reset over twenty times. Mr. Richardson concedes that he did not appeal his conviction or sentence.

On 28 February 2013, the defendant filed a motion to quash the multiple offender bill of information, which the state opposed. A second motion to quash was filed on 3 May 2013. The trial court denied the quashal motions oh 18 December 2013 following a hearing.

Thereafter, the state amended the multiple offender bill, charging the defendant as a second offender, to which he admitted his status as a second offender, signing a waiver of rights/plea of guilty form as a multiple offender. Accordingly, the trial court vacated Mr. Richardson’s previous sentence and resentenced him as a second offender to the agreed-upon sentence of nine years at hard labor

Mr. Richardson timely appealed.

FACTS

At trial, New Orleans Police Department Officers Sean Ogden and Christopher Carter testified for the state. Both officers testified that sometime after 9:00 p.m. on 30 October 2009, while patrolling together in an unmarked police vehicle in the 1900 block of Marigny Street in New Orleans, they pulled up behind a truck parked in the center of the street. The officers observed a male on a bicycle was speaking to the driver of the truck through the driver’s window, and the truck remained in the middle of the street for several seconds. According to the officers, when the individual on the bicycle observed the officers, the bicyclist departed, | sheading towards North Prieur Street. They elected to conduct a traffic stop because the truck had been impeding the flow of traffic. The officers activated their vehicle’s lights, and the defendant pulled the truck to the side of the road.

As the officers approached, they observed that three other individuals were in the vehicle. Officer Ogden testified that as he approached the driver’s side, he noticed the defendant leaning forward and appeared to be grabbing something at the floorboard. Officer Carter approached the passenger side of the vehicle. After being instructed by Officer Ogden three times to sit upright and show his hands, the defendant complied. Thereafter, the officers instructed all occupants to exit the vehicle for officer safety.

As the occupants exited the vehicle, Officer Ogden observed a sock on top of a bag lying on the floorboard. Part of the contents of the bag could be seen, and Officer Ogden suspected that the contents of the bag consisted of powder cocaine. He advised Officer Carter of his discovery, and Officer Carter placed the defendant under arrest for possession of cocaine. During the search incident to arrest, Officer Ogden searched the sock, wherein he discovered an additional clear plastic bag containing individual pieces of what he suspected to be crack cocaine and two |4bags of heroin. Officer Ogden testified that he performed four preliminary tests to determine whether the items were powder cocaine, crack cocaine, and heroin, and the tests all came back positive. Officer Ogden further testified that he also issued the defendant a citation for impeding the flow of traffic and having a suspended driver’s license

ERRORS PATENT

A review of the record reveals an error patent. The trial court originally sentenced Mr. Richardson immediately after denying his motion for new trial. La. C.Cr.P. art. 873 states that “[i]f a motion for new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled.” However, we find the error is harmless because the original sentence was vacated when the defendant was adjudicated and sentenced as a multiple offender.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In the first counseled assignment of error, Mr. Richardson argues that the trial judge erred in denying the motion to quash the multiple offender bill.

La.C.Cr.P. art. 15:529.1 D(1)(a) provides that a multiple bill may be filed “at any time, either after conviction or sentence.” According to State v. Muhammad, 03-2991, p. 14 (La.5/25/04), 875 So.2d 45, 55, “[although the statute does not prescribe a time within which the bill must be filed, this court has made a determination that the district attorney must file the habitual offender bill ‘within a | ¡^reasonable time.’ ” (quoting State v. McQueen, 308 So.2d 752, 755 (La.1975)). See also La.C.Cr.P. art. 874 (“Sentence shall be imposed without unreasonable delay.”). The Muhammad Court noted that while “[t]he determination of whether the hearing is held within a reasonable time hinges on the facts and circumstances of the specific case,” an important factor in the reasonableness analysis “requires a determination of when the district attorney acquired the knowledge that defendant is a multiple offender.” Muhammad, p. 14, 875 So.2d at 55.

This court has recognized that in considering whether a delay in holding a multiple bill hearing is reasonable, the four factors articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), may be considered, “which are: the length of delay, the reason for the delay, an assertion of the right, and prejudice to the defendant.” State v. Simmons, 13-0312, p. 9 (La.App. 4 Cir. 10/16/13), 126 So.3d 692, 698. This court has further found that “[t]he Louisiana Supreme Court has noted that while these [Barker ] factors are neither definitive nor dispositive in the context of a habitual offender proceeding, they are instructive.” State v. Buckley, 11-0369, pp. 5-6 (La.App. 4 Cir. 12/27/11), 88 So.3d 482, 486 (citing Muhammad, p. 15, 875 So.2d at 55).

In Buckley, this court summarized the procedural history of Muhammad as follows:

In Muhammad, the original multiple offender bill of information was filed on the date of the defendant’s sentencing, which was before he was released from custody. Due to a series of events, including remands following two appeals, the defendant was not finally | ^adjudicated a multiple offender until four months after his sentence completion date. [Muhammad, 032991, p. 16, 875 So.2d at 56]. The issue was whether or not the multiple offender adjudication was timely completed. The Court found that the State did not unduly or unreasonably delay in completing the multiple offender proceedings, noting the “[d]efendant was never released from prison only to have the State, thereafter file enhancement proceedings.” Id. at 17, 875 So.2d at 56. [Emphasis supplied.]

Buckley, p. 6, 88 So.3d at 487

In State v. Burton, 07-1342, unpub. (La. App. 4 Cir. 4/23/08), 2008 WL 8922913, this court found that the trial court erred in adjudicating a defendant as a second felony habitual offender rather than a third felony habitual offender, and remanded the matter to the trial court “to perform the ministerial function of adjudicating Mr. Burton as a third-felony habitual offender” and to sentence him accordingly. Burton, p. 4 (citing State v. Burton, 02-1854, unpub. (La.App. 4 Cir. 2/12/03), 838 So.2d 946). However, the defendant was not actually adjudicated a third felony habitual offender and sentenced accordingly until August 17, 2007, nearly four years after the Louisiana Supreme Court had denied writs in his previous appeal.

Relying upon Muhammad, the defendant argued that his right to a speedy trial and sentencing had been violated by the delay in his adjudication as a third felony habitual offender, noting that he served his seven-year concurrent sentences prior to his 17 August 2007 adjudication as a third felony habitual offender. Burton, 07-1342, p. 5.

|7The Burton Court recognized that the delays in Muhammad were primarily attributable to the defendant’s two appeals rather than any action or delay on the part of the state, while in Burton, Hurricane Katrina was a factor at the two-year mark, causing the matter to remain dormant until this court’s disposition with respect to a pro se writ application decision issued on 29 May 2007. Burton, 07-1342, p. 6. This court found that although “the delay was a lengthy one, including a period attributable to Hurricane Katrina, Mr. Burton was not prejudiced,” as this court’s decision in the previous appeal established that he was a third felony habitual offender, and the version of La. R.S. 15:529.1 A(l)(b)(ii) in effect at the time mandated that the defendant would receive life imprisonment without the benefit of parole, probation, or suspension of sentence. Id. Accordingly, “Mr. Burton could have had no justifiable expectation that he would be released from prison after serving his original seven[-]year concurrent sentences.” Id. This court further held that even if fault could be attributed to the state for its failure to act, “there [was] no evidence that any failure by the State to act was abusive or vindictive,” nor evidence of dilatory tactics or bad faith on the part of the state. Id. Thus, pursuant to Muhammad, we found no reversible error in the trial court’s 17 | ^August 2007 adjudication of Mr. Burton as a third felony habitual offender and the imposition of the mandatory life imprisonment sentence. Id. at p. 8.

Mr. Richardson argues that unlike the defendants in Muhammad and Burton, he did not challenge his conviction or plea and thus did not cause a delay in the multiple offender proceedings in this case. He further notes that he was incarcerated for many of the settings of the trial of the multiple bill, and he provided the court with a current address following his release dates and was therefore amenable to process.

Mr. Richardson contends that his case is analogous to State v. Simmons, supra. In Simmons, the defendant was charged by bill of information with attempted armed robbery on 11 December 2009, and found guilty of same on 6 December 2010. At trial, he testified that he had been convicted of a felony, armed robbery, in Mississippi on 26 February 1997. The defendant was sixteen years of age at the time. On 27 January 2011, the defendant was sentenced to twenty-one months at hard labor with credit for time served. A few days later, the Mississippi Department of Corrections mailed documentation regarding the defendant’s prior felony conviction to the Orleans Parish District Attorney’s Office. Id., pp. 1-4, 126 So.3d at 693-694.

