author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Darren SCHMOLKE.
    No. 2012-KA-0406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant.
    Lloyd N. Frischhertz, Jr., Frischhertz Poulliard Frischhertz & Impastato, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

hThe district attorney appeals the trial court’s grant of Darren Schmolke’s motion under La.C.Cr.P. art. 532 A(5) to quash the bill of information charging him with a violation of La. R.S. 14:202 A, respecting a building contractor’s knowing failure to apply money received on account of a construction contract necessary to settle claims for material and labor due for the construction. Having reviewed the bill of particulars and conducted a hearing, the trial judge concluded that “it appears that the charge in the bill of information is not supported by the facts demonstrated” and then quashed the bill.

Upon our de novo review of the bill of information, the bill of particulars, and the quashal, we find that the trial judge did not restrict his consideration of the motion to the strictly legal issues raised by the bill of information and by the bill of particulars, but also considered factual defenses to the offense charged. Because we find that consideration of the factual defenses resulted in quashing of the bill of | ginformation, we reverse the ruling and remand to the district court for further proceedings. We explain our decision below.

I

“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.” La.C.Cr.P. art. 531. A motion to quash is appropriate whenever “[a] bill of particulars has shown a ground for quashing the indictment under Article 485.” La.C.Cr.P. art. 582(5). The specific ground under Article 485 which, it appears, Mr. Schmolke urged by his motion is “that the offense charged in the indictment was not committed.”

Here, the trial judge on motion of Mr. Schmolke required the district attorney under La.C.Cr.P. art. 484 “to furnish a bill of particulars setting forth more specifically the nature and cause of the charge against the defendant.” La.C.Cr.P. art. 484. The defendant’s motion to quash requires that the court determine from reviewing the bill of particulars that have been furnished “together with any particulars appearing in the indictment” whether there is a ground to quash the bill of information, and if there is such a ground to quash it. La.C.Cr.P. art. 485.

A judge’s consideration of a motion to quash is confined to questions of law and, as a general rule, does not extend to defenses based upon factual findings. We 13have compared the consideration allowed on a motion to quash an indictment to that of an exception of no cause of action in a civil suit and have stated: “the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” State v. Lagarde, 95-1497 p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103; see also State v. Bremer, 97-0456 (La.App. 4 Cir. 12/10/97), 704 So.2d 917. The motion to quash is a mechanism for consideration of pre-trial pleas, which are “pleas which do not go to the merits of the charge.” State v. Byrd, 96-2302 (La.3/13/98) 708 So.2d 401. “[T]he question of factual guilt or innocence is not before the court” at a hearing on the motion to quash. Id. at 411. While evidence may be adduced at a hearing, “such may not include a defense on the merits.” Id. at 411.

So long as the facts accepted as true can “conceivably satisfy an essential element of the crime,” the accused person can be compelled to stand trial for the charge. State v. Legendre, 362 So.2d 570, 571 (La.1978) (denial of motion to quash in aggravated battery case because “[according to the fair import of the words, in their usual sense dangerous weapon does not mean a concrete parking lot.”) Essentially, the inquiry is whether any conceivable set of the facts as alleged in the bill of information together with those specified in the bill of particulars (when particulars have been provided) if “found credible by the trier of fact” can support a conviction. State v. Advanced Recycling, Inc., 02-1889, pp. 9-10 (La.4/14/04), 870 So.2d 984, 989. And support for a conviction, of course, requires |4that any reasonable trier of fact considering the evidence in the light most favorable to the prosecution could conclude that every element of the offense charged has been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Lagarde, 672 So.2d at 1104.

Because the alleged facts are accepted as true, the decision on a motion to quash under Article 185 is solely a question of law, see Byrd, 708 So.2d at 411, and thus we review the trial judge’s ruling in this case under the de novo standard. Under this standard of review, we do not defer to any factual findings by the trial judge, and even more so here because any factual determinations by a trial judge at this time regarding the merits of the defense are unauthorized. See Byrd, 708 So.2d at 412.

II

In this Part we first consider the statutory violation with which Mr. Schmolke is charged by the district attorney, the accusation in the bill of information itself, and the specifics provided by the district attorney in the bill of particulars. Then, in order to better understand the trial judge’s ruling, we set out some factual matters from the preliminary hearing which the trial judge apparently weighed in his ruling.

A

Misapplication of payments by a contractor is prohibited under La. R.S. 14:202 A, which provides, in pertinent part:

|sNo person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.

Thus, the essential elements of the crime are: (1) the existence of a contract to construct, erect, or repair a building, structure, or other improvement; (2) the receipt of money on the contract; and (3) a knowing failure to apply the money received as necessary to settle claims for material and labor due under the contract. State v. Spears, 05-0964, p. 4, (La.4/4/06), 929 So.2d 1219, 1223.

The bill of information filed in this matter alleges that on July 13, 2009, Mr. Schmolke:

DID FAIL TO APPLY MONEY RECEIVED FROM ALVIN PHELPS AND/OR CATHERINE PHELPS ON ACCOUNT OF A CONTRACT FOR CONSTRUCTION, ERECTION, OR REPAIR OF A BUILDING, STRUCTURE, OR OTHER IMPROVEMENT TO SETTLE CLAIMS FOR MATERIAL ...

The bill of particulars further specified that:

1. The Defendant Darren Schmolke entered into a contract with Alvin Phelps and/or Catherine Phelps to reconstruct their home at 6849 Bellaire Drive. The contract was executed by the parties on or about September 11, 2008. Defendant’s obligations under the contract included paying all relevant subcontractors. Defendant failed to do so, resulting in two liens being placed upon the residence by Crest Mechanical and Masonry Products.
2. The Masonry Products lien amounts to $2,094.42, plus any relevant interest and penalties. The Crest Mechanical lien amounts to $12,000.00, plus any relevant interest and penalties.
3. The contracted amount was $210,540.00, to be paid to Defendant via a series of draws. The draw schedule is included in the contract (a copy thereof is already provided to defense). The Defendant completed work that resulted in payments totaling approximately $189,091.20. Copies of all checks written to Defendant have already been provided to defense.