Although the state did not file a habitual offender bill, a multiple bill hearing was set for 30 March 2011, at which time the defendant did not appear in court, |9and the state requested that the hearing be held on 11 April 2011. Thereafter, the hearing was continued on numerous occasions throughout 2011 and 2012. The state filed a multiple offender bill of information on 9 February 2012. On July 15, 2012, the defendant was released from prison after completing the sentence for the underlying charge of attempted simple robbery. Nearly a month later, the state filed another habitual offender bill of information, and a multiple bill hearing was set for 16 October 2012. On that date, a status hearing was scheduled for 31 October 2012, at which time a motion to quash the bill of information was set for hearing on 28 November 2012. Id. The trial court granted the defendant’s motion to quash the multiple bill of information, and the state appealed, arguing that the defendant must show prejudice to defeat a habitual offender charge, relying upon State v. McNeal, 99-1265, p. 9 (La.App. 4 Cir. 6/14/00), 765 So.2d 1113, 1118. “In McNeal, this court found no prejudice in a delay of almost two years between the defendant’s conviction and the State’s filing of the multiple bill.” Simmons, p. 5, 126 So.3d at 696 (footnote omitted). The state also relied upon State v. Buckley, 11-0369, p. 7, 88 So.3d at 487, wherein “this court found no prejudice when a multiple bill hearing was not commenced until nearly three years after sentence.” Id. The state also noted this court’s finding in Buckley that “the State had informed [the defendant] at his original sentencing that it would file the multiple bill,” arguing that the delay was not unreasonable because the defendant was aware of his own previous felony conviction and was not prejudiced by the late filing because the first multiple bill hearing was scheduled approximately four months after he was found guilty. Simmons, p. 5, 126 So.3d at 696 (quoting Buckley, p. 7, 88 So.3d at 487).

| ipThe Simmons court recognized that in Buckley, the defendant was sentenced to twenty years, “making prejudice caused by the delay unlikely.” Id., p. 5, 126 So.3d at 696, n. 8. The court also noted that the Buckley court found that “the multiple bill hearing was continued numerous times on the motions of both the State and the defense, as well as by the court itself.” Id.

The defendant argued that the state handled the matter negligently and “violated both the letter and spirit of La.C.Cr.P. art. 874.” Id. at pp. 7-8, 126 So.3d at 697. The defendant noted that only one of the fifteen continuances was requested by him; the state did not file a habitual offender bill of information until over a year after his admission at trial regarding the previous felony conviction; the state failed to secure his appearance in court fifteen times; and the state “made only halfhearted and perfunctory efforts to ascertain Mr. Simmons’ whereabouts.” Id. at pp. 8-9, 126 So.3d at 698.

The defendant also relied upon State v. Broussard, 416 So.2d 109, 111 (La.1982), wherein the Court held that a thirteen-month delay in filing a habitual offender bill of information was unreasonable. The Simmons Court noted that in Broussard, although the defendant’s prior convictions were obtained in the same parish during the district attorney’s tenure in office and information regarding same was available at the time of the original sentencing, the state, offering no reason for its delay, waited to file a habitual offender bill of information until the defendant served thirteen months of his original sentence and was awaiting parole. Simmons, p. 10, 126 So.3d at 699.

The defendant in Simmons, however, had completed his sentence and been released. Thus, the defendant argued that the facts were more egregious than those in Broussard, and that notice of the prior felony conviction alone did not remedy Inthe prejudice he would suffer if the trial court’s ruling on the motion to quash was reversed, because pursuant to Muhammad, McQueen, and La.C.Cr.P. art. 874, a multiple bill must be filed within a reasonable time after the state becomes aware of a defendant’s prior felony conviction. Simmons, pp. 10-11, 126 So.3d at 699-700.

The Simmons court recognized that in State v. Carter, 630 So.2d 926, 931 (La.App. 4th Cir.1993), this court relied updh Broussard in holding that a fifteen-month delay was unreasonable “when both the State and the defendant were granted continuances, an investigation was undertaken to determine the validity of the defendant’s claim of a breach of a plea bargain agreement not to multiple bill him, and the case was transferred to a different section of court.” Simmons, p. 12, 126 So.3d at 700. The Simmons court also recognized that “[t]he application of the Broussard doctrine is a fact-specific inquiry depending on the particular circumstances of each case.” Id. at pp. 12-13, 126 So.3d 692 (quoting State v. Langlois, 96-0084, pp. 3-4 (La.App. 4 Cir. 5/21/97), 695 So.2d 540, 543).

The court affirmed the trial court’s grant of the defendant’s motion to quash, finding that the facts were similar to Broussard, as the state was put on notice of the defendant’s prior felony conviction when he revealed it at trial, but failed to file a habitual offender bill of information for over a year after learning of the prior conviction. The court also noted that the state failed to secure the defendant’s appearance in court on fifteen occasions despite the fact that he was in custody, and the state had requested nine of the fifteen continuances. Further noting that the state offered no justification for the delay, as was the case in Broussard, and that the multiple bill hearing had not taken place when the defendant was released from prison, “the State’s delay in filing and adjudicating the multiple bill of | ^information against Mr. Simmons was unreasonable” and “unduly prejudicial.” Simmons, p. 14, 126 So.3d at 701.

Mr. Richardson contends that his case is similar to Simmons because despite the fact that he was in state custody, he was not brought to court, which necessitated continuances of the multiple bill hearing that should be attributable to the state for failing to secure his presence.

However, he concedes that in other cases from Louisiana courts, lengthy delays have been found to be reasonable. For example, in State v. Zachary 08-634, p. 4 (La.11/21/08), 995 So.2d 631, 632-633 (Kimball, J., concurring in the writ denial), the Court found that where the delays in holding a multiple bill hearing were five years after the first multiple bill hearing setting and seven years after the filing of the bill of information “were largely a result of the defendant’s exercise of her right to seek to quash the bill of information and the State’s exercise of its right to seek review of adverse trial court rulings with the court of appeal and with this court,” resulted in no due process violation. The Court recognized that “[w]hile the delays in bringing the habitual offender proceedings to a conclusion were unusual, the defendant knew shortly after her conviction that the state would pursue enhanced punishment and the delays stemmed from protracted litigation over a variety of issues, including the sufficiency of the evidence documenting defendant’s conviction in Florida used in the present case to enhance her sentence as a second offender.” Id. at pp. 3-4, 995 So.2d at 632. The Court also found 1 iSthat “the delay in completing the habitual offender adjudication c[ould not] be attributed to bad faith or vindictiveness on the part of the State.” Id., p. 4, 995 So.2d at 632.

Additionally, as noted above, in Buckley, p. 7, 88 So.3d at 487, this court affirmed the trial court’s denial of the defendant’s motion to quash the multiple bill of information even though “the State significantly delayed the filing of the multiple bill of information for purposes of receiving additional documentation,” resulting in a delay of the multiple bill hearing of over two years. Also as noted above, this court in BuHon found that a four-year delay in adjudicating the defendant as a habitual offender was not prejudicial where “the State took no action to cause the delay, did not benefit from the delay, and did not act in bad faith.” Burton, 07-1342, p. 8.

The state notes that Mr. Richardson’s case does not present the scenario that the Louisiana Supreme Court sought to prevent in Muhammad — a defendant is “released from prison only to have the State thereafter file enhancement proceedings.” Muhammad, p. 17, 875 So.2d at 56. In this case, the state submits, 114that the defendant had not satisfied the terms of his sentence or been released from custody. The state calculates that Mr. Richardson’s sentence for the underlying conviction for possession of heroin and possession of cocaine will not be satisfied until 6 April 2015. Accordingly, the state contends that Mr. Richardson has not been prejudiced by the delay in this case.

Additionally, the state argues that the record does not evidence that it unduly or unreasonably delayed instituting the multiple bill proceedings or that it had acted in bad faith or gained an unfair advantage in delaying the proceedings. The state further notes that it only moved for one continuance, on 18 August 2011, as the other continuances were either joint continuances, court continuances, or continuances by the defendant. Finally, the state submits that Mr. Richardson did not lodge an objection to any of the continuances of the multiple bill hearing, nor did he assert his right to a prompt disposition until he filed a motion to quash on 28 February 2013.