_kB

At the time of the hearing on the motion to quash, the trial judge also took up the preliminary hearing in this matter. During the hearing, NOPD Detective Mike Kitchens testified that Alvin Phelps filed a complaint of contractor fraud with the Orleans Parish District Attorney’s Office. Detective Kitchens investigated the complaint and learned that Mr. Schmolke had contracted to complete a total reconstruction of the Phelps’ residence. The contract price was for $210,540.00. He learned that Mr. Schmolke failed to pay two subcontractors, which resulted in liens being filed on the Phelps’ residence.

Detective Kitchens then identified a number of checks totaling approximately $189,000.00 written by Mr. Phelps and made payable to Mr. Schmolke. The detective also identified two liens that were filed against the Phelps’ property by Crest Mechanical Construction and by Masonry Products.

Detective Kitchens confirmed that there was a difference of approximately $21,000.00 between the contract price and what was paid to Mr. Schmolke. The detective pointed out, however, that the project was never completed. Accordingly, he rejected the notion that the homeowners owed Mr. Schmolke any money.

Detective Kitchens acknowledged that he received a release of lien from Mr. Schmolke of one of the two liens which appears to have been in the amount, of $1,800.00. The detective confirmed that Mr. Schmolke provided him with documents that established that there were some items on the job that exceeded the contract allowances. He identified an invoice for countertops that exceeded the allowance in the contract by $1,400.00. During the preliminary hearing a 17stipuIation was entered that after the bill of information was filed, the final remaining lien was satisfied by Mr. Schmolke.

During the hearing on the motion to quash, Mr. Schmolke argued that the prosecution could not prove its case in four respects as follows: 1) that the State had no evidence that Mr. Schmolke misapplied funds; 2) that the homeowners failed to pay all amounts due under the contract; 3) that additional work was done outside the scope of the contract; and 4) that cost overruns contributed to the shortfall.

The prosecution opposed the motion to quash on grounds that the motion was based primarily on the substantive facts of the case and therefore should not be granted. The prosecution further commented that although defendant had asserted that the case was primarily a contract dispute, the fact of the matter was that Mr. Schmolke failed to adequately complete the re-construction of the home as agreed upon and then left the jurisdiction. As a result, the prosecution noted, the final fee was not paid to Mr. Schmolke.

Mr. Schmolke replied that the prosecution could not possibly prove its case because under the provisions of La. R.S. 14:202 A, all money owed under the contract must have been paid, and Mr. Schmolke argued that the bill of particulars established that this was not the case.

In granting Mr. Schmolke’s motion to quash, the trial judge ruled:

The defendant is charged with one count of misapplication of payment under La. R.S. 14:202. The charge arises out of a contract between the defendant and Alvin and Catherine Phelps to reconstruct their home. According to the State response to the bill of particulars, the contracted amount was $210,540.00 to be paid through a series of draws. The defendant completed work that resulted in payments totaling $189,091.20. Two subcontractor liens form the basis for the current case. At the hearing, it was established that the Masonry Products lien was not for work performed under the contract, but an |sextra, and that the lien has since been satisfied. As further argued by the defense, the Bill of Particulars states that the defendant is still owed $21,443.80 under the contract. The defense also argues that the Defendant has paid and satisfied the Crest Mechanical lien and thus an additional amount is owed the defendant. It appears that the charge in the bill of information is not supported by the facts demonstrated. The dispute here is purely civil. The motion to quash is therefore GRANTED under La.C.Cr.P. art. 582(5).

[all emphasis added]

As we have indicated by our emphases, the trial judge clearly did not accept as true the facts exclusively as they are set forth in the bill of information and the bill of particulars. Notably, the trial judge apparently inferred from the bill of particulars that Mr. Schmolke was owed $21,448.80 by the homeowners under the contract; no such statement of fact is set forth in the bill of particulars. Without a doubt, the trial judge’s reasons reflect a view that Mr. Schmolke has a defense on the merits. But, of course, the guilt or innocence of Mr. Schmolke was not before the trial judge on the motion to quash.

Ill

The sole legal question for us to determine (as it was for the trial court) on Mr. Schmolke’s Article 485 motion to quash is whether the bill of information as modified (or specified) by the bill of particulars, while accepting as true the facts alleged in the bills, must be quashed because the offense charged in the indictment was not committed. See La.C.Cr.P. art. 485. Thus, our primary reference in that inquiry is the statute under which Mr. Schmolke is charged.

As expressed earlier, the essential elements of the offense are the existence of a contract to construct, erect, or repair a building, structure, or other improvement; the receipt of money on the contract; and a knowing failure to apply the money received as necessary to settle claims for material and labor due under the contract. See Spears, supra. Reading factual allegations (which we accept as |9true) of the bill of information and the bill of particulars, we are compelled to conclude that a contract to construct a building that existed between the owner and Mr. Schmolke; that Mr. Schmolke received money on the contract; and that Mr. Schmolke failed to pay the charges of two subcontractors, who placed liens against the homeowners’ property. Thus, as the issue is presented to us, there are sufficient facts alleged which, if the jury or other trier of fact found them credible, could support a conviction in this specific intent crime. See Lagarde, 672 So.2d at 1104 (“If the state can prove these facts, a simple reading of the first degree murder statute would lead to defendant’s conviction.... This is a case for the jury to decide if specific intent is proved beyond a reasonable doubt.”)

The trial judge erred when he considered facts not set forth in the bill of information or in the bill of particulars as well as when he weighed the factual allegations which were set forth in the bills. He also appears to have inferred from the factual allegations of the bill of particulars that because there was an incomplete payment by the homeowners of the full amount of the construction contract, there could be no misapplication. Such considerations cannot ever support a ruling to quash under Article 485.