In State v. Hall, 13-0453, pp. 11-12 (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39, this court recognized the standard of review applicable to a trial court’s ruling on a motion to quash is whether a trial court abused its discretion if the trial court makes factual determinations:

[Tjhis court in reviewing a.motion to quash involving solely a legal issue ... applies a de novo standard of review. State v. Guillott, 12-0652, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 551, 553 [2013 WL 633093] (citing State v. Schmolke, 12-0406, pp. 2-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298-99). In cases involving other types of motions to quash involving factual determinations — such as speedy trial violations and nolle prose-qui dismissal-reinstitution cases — this court applies an abuse of discretion standard. [State v.] M.C., 10-1107 at p. 10 [(La.App. 4 Cir. 2/18/11)], 60 So.3d [1264] at 1270; see also State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3 (explaining that “[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 (“[because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion”).

Applying the Barker factors to this case: The length of the delay between sentencing and the date that Mr. Richardson was adjudicated a multiple offender exceeded two and a half years. The reason for the delay is more attributable to Mr. Richardson than to the state. (The defendant concedes this.) A review of the minute entries evidences that Mr. Richardson requested that the multiple bill hearing be continued on 6 and 15 February 2018, 19 March 2013, 12 April 2013, 23 October 2013, and 25 November 2013. As previously noted, the state only moved for one continuance. On several occasions, while the defendant was in the state’s custody, he was not brought to court for the hearing. However, we find 116that this case is not analogous to Simmons, because in Simmons, the state requested nine of the fifteen continuances, and the state failed to bring the defendant to court on fifteen occasions, despite the fact that the defendant was in the state’s custody. See Simmons, p. 13, 126 So.3d at 701.

Additionally, at the hearing on the motion to quash, the trial court reviewed the minute entries and noted that many of the continuances for the hearing on the multiple bill were attributable to the defendant. The trial court also found that “the fact of the multiple bill being in the record was never a surprise to Mr. Richardson. At the very latest this multiple bill was filed some time shortly after the trial.... Again, there has been no surprise and the thing never got lost for a year and a half or two years.”

With regard to the third Barker factor, the assertion of the right, although the multiple bill hearing was reset numerous times throughout 2011 and 2012, Mr. Richardson did not file a motion to quash until 28 February 2013. Even after filing the motion to quash alleging untimeliness, the defendant moved to continue the hearing on the motion to quash on four occasions after filing the motion.

The fourth Barker factor to consider is the prejudice to the defendant. In his motion to quash, Mr. Richardson averred that he was released from jail 28 October 2011, and on parole through November of 2013. However, in the defendant’s counseled brief, he contends that he was still in jail on the 10 November 2011 hearing date, as well as the 12 and 15 December 2011 hearing dates. The minute entry of 12 December 2011 indicates that the defendant was remanded, and the minute entry for 15 December 2011 indicates that a release was issued. Mr. 117Richardson also contends in his appellate brief that he was again in the state’s custody on 14 December 2012, as the minute entry for that date indicates that he was to be placed on the jail list. However, the minute entries for 6 February 2013, 15 February 2013, and 28 February 2013 indicate that notice was to be sent to the defendant, while the minute entry for 6 March 2013 indicates that the defendant be placed on the jail list. The minute entries for 19 March and 12 April 2013 indicate that the defendant was notified in court. The minute entry for 3 May 2013 evidences that the defendant was not in custody, as the trial court issued an alias capias for his arrest with no bond; after Mr. Richardson appeared in court, he fled the courtroom without permission after defense counsel and the state had a meeting with the trial court.

In any event, it appears that Mr. Richardson was possibly on parole at the time the motion to quash the multiple bill was filed on 28 February 2013. He contends that he suffered prejudice because the state “failed to take any active steps to conduct the hearing until after [he] had been released, had broken his drug habit, and had started a new life.” However, like Muhammad, the multiple bill in this case was timely filed, and “Defendant was never released from prison only to have the State thereafter file enhancement proceedings.” Muhammad, p. 17, 875 So.2d at 56. Additionally, the record does not evidence, nor does Mr. Richardson contend, that the state had acted in bad faith, used dilatory tactics, or was abusive or vindictive.

| ^Furthermore, as in both Zachary, pp. 3-4, 995 So.2d at 632, and Buckley, p. 7, 88 So.3d at 487, the defendant was aware that the state had timely filed a multiple bill, which, as the trial court recognized, was repeatedly reset for hearing. Like Zachary, “[w]hile the delays in bringing the habitual offender proceedings to a conclusion are unusual, defendant knew shortly after [his] conviction that the state would pursue enhanced punishment.” Zachary, pp. 3-4, 995 So.2d at 632.

Although Mr. Richardson had been released and was on parole before the hearing on the multiple bill, the majority of the delays in Simmons were plainly attributable to the state, whereas in this case, the majority of the delays can be attributed to the defendant. Additionally, in Simmons, the state delayed filing the multiple bill for over one year and offered no justification therefor, whereas in this case, the multiple bill was filed on the same day that the defendant’s original sentence was imposed. See Simmons, pp. 13-14, 126 So.3d at 701. Considering the foregoing, we do not find that Mr. Richardson has established that he has been prejudiced by the delay in holding the multiple bill hearing. Accordingly, we find that the trial court did not abuse its discretion in making the factual finding that the defendant contributed to a majority of the delays in bringing the habitual offender proceedings to a conclusion and in denying his motion to quash. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second counseled assignment of error, Mr. Richardson contends that both the plea form and the colloquy failed to inform the defendant of the rights he could be waiving by entering into the plea to second offender status, and therefore, should the defendant be denied appellate review on the denial of the motion to quash, the plea was involuntary and constitutionally infirm.

li9In response, the state simply argues that the defendant entered an unqualified plea of guilty as a multiple offender, as evidenced by the plea of guilty form, and submits that the signed plea form and the accompanying colloquy do not evidence that the plea was made subject to the reservation of appellate review. Accordingly, the state argues, because the defendant did not enter his guilty plea pursuant to State v. Crosby, 338 So.2d 584, 588 (La.1976), he waived his right to appellate review of any non-jurisdictional defects.

Mr. Richardson concedes that pursuant to the plea form wherein he admitted to his second offender status, he agreed that he was giving up the right to a multiple offender hearing. He also concedes that he failed to object to the terms of the plea of guilty form. However, he contends, neither the form nor the trial court informed him that as a result of admitting his second offender status, he waived his right to seek review of the grounds for dismissal of the multiple offender proceeding on the grounds that the hearing, adjudication, and sentencing had not taken place timely. Mr. Richardson submits that the absence of the specific waiver of the appeal of the trial court’s ruling on the motion to quash in the plea form and during the colloquy with the trial court evidences that the plea was based upon a belief that an appeal would lie from the ruling on the motion to quash and vitiated the voluntariness of the plea.

The defendant further argues that a plea of guilty to a bill of information contains a specific waiver, while guilty pleas to multiple offender bills do not contain the same specific waiver of appellate rights. He concedes that La. R.S. 15:529.1 does not specifically mandate that a defendant execute a waiver of thej^right to appeal, but submits that the provisions of La. R.S. 15:529.1 D(3) contemplate appeals.

The plea form executed by Mr. Richardson provides that he was “satisfied with [his] attorney and the Court in their efforts to explain the rights [he was] waiving and the consequences of this guilty plea” and that he “underst[oo]d all of the possible legal consequences of pleading guilty.” (Emphasis added.) This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

In the defendant’s first pro se assignment of error, he alleges, “aggrieved judgment of conviction entry of La. R.S. 15:529.1 is an issuance of absolute nullity unconstitutional [sic] conflicting La. Const. Art. I. sec. 20 right to humane treatment, at [sic] excessive, cruel, unusual and full right of citizenship restored post state and federal supervision of any conviction for any offense.” As noted above, because Defendant pled to the multiple bill, he waived the right to appeal his adjudication and sentence.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

In Mr. Richardson’s second pro se assignment of error, he asserts, “aggrieved issuance exceeded inferior courts [sic] subject matter jurisdiction, not within realm of persuasive discretion violating statutory conference [sic].” He l^does not specify how the court lost jurisdiction over his ease. A review of the record reveals that this argument was not raised at the trial court, and, therefore, is precluded from review on appeal. See La.C.Cr.P. art. 841 A (providing, in part, that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”).

PRO SE ASSIGNMENT OF ERROR NUMBER 3

In the defendant’s third pro se assignment of error, he states, “aggrieved as herein stated, violative separation of powers La. Const. Art. II sec. 20(1)(2), where judicial official assumed and affects powers of and greater than legislative branch of Louisiana government (28 U.S.C. 2403 ...).” Again, Mr. Richardson sets forth no argument on this claim. A review of the record reveals that this argument was not raised at the trial court, and, therefore, is precluded from review on appeal. See La.C.Cr.P. art. 841.

PRO SE ASSIGNMENT OF ERROR NUMBER 4

Next, Mr. Richardson asserts, “aggrieved alleged violative one or more but not limited to: Const. Art. I, cl. 2, 3, 20, 22, 23, 24, 26.” He does not specify how his conviction and sentence violate these constitutional provisions. A review of the record reveals that this argument was not raised at the trial court, and, therefore, is precluded from review on appeal. See La. C.Cr.P. art. 841.

PRO SE ASSIGNMENT OF ERROR NUMBER 5

In the defendant’s final pro se assignment of error, he asserts, “aggrieved alleged violative and/or the by[-]product of: 18 U.S.C. 4, misprision of a felony; 241 conspiracy; 242 deprivation of rights under the color of law; 871 statutory extortion; 1589 forced labor.” Again, be sets forth no argument on this claim. A preview of the record reveals that this argument was not raised at the trial court, and, therefore, is precluded from review on appeal. See La.C.Cr.P. art. 841.

CONCLUSION

For the foregoing reasons, we find that the trial court did not abuse its discretion in denying Mr. Richardson’s motion to quash the multiple bill of information. The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . A 7 September 2011 minute entry notes that "the record should reflect that on April 6, 2011 the defendant was sentenced to 4 years DOC with credit for time served. That should include concurrent with 473-326 and any other time currently being served.”

      . A minute entry for 9 January 2012 indicates that the state filed another multiple bill on that day.

      . Also at the hearing, the trial court remarked that as a fourth offender, Mr. Richardson faced a sentencing range of twenty years to life and suggested that the parties reach an agreement.

      . None of the other occupants of the vehicle was questioned or arrested, and all were released.

      . Craig Carey, a witness to the arrest of the defendant, testified that he was picking up his girlfriend on 30 October 2009 at approximately 9:30 or 10:00 p.m. Edward Gai, a licensed private investigator hired by counsel for the defense, testified regarding photographs he had taken of the defendant’s truck while it was on Marigny Street.

      . Officer Ogden identified the contraband recovered from the vehicle, which was admitted as evidence. Photographs of the vehicle were also admitted. The state’s criminalist's report which evidenced that all substances tested positive for either heroin or cocaine was also received.

      . The Muhammad Court also acknowledged that "[t]he court in State ex rel. Williams v. Henderson [289 So.2d 74 (La.1974)], established a bright line rule that superimposed a requirement for completion of the proceedings not mentioned in [La.C.Cr.P. art. 15:529.1]” and thereby overruled State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), to the extent it established such a bright line rule. Muhammad, pp. 15-17, 875 So.2d at 55-56.

      . The Burton Court noted that it was not disputed that the original habitual offender bill of information was timely filed, and that the state did not have to prove that the defendant was a third felony habitual offender because the court already made that determination in the previous appeal. Burton, 07-1342, p. 5.

      . Notably, with regard to Mr. Burton's reliance upon La.C.Cr.P. art. 874 and his argument that the Muhammad Court did not consider whether allowing the district attorney such wide discretion violated the article, the Burton Court found:
      In [State v.] McQueen [308 So.2d 752 (La.1975)], the court held, in a case involving a habitual offender proceeding commenced three years and eight months after the defendant’s conviction, but before the completion of his sentence for the underlying offense, that La.C.Cr.P. 874 controlled because a habitual offender proceeding deals only with the sentencing of a defendant. In Muhamm[a]d, while the Court did not explicitly overrule or disagree with its prior holding in McQueen, and in fact cited McQueen, it did not dispose of the issue presented by Muhamm[a]d by relying on La.C.Cr.P. art. 874, when the facts were essentially the same as Muhamm[a]d, except for the defendant's completion of his sentence in Muhamm[a]d. It is obvious that in Muhamm[a]d the court moved beyond McQueen and its holding that La. C.Cr.P. art. 874 controls the timing of habitual offender proceedings. [Emphasis supplied.]

        Burton, 07-1342, p. 8.

      . We note that the Burton Court found that “[i]t is clear that the delay [in the defendant’s habitual offender adjudication] was not due to any fault or action by Mr. Burton.” Burton, 071342, p. 6.

      . The unusual circumstances in Zachaiy resulted from the defendant's motion to quash the original multiple bill, arguing that her nolo contendere plea in Florida was void of evidence that she knowingly and voluntarily waived her rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The state was unable to obtain a copy of the plea colloquy, and the trial court declined to adjudicate the defendant as a habitual offender. After sentencing, the state located a copy of the plea colloquy and moved to reopen the multiple bill proceedings, but the trial court denied the motion. The First Circuit granted the state’s writ application and remanded the matter for a multiple bill hearing. Even after holding a multiple bill hearing, however, the trial court found that the state's evidence was insufficient and quashed the multiple bill. The First Circuit denied the state’s writ application, but the Louisiana Supreme Court granted writs, reversed, and remanded. On remand, the First Circuit reversed the trial court's grant of the second motion to quash and remanded the matter for a multiple bill hearing. The defendant filed a third motion to quash, and after a hearing, the trial court found the defendant to be a second-felony habitual offender. In the interim, the defendant had secured her release on parole. The trial court subsequently sentenced the defendant to twenty years at hard labor, and the defendant appealed. The First Circuit affirmed, and the Louisiana Supreme Court granted the writ application.

      . In a case that predated Muhammad, State v. Morris, 94-0553, pp. 2-3 (La.App. 4 Cir. 11/17/94), 645 So.2d 1295, 1297, this court found that a five-month delay was not unreasonable and did not prejudice the defendant because the state was waiting for subpoenaed records, and "defendant was fully informed when he pled to the instant offense that he would be charged as a multiple offender.” See also State v. McNeal, p. 9, 765 So.2d at 1118 (two-year delay between the defendant's conviction and the filing of the multiple bill held to be not prejudicial where the defendant was still incarcerated on the original conviction at the time the multiple bill was filed).

      . The defendant asserts that "the record reflects that Mr. Richardson’s case was actually closed at one time, reflecting a desire not to follow through with the prosecution.” He is referring to the 7 September 2011 minute entry indicating that the case was closed for the defendant. However, a review of the next minute entry, dated 14 October 2011 contains the following notation: " * * * * DISREGARD ANY MENTION OF THIS MATTER BEING CLOSED.* * * * ”

      . Additionally, a review of the minute entry for 3 May 2013 indicates that the defendant initially failed to appear, but after the court issued an alias capias with no bond, he appeared only to flee the courtroom without permission after defense counsel and the state had a meeting with the court. Also, on 6 January 2012, the multiple bill hearing was continued because counsel for the defendant filed a motion to withdraw.

      . A review of the minute entries evidences that dates on which the multiple bill hearing was set and the defendant did not appear were 14 October 2011, 14 December 2012, 25 September 2013, and 14 November 2013. On 15 December 2011, Mr. Richardson did not appear, but his counsel waived his presence. On 6 January 2012, the date that the defendant provided his address to the court, the matter was continued without date. On 15 January 2013, the defendant did not appear, but the matter was continued by the trial court because the judge was ill.

      . The trial court stated, "one can not state that the multiple bill itself was out of sight, out of mind, because he kept getting set on the docket.”

      . A review of the minute entries also evidences that a hearing on a rule to show cause why the defendant’s "probation” should not be revoked was set for 25 September 2013. He was in jail from 25 July 2013 through the date of the multiple bill hearing on 18 December 2013.

      . La. R.S. 15:529.1 D(3) provides:
      When the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge. BELSOME, J.,

license: Public Domain

text:
    STATE of Louisiana v. Doretha MOSBY.
    No. 2014-KA-0215.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Adam B. Beckman, Martin E. Regan, Jr., Nisha Sandhu, Regan & Sandhu, P.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   PAUL A. BONIN, Judge.

| iDoretha Mosby appeals her conviction for the willful and unlawful distribution of cocaine, a controlled dangerous substance. First, contending that no rational trier of fact could have found that she engaged in a narcotics transaction, Ms. Mosby requests a Jackson v. Virginia review for sufficiency of evidence and, as her remedy, seeks the reversal of her conviction and an acquittal. Second, Ms. Mosby claims entitlement to have her conviction reversed and a new trial ordered to be undertaken because of her trial counsel’s constitutionally ineffective assistance in which counsel failed to move to sever her trial from that of her codefendant, Ronnie Palmore. And third, Ms. Mosby contends that the thirty-year minimum sentence imposed upon her as a fourth felony offender under the Habitual Offender Law is unconstitutionally excessive.