IV

In this matter we, however, have observed a deficiency in the bill of information which was not precisely urged to the trial judge and which has not been argued or briefed before us. Because the identified deficiency can be easily cured on remand by the district attorney’s amendment of the bill of information |1fland the parties have not had an opportunity to yet address the deficiency, we decline to quash on our own motion under Article 485 the bill of information at this stage of the proceedings.

The district attorney indicates that he is charging Mr. Schmolke under the provisions of La. R.S. 14:202 A. The bill of information charges that Mr. Schmolke failed to apply the money received from the homeowners to the construction project; it does not allege that he knowingly failed to apply the money. Proof of misapplication of the funds, however, is not enough. See Spears, 05-0964, p. 5, 929 So.2d at 1224. “The State [is] required to prove that the misapplication was made knowingly.” Id. Section 202 A is a specific intent crime. See La. R.S. 14:10(1) (“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”). See also State v. Cohn, 00-0313, p. 8 (La.4/3/01), 783 So.2d 1269, 1275 (in emphasizing the “knowing misapplication” element of the statute stated that § 202 A “clearly does not criminalize a bad business deal made by a contractor who otherwise applies all of the funds received under the contract for legitimate expenses and claims for materials and labor in the course of the project”); State v. Weems, 595 So.2d 358, 360 (La.App. 2nd Cir.1992) (in reversing conviction held that “the state did not prove beyond a reasonable doubt defendant knowingly misapplied part of the $40,000 received, but only proved one materialman was not paid.”)

The bill of information “shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” La.C.Cr.P. art. 464. “It shall state for each count the official or customary citation of the statute |nwhich the defendant is alleged to have violated.” Id. “In offenses requiring only a general criminal intent, the indictment need not allege that the act was intentionally done.” La. C.Cr.P. art. 472. For offenses which require specific intent or knowledge, however, the bill of information “following the general rule of Art. 464, must state the special mental element of the crime.” Official Revision Comment — 1966 (emphasis added) under La.C.Cr.P. art. 472.

In this case, the district attorney, however, has not stated the special mental element of this offense in the bill of information (or in the bill of particulars) and did not cite the statute in either bill. But, because the deficiency which we note is a ground set out in La.C.Cr.P. art. 532(2), the court may allow amendment to correct the defect. And, as we stated earlier, the matter can be easily addressed on remand if Mr. Schmolke timely files a motion to quash on this ground. See La.C.Cr.P. art. 535 A(2).

CONCLUSION

It is true that the proof required to convict under § 202 A is “more than simply proof that a contractor has left unpaid claims for materials and labor at the end of a construction contract.” Cohn, 00-0313, p. 8, 783 So.2d at 1275. And it may well be that Mr. Schmolke has a good defense on the merits, but the fact that a defendant “may have a good defense is not sufficient grounds to quash the indictment.” State v. Masino, 214 La. 744, 749, 38 So.2d 622, 623 (La.1949).

Whether the facts, accepted as true as set forth in the bill of information as modified by the bill of particulars, sufficiently allege that a defendant committed the offense charged is solely a question of law. From the facts before us it is | ^conceivable on these facts, if believed, that a reasonable trier of fact could find beyond a reasonable doubt all elements of the offense charged. Thus, the motion to quash, which challenges under Article 532(5), fails.

DECREE

We reverse the ruling sustaining the motion to quash. The matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

      . A single contradictory hearing was conducted on the motion for a bill of particulars, a motion for discovery, the preliminary hearing, and the motion to quash.

      . The other grounds in Article 485 are "that the defendant did not commit it, or that there is a ground for quashing the indictment.”

      . There are other provisions of Article 485 relating to curing any deficiency which are not pertinent to our consideration in this case. But see Part IV, post.

      .Another similarity between the motion to quash under Article 485 and the exception of no cause of action is that both may be raised by the court on its own motion. See La. C.C.P. art. 927 B.

      . Other sections of the statute make provision for the grade of the offense (misdemeanor or felony) dependent upon the amount misapplied and restitution to the victim. None of these sections are at issue in this case.

      . In this regard, we observe that under the facts of Spears, supra, the construction contract established a price of $196,000 for the completion of two chicken houses, of which only $176,000.00 was paid to the contractor; the Louisiana Supreme Court affirmed the conviction notwithstanding the fact the defendant had not been paid the full amount of the contract.

      . See La.C.Cr.P. art. 461.

      . There is no short form for charging a violation of La. R.S. 14:202 A. See La.C.Cr.P. art. 465; cf. State v. Gibson, 460 So.2d 689 (La.App. 1st Cir.1984).


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Leon GUTIERREZ and Vicki Gutierrez v. Christopher KELLER, City of New Orleans, DEF Insurance Company, and XYZ Insurance Company.
    No. 2012-CA-0987.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Jeremy K. Lee, Attorney at Law, Houston, TX, for Plaintiff/Appellant.
    Derek M. Mercadal, Assistant City Attorney, Kimlin S. Lee, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, Plaintiffs, Leon and Vicki Gutierrez, appeal the trial court’s dismissal of their claims against defendants, Christopher Keller and the City of New Orleans. We find that the trial court was not manifestly erroneous or clearly wrong and affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs filed a petition for damages allegedly suffered on July 8, 2006, at the intersection of North Rampart Street and Saint Ferdinand Street, where they were involved in an automobile accident with a “sprint” unit operated by defendant, Christopher Keller.