Having reviewed Ms. Mosby’s claim for sufficiency of evidence under the well-known Jackson v. Virginia standard, we are satisfied that any rational trier of fact, considering the uncontradicted testimonies of the police detectives, could have found beyond a reasonable doubt that Ms. Mosby distributed cocaine to Mr. Palmore. Turning next to her ineffective-assistance-of-counsel claim, we find the record insufficiently developed for our review and reserve' Ms. Mosby’s right to | ¡.subsequently raise this claim through an application for post-conviction relief. Finally, after reviewing the presentence investigation report and the transcripts of the original sentencing and multiple bill hearings, we conclude that the sentencing judge did not abuse his considerable discretion by imposing the minimum sentence permitted under the Habitual Offender Law. We accordingly affirm Ms. Mosby’s conviction and sentence.

We explain below our reasoning for each holding.

I

In this Part we explain our holding that the detectives’ uncontradicted testimonies at trial were sufficient such that any rational trier of fact could have found beyond a reasonable doubt that Ms. Mosby distributed cocaine.

A

We first consider the essential elements of the offense for which Ms. Mosby has been convicted — distribution of cocaine.

La. R.S. 40:967 A(l) punishes the knowing or intentional distribution of controlled dangerous substances statutorily-classified in “Schedule II.” See La. R.S. 40:967 A(l). Cocaine is included in this statutory classification. See La. R.S. 40:964 A(4). “Distribution” includes, inter alia, the “physical delivery” of a controlled dangerous substance to another. See La. R.S. 40:961(14). See also State in the Interest of C.D., 11-1701, p. 10 (La.7/2/12); 93 So.3d 1272, 1278 (quoting State v. Celestine, 95-1393, p. 3 (La.1/26/96); 671 So.2d 896, 897) (“[I]n narcotics cases, distribution is ‘defined as the delivery or transfer of possession and control over controlled substances.’”) (internal quotations omitted). Thus, the essential elements of this offense, which the prosecution must prove beyond a reasonable doubt at trial, are: “(1) delivery or physical transfer; (2) guilty |sknowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance.” State v. Johnson, 01-1455, p. 5 (La.App. 4 Cir. 5/29/02); 825 So.2d 1230, 1233.

We turn now to a consideration of the trial evidence.

B

Detective Rafael Dobard testified that, on the afternoon of September 21, 2014, he was conducting surveillance of the 3800 block of Texas Drive in New Orleans, an area known for narcotics trafficking, prior to the execution of two search warrants in an unrelated matter. Detective Dobard, dressed in plain clothes and sitting inside an unmarked police unit, observed a vehicle, driven by Mr. Palmore, enter the parking area of an apartment complex. He then watched Ms. Mosby exit an apartment and join Mr. Palmore inside ..of the vehicle. Detective Dobard stated that he had an unobstructed view into the front of the vehicle using binoculars. A short conversation ensued between Ms. Mosby and Mr. Pal-more. Detective Dobard then witnessed a hand-to-hand transaction during which Mr. Palmore handed money to Ms. Mosby in exchange for an unknown object. Mr. Palmore, immediately after receiving the object, raised his body off of the seat and hid the unknown object in his underwear. Ms. Mosby then exited the vehicle and returned to the apartment from which she had previously emerged; Mr. Palmore drove away.

Detective Dobard, from his extensive experience with narcotics investigations, became suspicious that the transaction involved drugs when Mr. Palmore hid the unknown object in his underwear. In response, Detective Dobard, via radio, alerted the “take-down” unit assigned to assist his surveillance, which included Detectives Quincy Jones, Wesley Humbles, and Corey Foy in two marked |4police units. Detective Dobard indicated that an investigative stop of Mr. Palmore should occur, explained the events he had just witnessed, and described the vehicle and Mr. Palmore as well as his direction of travel.

The “take-down” unit located Mr. Pal-more shortly thereafter and began to follow his vehicle. Detective Jones testified that Mr. Palmore then disregarded a street sign and was stopped shortly thereafter. After a brief investigation, Detective Jones discovered that Mr. Palmore had two outstanding arrest warrants and was driving with a suspended driver’s license. Mr. Palmore was then arrested and searched incident to that arrest by Detective Humbles. Seven pieces of crack cocaine in a plastic bag were discovered in Mr. Palmore’s underwear. Detectives Foy and Humbles confirmed this information in their testimonies.

Following the arrest of Mr. Palmore, Detective Dobard testified that he went to the apartment in which Ms. Mosby had previously entered. An unknown female answered the door; Detective Dobard could see Ms. Mosby sitting on a sofa. Detective Dobard requested that Ms. Mos-by exit the apartment, advised her of her Miranda rights, and placed her under arrest for distribution of cocaine. Detective Dobard then asked whether Ms. Mosby was in possession of any contraband; Ms. Mosby responded by removing what Detective Dobard recognized as a “crack pipe” from her brassiere and handing the pipe to Detective Dobard. No money or narcotics were recovered from Ms. Mosby; the apartment where Ms. Mosby was located was never searched.

C

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set forth in Jackson v. Virginia. See generally 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also State v. Mathews, 375 So.2d 1165, 1167-68 (La.1979).5 This inquiry requires a reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. 2781.

There are several principles that guide our review under this well-known standard. First, we examine all of the evidence considered by the jury at trial. See id. Thus, we do not ignore evidence that was erroneously admitted or could have been excluded at trial, i.e., inadmissible hearsay. See State v. Hearold, 603 So.2d 731, 734 (La.1992).

Second, all of the evidence is viewed in the light most favorable to the prosecution. See Jackson, 448 U.S. at 319, 99 S.Ct. 2781; State v. Fields, 12-0674, p. 6 (La.App. 4 Cir. 6/19/13); 120 So.3d 309, 315. We are not limited to the admitted evidence alone, but may also consider all reasonable inferences from that evidence which the fact-finder could have made. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781. As such, when circumstantial evidence forms the basis of a conviction, such evidence must consist of “proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Shapiro, 431 So.2d 372, 378 (La.1982).

Third, in evaluating a defendant’s challenge to the sufficiency of evidence, we are restricted to those theories actually put forth by the defense at trial. See State v. Juluke, 98-0341, pp. 4-5 (La.1/8/99); 725 So.2d 1291, 1293 (per curiam). A defendant may not simply develop a new theory on appeal and demonstrate that the evidence was insufficient to negate that new theory. See id.

And, fourth, we are highly deferential to the findings of the trier of fact. See State v. Barthelemy, 09-0391, pp. 24-25 (La.App. 4 Cir. 2/24/10); 32 So.3d 999, 161015. In criminal cases our “appellate jurisdiction extends only to questions of law.” La. Const. art. V, § 10(B). It is “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. See also State v. Smith, 11-0664, p. 4 (La.App. 4 Cir. 1/30/13); 108 So.3d 376, 381. The trier of fact may accept as true the testimony of any witness, even a single witness, and find such testimony sufficient to establish each element of an offense beyond a reasonable doubt. See State v. Sanchell, 11-1672, p. 6 (La.App. 4 Cir. 10/31/12); 103 So.3d 677, 680.

Our review will only impinge upon this fact-finding function to the extent necessary to assure compliance with Jackson v. Virginia. See State v. Macon, 06-481, p. 8 (La.6/1/07); 957 So.2d 1280, 1285. “The Due Process Clause of the Fourteenth Amendment, the source of the Jackson [v. Virginia] standard, does not countenance, much less require, that we re-weigh testimony and witness credibility.” See State v. Gilmore, 10-0059, p. 6 (La.App. 4 Cir. 10/6/10); 50 So.3d 208, 212-13. See also Jackson, 443 U.S. at 319, 99 S.Ct. 2781. We will only tread on a jury’s presumed acceptance of a witness’ testimony when that testimony is implausible or clearly contrary to evidence. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988). See also State v. Marshall, 04-3139, p. 9 (La.11/29/06); 943 So.2d 362, 369 (“Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.”); State v. Robinson, 10-0885, pp. 7-8 (La.App. 4 Cir. 12/21/10); 54 So.3d 1208, 1213.