At the time of the incident, Mr. Keller was a paramedic employed with the City of New Orleans in the process of responding to a code call for assistance. With him as a guest passenger was Dr. Christiane Ei-sele. While traveling south on St. Ferdinand Street, with his lights and sirens activated, Mr. Keller approached a stop sign at the intersection of North Rampart Street and noticed that his view was obstructed by an illegally parked cargo van. He stopped at the stop sign and | ¡.inched forward onto North Rampart Street in order to determine whether it was safe to cross the intersection. By the time he obtained a visual, Mr. Keller observed the Gutierrez vehicle. Believing that his unit would be struck, he attempted to clear the intersection as he had no time to reverse. Mr. Gutierrez, who was traveling eastbound on North Rampart Street, applied his break in attempt to avoid the collision. However, rather than turn away from the “sprint” unit, he turned into it. Keller’s unit sustained minor damage to the rear while the front portion of the Gutierrez vehicle had received minor damage.

After a bench trial, the trial court entered judgment in favor of the defendants, dismissing the plaintiffs’ claims with prejudice. The trial court found that the plaintiff-driver, Mr. Gutierrez, failed to recognize and yield to the “sprint” unit that had activated its lights and sirens. It further found that Mr. Gutierrez had the last clear chance to avoid the accident; however, rather than turn his vehicle away from the “sprint” unit, he turned his vehicle toward it. From the judgment dismissing their claims, the plaintiffs filed the instant appeal.

STANDARD OF REVIEW

It is well-settled in Louisiana that under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court determines that it is manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126, p. 5 (La.7/6/06), 935 So.2d 646, 650 (citing Smith v. Louisiana Dept. of Corrections, 1993-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); and Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). Accordingly, to reverse a factfinder’s determinations, an appellate court must review the record in its entirety and find |anot only that a reasonable factual basis does not exist, but also that the record establishes the factfinder is clearly wrong or manifestly erroneous. Id.

Likewise, an appellate court cannot reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, 279. Where there are two permissible views of the evidence, the factfinder’s determinations cannot be manifestly erroneous or clearly wrong; however, where documents or objective evidence so contradict the witness’s story, a court may find manifest error. Salvant, 2005-2126 at p. 5, 935 So.2d at 650 (citing Rosell, supra at 844-45). Conversely, where such factors are not present, and a factfinder’s determination is based on its decision to credit the testimony of one or more witnesses, “that finding can virtually never be manifestly erroneous or clearly wrong.” Id.; see also Rosell, supra.

DISCUSSION

Plaintiffs argue that the trial court committed manifest error when it found no negligence on behalf of defendants, Keller and the City of New Orleans. In support of this argument, plaintiffs contend that: 1) Keller was the disfavored driver; and 2) the immunity provisions that apply to emergency vehicles are not applicable to this case.

Duty of Motorist at a Stop Sign

In support of their assignment of error, the plaintiffs first argue that Mr. Keller was the disfavored driver since he had the stop sign and failed to make certain that it was safe to cross the intersection. They further assert that they could not avoid the accident.

14Mr. Keller’s travel was controlled by a stop sign at the intersection of St. Ferdinand and North Rampart Street. La. R.S. 32:123 sets forth the duty of a motorist confronted with a stop sign. After stopping, the statute mandates that a driver “yield the right-of-way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.” La. R.S. 32:123(B).

Louisiana courts have consistently held that a driver confronted with a stop sign at an intersection must bring his vehicle to a stop, appraise the traffic, and make sure the way is clear before he enters the intersection. McElroy v. Wilhite, 39,393, 39,394, p. 3 (La.App. 2 Cir. 5/18/05), 903 So.2d 627, 631. A driver must also look for and then evaluate oncoming traffic before proceeding. Id., 39,393 at p. 4, 903 So.2d at 631. The duty also includes looking a second time before entering. Id.; see also Continental Ins. Co. v. Duthu, 235 So.2d 182 (La.App. 4 Cir.1970). Moreover, in Louisiana, if a motorist fails to see what he should have seen, the court examines his subsequent conduct on the premise that he did see what he should have seen. Fernandez v. General Motors Corp., 491 So.2d 633, 636-37 (La.1986).

Stopping, therefore, does not fully discharge the duty of a driver negotiating an intersection such as the one presented in the case sub judice. Rather, Mr. Keller had a duty not only to stop at the sign, but to make sure after having stopped that it was safe to proceed further through the median and across the eastbound lanes of travel on North Rampart. See Klaveness v. Massey, 1999-867, p. 4 (La.App. 5 Cir. 2/16/00), 756 So.2d 538, 542. See also Atwood v. State Farm Auto. Ins. Co., 1995454, pp. 3-4 (La.App. 5 Cir. 12/13/95), 666 So.2d 1187, 1190 (duty to keep a proper lookout).

Un contrast to the above-cited duty of the motorist confronted with a stop sign, the duty of the motorist traveling on the favored street is quite minimal as noted in Fernandez v. Gen. Motors Corp., supra, wherein the Supreme Court stated:

A motorist on a right-of-way street is entitled to assume that motorists on the disfavored street approaching a stop sign will obey the traffic signal and will stop, look and yield the right of way to traffic proceeding on the favored street. Of course, once a right-of-way motorist in the exercise of ordinary vigilance sees that another motorist has failed to yield the right of way, a new duty evolves on the right-of-way motorist to take reasonable steps to avoid an accident if there is time enough to afford him a reasonable opportunity to do so. (Citations omitted.)

Fernandez v. Gen. Motors Corp., 491 So.2d at 636. With regard to the favored motorists’ duty, the courts have clarified, noting:

Furthermore, it is only in the exceptional case where the right of way motorist could have avoided the accident by the exercise of the very slightest degree of care that he will be considered guilty of negligence.

See Modica v. Manchester Ins. & Indemn. Co., 284 So.2d 791 (La.App. 4 Cir.1973); McElroy v. Wilhite, 39,393 at p. 4, 903 So.2d at 631; Edwards v. Pierre, 2008-0177, p. 8 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 655.

Citing to McElroy, supra, and Modica, supra, the plaintiffs agree that Mr. Keller would be negligent for proceeding into the path of oncoming vehicles unless the plaintiffs could have avoided the accident by exercising the “slightest degree of care.” To support their conclusion that Mr. Keller was 100% negligent in causing the accident, they refer to Mr. Keller’s testimony that he entered the intersection although his view was obstructed. They also refer to his testimony that he did not believe that Mr. Gutierrez could have avoided the accident.

However, Mr. Keller also testified that he stopped at the intersection and inched forward to determine whether it was safe to cross. Most significantly, both | ^drivers testified that Mr. Gutierrez turned into rather than away from the “sprint” vehicle. In its reasons for judgment, the trial court explicitly relied on this fact as the basis for its finding that Mr. Gutierrez could have avoided the accident by using the slightest degree of care.

Where there are two permissible views of the evidence, the factfinder’s determinations cannot be manifestly erroneous or clearly wrong. Salvant, 2005-2126, p. 5, 935 So.2d at 650. Since the trial court’s conclusions are supported by the record, we find that its ruling was not manifestly erroneous.

Immunity

Next, the plaintiffs argue that the immunity provisions provided to emergency vehicles do not apply to this case.

The immunity provision applicable to emergency vehicles is found in La. R.S. 32:24, and provides:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible 17or visual signals, including the use of a peace officer cycle rider’s whistle, sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

In discussing the dual standard, the Louisiana Supreme Court determined that “[i]f, and only if, an emergency vehicle driver’s actions fit into subsections A, B, and C of La.Rev.Stat. 32:24, an emergency vehicle driver will only be held liable only for actions which constitute reckless disregard for the safety of others.” Lenard v. Dilley, 2001-1522, p. 6 (La.1/15/02), 805 So.2d 175, 180. The emergency vehicle driver’s actions will be gauged by the standard of due care when the actions do not fit subsections A, B, and C. Id.

The plaintiffs do not dispute the fact that Mr. Keller was responding to an emergency call in an authorized emergency unit at the time of the accident. Thus, subsection A is met. Rather, they argue that Mr. Keller’s actions did not conform to the requirements of subsections B, C, and D.

Plaintiffs aver that Mr. Keller proceeded past the stop sign without slowing down or stopping as was necessary for safe operation, disregarding subsection B. As to subsection C, the plaintiffs assert that the emergency lights and siren were insufficient to warn motorists of their approach. They highlight the fact that Mr. Keller admitted the emergency lights on the “sprint” unit were more difficult to see during the day. They also contend that they did not hear the siren. As to subsection D, the plaintiffs maintain that Mr. Keller did not exercise due regard for the safety of all persons when he inched out then “pulled totally into the blind | ^intersection.” Finally, the plaintiffs argue that even if this Court determines that the subsections of A, B, and C are satisfied, the reckless disregard standard should apply to find Mr. Keller at fault in causing the accident.

As already discussed, the trial court determined that Mr. Keller stopped at the stop sign, and then inched forward to determine whether he could safely cross North Rampart Street. It further determined that Mr. Gutierrez failed to recognize and yield to the “sprint” vehicle which was using its emergency lights and signal. The trial court also stated that the police report contained a statement from a now-deceased witness that the siren was activated. These factual findings are supported by the testimony of Mr. Keller and Dr. Eisele.

In support of their argument, plaintiffs cite to Spears v. City of Scott, 2005-230 (La.App. 3 Cir. 11/2/05), 915 So.2d 983, where the appellate court found that the police officer’s actions in approaching and then continuing on through the intersection constituted gross negligence and that the officer’s siren was insufficient to warn motorists of his immediate approach to the intersection. In Spears, the appellate court noted that Subsection (B)(2) of LSA-R.S. 32:24 allows the driver of an emergency vehicle to proceed past a stop signal, but only after slowing down or stopping “as may be necessary for safe operation.” The trial court found that the driver “came to a rolling stop at the intersection, but that he did not continue to monitor traffic when he entered the intersection, even though he was traveling through the intersection against a red light.”

Spears can be distinguished from the instant case. In Spears the officer failed to maintain a lookout before he proceeded. Therefore, the immunity provisions of LSA-R.S. 32:24 were inapplicable. In the instant case, there is no ^evidence that Mr. Keller failed to maintain a lookout as he proceeded into the roadway. Likewise,' the record fails to support a claim for gross negligence.

Pursuant to our review of the record, we cannot find the trial court’s conclusions to be manifestly erroneous or clearly wrong.

CONCLUSION

Accordingly, the judgment of the trial court dismissing the plaintiffs’ claims is affirmed.

AFFIRMED

      . Mr. Keller testified that a sprint unit supplements the response for ambulances. The "sprint” unit he was driving was a Ford Explorer, which had a light bar across the top and numerous decals identifying the vehicle as an emergency medical services unit. It had the same equipment as an ambulance, just less, and it could make a transport to the hospital for minor complaints. At times, physicians would ride in the units allowing the unit to respond to more critical calls where a patient would benefit from having a physician on scene.


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

text:
    STATE of Louisiana v. Henry FOSTER.
    No. 2012-KA-0295.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Mary Constance Hanes, 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).
   MAX N. TOBIAS, JR., Judge.

| jThe defendant, Henry Foster (“Foster”), appeals his convictions and sentences for two counts of simple burglary. Finding no patent errors or merit to the defendant’s single assignment of error, we affirm his convictions and sentences.

Foster was charged by bill of information on 9 June 2010 with two counts of simple burglary of an automobile, violations of La. R.S. 14:62. He pleaded not guilty at his 14 June 2010 arraignment. The trial court denied his motions to suppress the evidence and the statement. Foster twice sought supervisory review of the denial of his motion to suppress the evidence. This court denied both writ applications.

Trial was held before a six-person jury on 16 March 2011, but the jury was unable to reach a verdict on either count, and a mistrial was declared. Subsequently, on that same date, Foster was advised of and waived all his rights, |2and pleaded guilty as charged to both counts pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He waived all delays and was sentenced to twelve years at hard labor on each count, both sentences to be served concurrently. On that same date the state filed a bill of information charging the defendant as a second-felony habitual offender relative to the second count. After being advised of and waiving all his rights, Foster pleaded guilty as charged to being a second-felony habitual offender, whereupon the trial court vacated the sentence originally imposed and resentenced him to twelve years at hard labor. This timely appeal followed.