JaP

Construing the detectives’ uncontradict-ed testimonies in the light most favorable to the prosecution, we find that any rational fact-finder could conclude that Ms. Mos-by distributed cocaine to Mr. Palmore. Ms. Mosby argues that the prosecution failed to prove beyond a reasonable doubt that a narcotics transaction occurred. But Detective Dobard testified that while on surveillance he witnessed Ms. Mosby exit an apartment and enter a vehicle driven by Mr. Palmore. Detective Dobard further testified that a hand-to-hand transaction occurred in which Mr. Palmore gave money to Ms. Mosby in exchange for an unknown object. Mr. Palmore then hid the recently-acquired, unknown object in his underwear. Detectives Jones, Humbles, and Foy all testified that, shortly thereafter, during a search incident to Mr. Palmore’s arrest, seven pieces of crack cocaine were discovered hidden in his underwear.

We conclude, after construing the detectives’ plausible, uncontradicted testimonies in, the light most favorable to the district attorney, that any rational trier of fact could have found the essential elements of distribution of cocaine were proven beyond a reasonable doubt. Thus, the evidence is sufficient to sustain Ms. Mosby’s conviction.

II

Ms. Mosby contends that her trial counsel provided ineffective assistance under the Sixth Amendment to the U.S. Constitution by failing to move to sever her trial from that of Mr. Palmore. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ms. Mosby claims that this inaction and the resultant joint trial unduly prejudiced her through the introduction of evidence against Mr. Palmore that would have been ruled inadmissible against her during a separate trial.

|8We decline to review and render a decision on this assignment of error, however, as the record is not sufficiently developed. See State v. Stowe, 93-2020 (La.4/11/94); 635 So.2d 168, 173. See also State v. Ford, 09-0392, p. 5 (La.App. 4 Cir. 10/21/09); 24 So.3d 249, 253. Ineffective-assistance-of-counsel claims are usually better addressed in post-conviction proceedings, rather than on direct appeal. See State v. Deruise, 98-0541, p. 34 (La.4/3/01); 802 So.2d 1224, 1247. See also State v. Fields, 08-1223, p. 9 (La.App. 4 Cir. 4/15/09); 10 So.3d 350, 355 (noting that ineffective assistance of counsel claims are “more properly addressed in an application for post[-]eonviction relief filed in the trial court[] where a full evidentiary hearing can be conducted” and that only interests of judicial economy justify consideration of these matters on direct appeal). We reserve Ms. Mosby’s right to raise this claim through an appropriate and timely application for post-conviction relief. See La.C.Cr.P. arts. 924 et seq.

Ill

In this Part we review Ms. Mosby’s thirty-year sentence for excessiveness under Article I, Section 20 of the Louisiana Constitution. While Ms. Mosby’s private counsel did not comply with the statutory requirements for properly preserving a claim of excessiveness on appeal, see La. C.Cr.P. arts. 881.1 E; 881.2 A(l), we will nonetheless consider her assignment of error due to counsel’s oral request for downward departure from the statutory minimum and timely objection to her sentence following the multiple bill hearing. See State v. Miller, 00-0218, pp. 7-8 (La.App. 4 Cir. 7/25/01); 792 So.2d 104, 111 (citing State v. Mims, 619 So.2d 1059 (La.1993) (per curiam)).

After reviewing the presentence investigation report and the transcripts of the original sentencing and multiple bill hearings, we find that the sentencing judge [c)did not abuse his considerable discretion in imposing a thirty-year sentence, the statutory minimum, upon Ms. Mosby following her adjudication as a fourth felony offender under the Habitual Offender Law, La. R.S. 15:529.1. The sentencing judge, prior to imposing that sentence, read the contents of the presentence investigation report into the record, noted the range of sentences permitted by the Habitual Offender Law, and stated that he had weighed the relevant considerations set forth in the Code of Criminal Procedure. Ms. Mosby failed to rebut the presumption of the constitutionality of her sentence and justify a downward departure from the statutory minimum.

A

Article I, Section 20 of the Louisiana Constitution prohibits any law from subjecting a person to excessive punishment. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. Compare La. Const. art. I, 20 with U.S. Const. amend. VIII. A sentence is constitutionally excessive if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Davis, 449 So.2d 452, 453 (La.1984). The “deliberate inclusion by the redactors of the [Louisiana] Constitution of a prohibition against ‘excessive’ as well as cruel and unusual punishment broadened the duty of [courts] to review the sentencing aspects of criminal statutes.” State v. Baxley, 94-2982, p. 4 (La.5/22/95); 656 So.2d 973, 977.

| ipThe prohibition against, excessive sentences forbids their imposition not only by the judiciary but also the legislature and requires review of statutory sentencing ranges in relation to the particular offense and offender. See State v. Sepulvado, 367 So.2d 762, 766 (La.1979). “[T]he determination and definition of acts which are punishable as crimes is purely a legislative function.... It is the Legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies.” State v. Dorthey, 623 So.2d 1276, 1278 (La.1993) (citations omitted). See also State v. Johnson, 97-1906, p. 5 (La.3/4/98); 709 So.2d 672, 675. And “[penalties provided by the [Legislature reflect the degree to which the criminal conduct is an affront to society.” State v. Hamdalla, 12-1413, p. 15 (La.App. 4 Cir. 10/2/13); 126 So.3d 619, 626 (citing State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04); 871 So.2d 1235, 1239).

A trial judge is given wide discretion in the imposition of sentences within statutory sentencing ranges. See State v. Cann, 471 So.2d 701, 703 (La.1985). See also Sepulvado, 367 So.2d at 769. This discretion has long been established. See Dillon v. U.S, 560 U.S. 817, 828-29, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Statutory sentencing ranges vary significantly in the degree to which they grant discretion to a sentencing judge to weigh the circumstances of the offense and mete out justice to those convicted. “In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise his sentencing discretion to impose sentences gradated according to the individualized circumstances of the offense and of the offender.” Sepulvado, 367 So.2d at 766. “This interactivity between the range of permissible statutory criminal sanctions and the individualized facts of each case creates a sliding, fact-variant spectrum for a trial judge’s discretion under each criminal statute for each particular criminal 1 n defendant.” Hamdalla, 12-1413, p. 15; 126 So.3d at 627. “Thus, the range of discretion granted a sentencing judge in handing down a sentence fluctuates depending on the interactivity of the facts of a particular case, the permissible criminal sanctions, and the range of conduct prohibited by the particular criminal statute that the defendant is convicted of violating.” Id., 12-1413, pp. 15-16; 126 So.3d at 627.

The Legislature’s determination of the appropriate sentence for certain offenses should be afforded great deference by the judiciary. See Johnson, 97-1906, p. 6; 709 So.2d at 676. In fact, a sentencing judge must always start with the presumption that the sentence supplied by a statute is constitutional. See, e.g., id., 97-1906, p. 7; 709 So.2d at 676. This does not mean, however, that the judiciary is without authority to act, because “[n]o sentence is per se constitutional.” State v. Conner, 09-1023, p. 4 (La.App. 4 Cir. 2/3/10); 30 So.3d 1132, 1134 (citing Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). The “imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment.... ” Cann, 471 So.2d at 703.

A sentencing judge is compelled by the Louisiana Constitution to determine whether a defendant is able to rebut the presumption of the constitutionality of a legislatively-mandated sentence by showing by clear and convincing evidence that “he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim- of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson, 97-1906, p. 8; 709 So.2d at 676 (punctuation and citations omitted). See also State v. Pernell, 13-0180, p. 16 (La.App. 4 Cir. 10/2/13); 127 So.3d 18, 29. “Mere argument — [unsupported^ by factual evidence — that a sentence is excessive is insufficient to carry the burden of proof.” Conner, 09-1023, p. 5; 30 So.3d at 1135.

The excessiveness of a sentence is a question of law reviewable by this Court under its appellate jurisdiction. See La. Const. art. V, § 10(B). A reviewing court should not set aside a sentence imposed by a trial court absent a manifest abuse of this discretion. See State v. Batiste, 06-0875, p. 17 (La.App. 4 Cir. 12/20/06); 947 So.2d 810, 820 (emphasis added). Our review should strive only to correct “abuses of the sentencing power” by the district judge, Sepulvado, 367 So.2d at 767, and not to attempt to impose sentences that we deem more appropriate. See State v. Soraparu, 97-1027 (La.10/13/97); 703 So.2d 608 (per curiam).