I.

A.

New Orleans Police Department (“NOPD”) Officer Munish Tanewar was patrolling at around 3:00 a.m. on Friday, 23 April 2010, near the intersection of Bar-onne and Foucher Streets in New Orleans, when he observed Foster. Foster was bleeding from his right arm and was carrying a tool box, a “flat case,” and one or more other items. Officer Tanewar and his partner, Officer Anthony Stovall, stopped him to see why he was bleeding and if he needed assistance. Foster informed Officer Tanewar that he had been in an altercation with two black males “around the corner.” He described Foster as nervous, and the officers asked to see his identification. At that time defendant produced a wallet. He also had a second wallet in his hand that he handed over. Officer Tanewar testified that the second wallet had an insurance card sticking out from it bearing the address 1930 General Taylor Street.

When the officers asked Foster who lived at the address, he replied that the wallet belonged to his wife and that he did not know who the person (presumably the one whose name was listed on the insurance card) was. Officer Tanewar stated Isthat the police had been getting complaints of automobile burglaries in the area, so they detained Foster and relocated to 1930 General Taylor Street. At that location Officer Tanewar observed an Infinity automobile with the right-side passenger window half-way down. The inside of the vehicle appeared to have been ransacked. The officers knocked on the door of 1930 General Taylor, and the owner appeared. The owner stated that he had left his window half-way down, but with the door locked. He further stated that had not given anyone permission to enter his vehicle, and that the wallet with the insurance card had been placed inside the glove box. The victim’s name was on the insurance card that had been inside the wallet found in the defendant’s possession. The officers then advised Foster of his Miranda rights.

Officer Tanewar testified that the tool box Foster was carrying had some broken glass on it. He contacted another officer who canvassed the area, locating a pickup truck in the 4000 block of Baronne Street with its right side rear window smashed. The officers knocked on the front door of the owner’s residence, and he appeared and observed that the vehicle was damaged and had been ransacked. The owner said he had placed the toolbox and a set of jumper cables on the back seat of the truck. These items were in the possession of Foster when Officer Tanewar and his partner first saw him.

On cross examination Officer Tanewar confirmed that he never found any witnesses who had observed Foster break into either of the vehicles, and that he had not been responding to any calls or complaints that evening. He had no descriptions or calls of anyone matching Foster’s description breaking into the vehicles. The officer confirmed that at the time Foster was walking down the street he was not engaged in any criminal activity. He further confirmed that in his |4report he stated that he elected to conduct a suspicious person stop. Officer Tanewar also confirmed that upon being stopped, Foster told them he did not need any medical attention. He also testified that before he asked the defendant for his identification he asked him why he was bleeding from his arm, and that he stated he had been in a physical altercation with two males and that as they drove off in their vehicle he grabbed the tools from the back of their truck. That is the point when he asked Foster for his identification. Foster first produced his own wallet, after which he retrieved from his back pocket the other wallet that had the exposed insurance card. Officer Tanewar stated that he could see “1930 General” on the card, but he could not read the rest of the address.

The officers did not place Foster in handcuffs when they put him in the back of the police car to transport him to 1930 General Taylor Street. However, Officer Tanewar confirmed that Foster could not have gotten out of the police car if he had wanted to, and that he was not free to leave at that time. Officer Tanewar confirmed that the Crime Lab was called out and that they dusted for fingerprints but were unable to find any. Foster was advised of his rights and placed in handcuffs before the officers went to the Baronne Street location of the other vehicle burglary. The officer recalled that the owner of the second vehicle, the pickup truck, stated that his truck was locked and secure at 9:00 p.m. the prior evening. The Crime Lab did not find any fingerprints at that scene either.

On redirect examination Officer Tane-war stated that the location where they first observed Foster was two blocks away from the General Taylor Street vehicle burglary and four blocks away from the Baronne Street vehicle burglary. He confirmed that when he first detained Foster, he felt that to take him two blocks ^around the corner would have quickly dispelled or confirmed any suspicious activity.

NOPD Officer Francis Jarrott took a statement from Foster on 23 April 2010 after advising him of his rights. He repeated the story he had given the arresting officers — he was attacked by two unknown males and that during the course of fending off the attack he received an injury to his right hand and gained possession of the toolbox.

B.

At trial, Officer Tanewar testified again that the officers stopped to check on Foster’s health status because he was bleeding; Foster was carrying a toolbox and jumper cables, and the officer noticed that the toolbox had what appeared to be broken motor vehicle glass on it. Foster had explained that he had grabbed the items from a truck in which his attackers were driving off. Officer Tanewar testified that when the defendant produced his wallet to show some identification, he also produced another wallet that had a piece of paper sticking out. He also stated that the insurance card had an address of 1980 General Taylor written on it, and that Foster claimed the wallet containing the card belonged to his mother. The officer stated that he asked Foster why he was carrying his mother’s wallet, he started to mumble words and that he did not know what the defendant was talking about. These things led the officers to believe Foster may have committed a crime. Officer Tanewar testified that the officers “detained him just to figure out, you know, what was really going on.”

Officer Tanewar and his partner transported Foster to 1980 General Taylor, approximately four blocks away (contradicting the distance he had testified to at the motion to suppress hearing) from where they had first encountered him, where | r,they observed a vehicle matching the vehicle listed on an insurance card contained in the wallet. The officers gave the owner back the wallet Foster had had in his possession, and then relocated to the 4000 block of Baronne Street, approximately two blocks away (contradicting the distance he had testified to at trial — four blocks) from where they first encountered the defendant. There, they observed a white pickup truck with a right rear window smashed. The window had the same type glass that had been on the toolbox. The owner of the vehicle identified the property in Foster’s possession as his. Officer Tanewar confirmed on cross examination that when he first saw Foster he did not see the second wallet, apparently referring to the one with the insurance card in it.