In reviewing a sentence for excessiveness, we ensure that the sentencing judge took into account certain considerations prior to placing a specific defendant on a particular point in the range of statutorily-permissible sentences. The Legislature has directed the trial courts to consider certain articulable criteria contained in La. C.Cr.P. art. 894.1 when handing down sentences and to state those considerations and their factual bases for the record. See La.C.Cr.P. art. 894.1 C. In evaluating whether the trial judge has abused its broad sentencing discretion, we first examine whether the court obeyed this legislative directive. See Sepulvado, 367 So.2d at 769.

The primary purpose of La. C.Cr.P. art. 894.1 is not to enforce rigid and mechanical compliance with its provisions, but to ensure that there is a factual basis for the sentence imposed. See Batiste, 06-0875, p. 18; 947 So.2d at 820. See also State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98); 708 So.2d 813, 819. Excessiveness “analysis is cumulative and focuses on a combination of these factors.” State v. Lathers, 444 So.2d 96, 97 (La. 1983). “[T]hese |1scriteria provide guidance as to whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence, if the sentencing judge does indeed determine that imprisonment rather than suspension of sentence or probation is the appropriate disposition.” Sepulvado, 367 So.2d at 767-68. While the trial judge is not required to recite the entire checklist of aggravating and mitigating factors contained in La.C.Cr.P. art. 894.1, the “record must reflect that the judge adequately considered the guidelines.” State v. Soco, 441 So.2d 719, 720 (La.1983). See also State v. Square, 433 So.2d 104, 110 (La.1983). This requires consideration of those “circumstances militating for incarceration, but also any mitigating factors,” Davis, 449 So.2d at 454, including the offender’s personal history, prior criminal record, the nature and seriousness of the offense, and the likelihood of rehabilitation or recidivism. See Soco, 441 So.2d at 720. See also State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982); State v. Telsee, 425 So.2d 1251, 1253 (La.1983).

Importantly, La.C.Cr.P. art. 894.1 is “not an exclusive listing of factors to be considered in imposing a sentence. Any and all relevant factors can and should be taken into account by the trial court.” State v. Lanclos, 419 So.2d 475, 478 (La.1982). “Permitting sentencing courts to consider the widest possible breadth of information about a defendant ‘ensures that the punishment will suit not merely the offense but the individual defendant.’ ” Pepper v. U.S., 562 U.S. 476, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011) (quoting Wasman v. U.S., 468 U.S. 559, 564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)). For example, the defendant’s truthfulness or lack thereof may be weighed by the court in sentencing but is not alone a sufficient basis for the imposition of a relatively harsh penalty. See Quebedeaux, 424 So.2d at 1014. See also State v. LaFleur, 391 So.2d 445, 447 (La.1980). A judge also has discretion to hear a defendant’s allocution 114presentencing and consider her statement when determining the appropriate sentence for that defendant. See La.C.Cr.P. art. 871 cmt. c. See also State v. Hamdalla, 12-1413, pp. 17-18; 126 So.3d at 628. Sentencing judges may also consider plea bargains and the details of those offers as circumstances surrounding the offense. Lanclos, 419 So.2d at 478.

In order to aid the judge in comprehensively evaluating a defendant under La.C.Cr.P. art. 894.1, a “court may order the Department of Public Safety and Corrections, division of probation and parole, to make a presentence investigation.” La.C.Cr.P. art. 875 A(1). A presentence investigation report is an excellent instrument to assist the sentencing judge in substantively evaluating the factors in Article 894.1 as well as provide us with a complete record in reviewing sentences for excessiveness. See Conner, 09-1023, pp. 4-5; 30 So.3d at 1135. See also La. C.Cr.P. arts. 881.3; 877. The criminal defendant has a right to examine this report as “[f]undamental fairness ... requires that the substance of all derogatory information which adversely affects his interest and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.” State v. Bosworth, 360 So.2d 173, 175 (La.1978) (internal quotations and citations omitted). “When, in imposing a heavy sentence, the trial court relies upon pre-sentence information which is materially false or which furnishes invalid information, the defendant must be given an opportunity to deny or explain such substantially significant misinformation.” Id. See also State v. Ray, 423 So.2d 1116, 1121 (La.1982). This is usually done through a sentencing hearing, at which time the defendant is allowed to introduce sentence-influencing factors and considerations. See Sepulvado, 367 So.2d at 769.

|1sWhen ruling on a claim of excessiveness, the importance of holding a full evidentiary hearing can hardly be overstated. See Conner, 09-1023, p. 5; 30 So.3d at 1135 n. 4. “The only opportunity for review of the sentencing decision is on direct appeal as there is no post-conviction review available on such claim.” Id. (citing State ex rel. Melinie v. State, 93-1380 (La.1/12/96); 665 So.2d 1172 (per curiam)). Moreover there is no post-conviction review available for claims of ineffective assistance of counsel at sentencing. See id. (citing State v. Thomas, 08-2912 (La. 10/16/09); 19 So.3d 466). Thus, as all other avenues of review are unavailable, a sentencing judge should permit a defendant to introduce evidence to substantiate her claim at the hearing on the motion, because, in the absence of evidence, there is nothing for this Court to review on appeal. See id., 09-1023, p. 5; 30 So.3d at 1135 (citing State v. Allen, 09-0813, pp. 6-7 (La.App. 4 Cir. 1/13/10); 30 So.3d 1024, 1027-28). Sentencing hearings are also a helpful practice to avoid remands to determine the basis of a sentence. See id. See, e.g., State v. Pernell, 14-0678 (La.App. 4 Cir. 10/15/14); 151 So.3d 940, 945. Errors committed in presentence investigations and sentencing hearings should be reviewed to determine if they caused prejudice to the defendant. See State v. Guiden, 399 So.2d 194, 200 (La.1981).

If we find that the district court properly considered the sentencing criteria in La.C.Cr.P. art. 894.1, we should then determine whether the defendant’s sentence shocks the court’s sense of justice in its disproportionality as to the facts and circumstances of this crime and this defendant. See State v. Reed, 409 So.2d 266, 267 (La.1982). In order to more thoroughly review sentences in this manner, courts have analyzed the sentence through a comparator. See Square, 433 So.2d at 110. See also Telsee, 425 So.2d at 1254; State v. Guajardo, 428 So.2d 468, 472 (La.1983); Hamdalla, 12-1413, p. 19; 126 So.3d at 629.

This review, however, must still only be for abuse of the trial court’s broad sentencing discretion. See State v. Walker, 00-3200, p. 2 (La.10/12/01); 799 So.2d 461, 462 (per curiam). An appellate court “shall not set aside a sentence for exces-siveness if the record supports the sentence imposed.” La.C.Cr.P. art. 881.4 D. “[G]reat weight must be given to [a sentencing judge’s] factual characterizations of the aggravating and mitigating circumstances justifying more severe punishment.” Sepulvado, 367 So.2d at 767. “[A] remand for resentencing is appropriate only when there appears to be a substantial possibility that the defendant’s complaints of an excessive sentence have merit.” Soraparu, 97-1027; 703 So.2d 608. (internal quotations and punctuation omitted).

B

We next examine the statutes under which Ms. Mosby was sentenced and determine the sentencing range mandated to be imposed in this case.

As previously stated, Ms. Mosby was convicted of distribution of cocaine, a violation of La. R.S. 40:967 A(2). The statutory sentencing range for a violation of this statute is a term of imprisonment of two to thirty years. See La. R.S. 40:967 B(4)(b). Following the imposition of a ten-year sentence at the original sentencing hearing, the district attorney then charged and adjudicated Ms. Mosby as a fourth felony offender under the Habitual Offender Law. This adjudication enhanced the 117sentencing range statutorily-mandated to be imposed upon Ms. Mosby to a term of imprisonment of 30 years to the remainder of Ms. Mosby’s natural life. This sentencing range was calculated by first examining the Habitual Offender Law, which provides in relevant part: “If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then ... [t]he person shall be sentenced to imprisonment ... for a determinate term not less than the longest prescribed for a first conviction [of the underlying, most recent offense] ... and not more than his natural life.... ” La. R.S. 15:529.1 A(4)(a). Thus, the sentencing judge’s imposition of a thirty-year sentence upon Ms. Mosby was, in fact, the minimum permitted as that sentence is the longest prescribed for a first conviction for distribution of cocaine.