Officer Tanewar admitted on cross examination, after being shown one of his police reports prepared in the matter, that he had indicated “no injury” in the section of the report inquiring if the arrested individual had any injuries. Officer Tanewar confirmed that his superior had told him about burglary complaints in the area where Foster was first seen, and that the officers needed to patrol that area. He admitted that they were not responding to complaints of anyone matching Foster’s description breaking into any cars. Officer Tanewar confirmed on cross examination that he stopped Foster because he could see blood dripping down his arm. He further admitted that it turned into a suspicious person stop, but denied that Foster dropped the items he was carrying and ran. Officer Tanewar testified on redirect examination that his two police reports depicted a cut on Foster’s right elbow.

NOPD Officer Anthony Stovall was partnered with Officer Tanewar at the time they stopped Foster at approximately 3:00 a.m. Foster had blood trickling down his right arm, and he was in possession of several items — an orange case and |7a yellow and black case, a pack with jumper cables in it, and a can. He identified a photograph of the items. He testified that the area in which he and Officer Tanewar were patrolling had been experiencing a high rate of burglaries. When the officers stopped Foster to ask if he was okay, Foster was sweating profusely. Foster told the officers about the alleged fight, but could not say where it happened, only that it had been around the corner. He said two guys jumped out of a truck and he started fighting with them. He also said he took the items off the truck.

Officer Stovall stated that they asked Foster if he had any identification. He said Foster pulled out a wallet but exclaimed: “Oh, no, that’s not my wallet.” Officer Stovall said he told the defendant to “Give it here.” On subsequent cross examination, Officer Stovall testified that when asked for identification Foster pulled out a wallet, but exclaimed: “Oh, this is not — .” At that point (according to his testimony on cross examination) Officer Stovall said, “No, give me that.” Foster then pulled another wallet from his pocket. The first wallet had a zipper and a piece of paper sticking out that had an address of 1930 General Taylor Street. Officer Sto-vall asked Foster if he lived at that address, and he replied in the negative, stating that it was his wife’s wallet. Officer Stovall asked Foster the name of his wife, and he replied that he did not know why he had to tell the officer his wife’s name. Officer Stovall subsequently testified on cross examination that Foster refused to tell them the name of his wife. That prompted the officers to go to the General Taylor Street address.

Officer Stovall confirmed that during his investigation he ascertained that Foster did not reside at 1930 General Taylor and that he had never been inside the residence. The vehicle listed on the insurance card in the wallet had been [^ransacked, with papers spread on the floor and the seat. They went to the nearby Baronne Street location where a truck with a broken window had been located because Foster had in his possession items that had not been in the vehicle burglarized on General Taylor Street. The truck was found with its rear window smashed out. The orange toolbox Foster had been carrying when he was first seen by the officers had broken glass on it. Officer Stovall confirmed on cross examination that before the officers stopped Foster he could see blood trickling down the defendant’s arm. He admitted that they stopped Foster because of that and because he was sweating profusely. Officer Stovall also confirmed that Foster was not stopped solely because of concern for his health but also because he looked suspicious. They were in a marked police unit and were in full uniform. The officer confirmed that Foster did not run, but stood there holding the toolbox with glass on it.

NOPD Sergeant Nicole Barbe testified that on 23 April 2010 she was assigned to the Second District Night Watch, and supervised the investigation of Foster. Sergeant Barbe stated that police were having a problem with automobile burglaries in that area, and so had assigned a two-man unit to patrol the area looking for suspicious activity. She met Officers Tanewar and Stovall near the intersection of Foucher and Baronne Streets and subsequently drove around the neighborhood looking for vehicles that might have been burglarized. She found a white pickup truck in the 4000 block of Baronne Street with a smashed out window. The heavily-tinted auto glass matched the broken glass that was on the toolbox in the defendant’s possession.

Sergeant Barbe testified on cross examination that when she first arrived on the scene, Foster was bleeding. He was not in a police car, but the sergeant did not I «recall whether Foster had been handcuffed. When she discovered the white pickup truck with the broken glass, she checked the license plate to get the address of the owner and rang the doorbell until the owner came to the door.

Brook Fabacher, the owner of the white pickup truck, testified identifying his property stolen from his truck. He identified crime scene photos of the scene. He stated that he did not know of Foster prior to that morning in the aftermath of the break-in, and he did not give Foster permission to enter his truck and remove anything therefrom.

Orleans Parish Sheriffs Office Sergeant Harry Henry identified an arrest register for Foster dated 28 April 2010, reflecting Foster was booked with simple burglary and possession of stolen things.

II.

A review of the record reveals no errors patent on the face of the record.

III.

In his sole assignment of error, Foster argues that the trial court erred in denying his motion to suppress the evidence.

Warrantless searches and seizures fail to meet constitutional requirements unless they fall within one of the narrow exceptions to the warrant requirement. State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901; State v. Brown, 09-0722, p. 8 (La.App. 4 Cir. 2/10/10), 32 So.3d 939, 945. At trial of a motion to suppress, the state has the burden of proving the admissibility of all evidence seized without a warrant. La. C.Cr.P. art. 703 D; State v. Jackson, 08-0286, p. 5 (La.App. 4 Cir. 4/29/09), 11 So.3d 524, 529; State v. Robinson, 08-0652, p. 19 (La.App. 4 Cir. 5/13/09), 11 So.3d 613, 624. A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, given that the court has the | ^opportunity to observe the witnesses and weigh their credibility. Robinson, 08-0652, pp. 19-20, 11 So.3d 613, 624; State v. Neville, 08-0014, pp. 6-7 (La.App. 4 Cir. 6/4/08), 986 So.2d 884, 888. A trial court’s ruling on a motion to suppress the evidence will not be disturbed absent an abuse of discretion. State v. Ratliff, 12-1616 (La.10/26/12), 99 So.3d 51, citing State v. Montejo, 06-1807, p. 21 (La.5/11/10), 40 So.3d 952, 967. When reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider pertinent evidence given at trial of the case. Robinson, supra; State v. Craft, 03-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363.