C

Having determined that Ms. Mos-by received the minimum sentence permitted by statute, we next review that minimum sentence for excessiveness. We find that the sentencing judge did not abuse his considerable discretion in imposing the statutory minimum. The trial judge held a sentencing hearing during which Ms. Mosby was permitted but declined to introduce evidence to substantiate her claim; Ms. Mosby failed to rebut the presumption of the constitutionality of her sentence. The trial judge, in imposing sentence thereafter, substantively complied with the legislative directive to consider the factors set forth in Article 894.1.

Following Ms. Mosby’s conviction for distribution of cocaine and prior to her initial sentencing, the judge ordered that a presentence investigation be | ^undertaken and a report written. See La.C.Cr.P. art. 875. The presentence investigation report documented several relevant issues to Ms. Mosby’s sentencing. First, Ms. Mosby has an extensive criminal history. Ms. Mosby has been charged with ten and convicted of five other offenses over the course of her life. The presentence investigation report noted that Ms. Mosby’s “criminal activity began late in life.” Ms. Mosby’s first conviction for any offense occurred at age 52. In 1971 she was charged with attempted murder; those charges were eventually refused. Ms. Mosby was then accused of committing two crimes related to her ownership of the “Sorrento” bar in the uptown neighborhood of New Orleans in 1976 and 1977. No disposition was found as to those cases, however. In 1995, 1996 and 1997, she was charged with and convicted of possession of Schedule II controlled dangerous substances. In 1997 she was also charged with and convicted of possession of LSD. In 2006, Ms. Mosby was charged with theft of goods and unauthorized entry of a place of business. The theft charges were eventually dismissed, but Ms. Mosby was convicted of unauthorized entry. Finally, in 2011, fourteen days prior to being arrested for this charge, Ms. Mosby was arrested for possession with the intent to distribute cocaine. Those charges were still pending as of the creation of this presentence investigation report.

Second, Ms. Mosby is currently 72 years old. She has lived in New Orleans since she was four years old. Ms. Mosby obtained a GED and worked for South Central Bell for twenty years. Ms. Mosby began using crack cocaine when she was 48 years old. Her frequency of use increased as time passed. Ms. Mosby described her daily use as “casual” and stated she does not feel that her drug use was a problem because she has never turned to robbing, stealing, or prostitution to fuel 1 Ulher habit. The presentence investigation report states that Ms. Mosby is “unrepentant regarding her substance abuse.”

After the presentence investigation report was produced, a sentencing hearing was held during which the sentencing judge noted that the district attorney had not yet filed a bill charging Ms. Mosby under the Habitual Offender Law. The sentencing judge, proceeding with the hearing, read the contents of the report into the record, including Ms. Mosby’s criminal and social history. The court also noted Ms. Mosby’s willingness to participate in substance abuse programs and that she was offered an opportunity to plead guilty and accept a ten year sentence. The court also made several other comments. The judge expressed confusion as to why Ms. Mosby became involved with drugs so late in life and regret that he did not preside over her conviction in 1999 when there was still an opportunity to resolve her problems. The sentencing judge then noted that he had considered the relevant provisions of the Louisiana Code of Criminal Procedure, the facts of this case, and Ms. Mosby’s criminal history and imposed a ten-year sentence at hard labor in the custody of the Department of Corrections. Ms. Mosby did not request an opportunity to confess to the offense and continues to deny selling cocaine to Mr. Palmore. Ms. Mosby did not introduce any evidence or call any witnesses to testify in order to contradict the information contained in the presentence investigation. The sentencing range following her conviction for distribution of cocaine was two to thirty years. See La. R.S. 40:967 B(4)(b). Trial counsel for Ms. Mos-by failed to object to that sentencing.

Following that sentencing, the district attorney charged Ms. Mosby as a fourth felony offender under the Habitual Offender Law. At the multiple bill hearing, the prosecution presented evidence of the requisite underlying offenses to ^substantiate her status as a fourth felony offender. Ms. Mosby chose not to call any witnesses or introduce any evidence at this hearing either. Rather, counsel for Ms. Mosby argued that the sentence imposed upon Ms. Mosby should be below the minimum sentence mandated by the Habitual Offender Law. Counsel argued that Ms. Mos-by’s age and the lack of violent crime in her criminal history justified this downward departure. The sentencing judge then found Ms. Mosby to be a fourth felony offender. The judge noted that, in determining the appropriate sentence for Ms. Mosby, he had considered the relevant provisions of the Code of Criminal Procedure, the range of sentences permitted under the Habitual Offender Law, and Ms. Mosby’s criminal history. The sentencing judge then rejected Ms. Mosby’s counsel’s request for a downward departure and imposed the mandatory minimum sentence — 30 years at hard labor without the benefit of probation or suspension of sentence.

Based on this record, we cannot say that Ms. Mosby’s situation is one of those rare cases deserving of a downward departure from the minimum sentence permitted by the Habitual Offender Law. See Johnson, 97-1906, p. 8; 709 So.2d at 677. The sentencing judge properly considered Article 894.1 and other facts in imposing a sentence particularized to Ms. Mosby. As such, her sentence is not excessive under Article I, Section 20 of the Louisiana Constitution.

DECREE

The conviction of Doretha Mosby for distribution of cocaine is affirmed. The imposition of the minimum sentence of thirty years at hard labor without the possibility of probation or suspension of sentence is also affirmed.

AFFIRMED

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

hi dissent from the majority opinion. More specifically, I find that the mandatory thirty-year sentence imposed on this seventy-two-year-old grandmother, non-violent offender is excessive.

If the mandatory minimum sentence is constitutionally excessive then a downward departure is required under State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

In State v. Abbott, 94-1046 (La.App. 4th Cir.2/23/95), 650 So.2d 1223, this Court affirmed the defendant’s sentence in an appeal taken by the State, where the trial court made exhaustive findings regarding the excessiveness of the minimum sentence and the applicability of Dorthey. The trial court in that case found “that 12defendant’s youth, the facts of the instant case and the fact that defendant’s two prior convictions did not justify the statutorily mandated minimum sentence.” Abbot, 94-1046, p. 8, 650 So.2d at 1227.

Though a defendant may challenge his or her sentence, as excessive, the law imposes an onerous and impossible burden upon defendants. Since Abbott, supra, the Louisiana Supreme Court has explained that a trial judge may not rely solely upon the non-violent nature of the defendant’s instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. See Johnson, 97-1906, pp. 6-7, 709 So.2d at 676. Recently, in State v. Noble, the Louisiana Supreme Court reversed the trial court’s departure from the mandatory minimum sentence. Id., 12-1923, pp. 3-4 (La.4/19/13), 114 So.3d 500, 501. The defendant in Noble, who was tasked with supporting multiple children, had several convictions for the possession of small quantities of cocaine and marijuana. Yet, the Noble Court found that neither factor was “sufficiently narrow to qualify as exceptional,” and ordered the trial court to re-sentence the defendant in accordance with the statutory guidelines. Id. The increasingly high burden placed on offenders makes a downward departure in sentence practically unattainable.

In the instant case, the seventy-two-year-old defendant cares for her mother and daughter, and has repeated substance abuse convictions that have led her to being sentenced to the minimum sentence of thirty years as a multiple offender. Here, the elderly defendant committed a less violent underlying offense than the defendant in Abbott. A thirty-year sentence is practically a life sentence for this defendant. It makes no measurable contribution to acceptable goals of punishment, and is nothing more than a purposeless imposition of pain and suffering. See Johnson, supra. It shocks the sense of justice and is excessive under these circumstances. Accordingly, I would find that the trial court abused its sentencing discretion, vacate the thirty-year sentence, and remand the case for re-sentencing. I concur in the majority opinion in all other respects.

      . A sentence is the penalty imposed by the court upon a verdict of guilty. Sentence shall be pronounced orally in open court and recorded in the minutes of the court. See La. C.Cr.P. art. 871.

      . "[T]he purpose of the Habitual Offender Law ... is to discourage commission of successive felonies and to enhance punishment for subsequent felonies.” State v. Shaw, 06-2467, p. 17 (La.11/27/07); 969 So.2d 1233, 1243 (internal quotations omitted). The statute was enacted "as a deterrent and a warning to first offenders and as a protection to society by removing the habitual offender from its midst. The habitual offender statute does not create a separate offense or punish an individual for past crimes; rather, the statute increases punishment on the basis of an individual’s status as a repeat offender.” Id. (internal citations omitted).

      . The defendant was convicted of armed robbery, when he lost money at a poker game, left the game, and later returned and robbed the players.

      . It is noted that the defendant in Abbott was facing a mandatory 49 1/2 year sentence, while the defendant in Noble was facing a 13 1/3 year sentence.