The Fourth Amendment of the United States Constitution and La. Const. Art. I, § 5 protect persons from unreasonable searches and seizures. In State v. Martin, 11-0082, p. 5 (La.10/25/11), 79 So.3d 951, 955, the Court discussed when a “seizure” occurs, for constitutional purposes, as follows:

Federal jurisprudence has concluded that a “seizure” occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. This court has held, “[u]nder Louisiana’s slightly broader definition of the term, a seizure may also occur ‘when the police come upon an individual with such force that, regardless of the individual’s attempt to flee or elude the encounter, an actual stop of the individual is virtually certain [to occur].’ ” State v. Sylvester, 2001-0607, p. 3 (La.9/20/02); 826 So.2d 1106, 1108, quoting State v. Tucker, 626 So.2d 707, 712 (La.1993).

Police may briefly detain an individual in a public place whom they reasonably suspect has committed, is committing, or is about to commit an offense, and demand of him his name, address, and an explanation of his actions. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dobard, 01-2629, p. 3 (La.6/21/02), 824 So.2d 1127, 1129-30. “Reasonable suspicion” is something less |nthan probable cause, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the individual’s right to be free from governmental interference. State v. Denson, 11-0517, p. 4 (La.App. 4 Cir. 1/25/12), 83 So.3d 1183, 1187, writ denied, 12-0391 (La.6/22/12), 91 So.3d 967. The totality of the circumstances must be considered when determining whether reasonable suspicion exists. State v. Morgan, 09-2352, p. 5 (La.3/15/11), 59 So.3d 403, 406; Denson, 11-0517, p. 5, 83 So.3d at 1187, citing State v. Belton, 441 So.2d 1195, 1198 (La.1983). While mere suspicious activity is not a sufficient basis for police interference with an individual’s freedom, police do not have to observe what they know to be criminal behavior before making an investigative stop. State v. Juengain, 09-0425, pp. 5-6 (La.App. 4 Cir. 1/20/10), 41 So.3d 499, 503-04.

The fact that a police officer does not have the state of mind which is hy-pothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken so long as the circumstances, viewed objectively, justify that action. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 881.

Police officers also have the right to approach and engage anyone in conversation, even without reasonable suspicion to believe they have committed, are committing, or are about to commit a crime. State v. Guillory, 09-1350, p. 3 n. 3 (La.11/20/09), 21 So.3d 945, 947 n. 3. As long as the individual approached remains free to disregard the encounter and walk away, the encounter does not implicate the constitutional provisions barring unreasonable searches and seizures. Dobard, 012629, p. 3, 824 So.2d at 1130. Moreover, police may request some | ^identification from the individual they are conversing with without turning the encounter into a forcible detention, “unless the request is accompanied by an unmistakable show of authority indicating to the person that he or she is not free to leave.” Martin, 11-0082, pp. 7-8, 79 So.3d at 956, quoting State v. Sherman, 05-0779, p. 7 (La.4/4/06), 931 So.2d 286, 291.

According to Officer Tanewar, who testified at both the motion to suppress hearing and at trial, the officers stopped to inquire about Foster’s bleeding arm. He also confirmed that in his police report he wrote that he elected to conduct a suspicious person stop — although it was not clear whether he meant initially — prior to actually stopping the police unit, exiting, and conversing with Foster — or at some point after asking him about his arm. Foster declined medical attention and explained his bleeding arm by stating that he had been in a physical altercation with two males and that as they drove off in their vehicle he grabbed the tools from the back of their truck. It was at that point the officers asked Foster for identification, whereupon, according to Officer Tanewar, Foster first pulled out his own wallet and subsequently another wallet that had an insurance card sticking out of it with an address of 1930 General Taylor Street on it.

When the officers asked Foster who lived at the address, he replied that the wallet belonged to his wife and that he did not know who the person (presumably the one whose name was listed on the insurance card) was. Officer Tanewar testified that they had been getting complaints of automobile burglaries in the area. He also noted later in his testimony that the toolbox Foster was carrying had what appeared to be pieces of broken automobile glass on it. The officer said at that point they detained Foster and relocated him to 1930 General Taylor Street, which was either two or four blocks away, to resolve the matter. Foster was not 1 ^handcuffed, but he was placed in the police unit and transported by the officers to General Taylor Street. Officer Tanewar confirmed that Foster was not free to leave when he was in the police car.

Officer Stovall did not testify at the motion to suppress hearing but did at trial. He testified that the officers stopped Foster to inquire about his bleeding arm, but said they also stopped him because he was sweating profusely and was a suspicious person. Officer Stovall said that when Foster was asked for identification he first pulled out the wallet with a piece of paper sticking out of it with the 1930 General Taylor Street address on it, but then exclaimed that it was not his. Officer Stovall said: “Give it here.” Foster then pulled out his own wallet. Officer Stovall testified that when Foster stated that the wallet with the insurance card (the evidence suggests that the “piece of paper” was, in fact, an insurance card) bearing the 1930 General Taylor Street address belonged to his wife, but could not or would not state the name of his wife, the officers decided to relocate to 1930 General Taylor Street.

Both officers testified to the effect that the area they were patrolling, when they encountered Foster at 3:00 a.m. had been experiencing a higher than normal number of burglaries. Their supervisor that evening, Sergeant Barbe, testified that police were having a problem with automobile burglaries in that area, and so she had assigned a two-man unit to patrol the area looking for suspicious activity.

Objectively, the officers had the right to stop their unit, exit, and inquire into Foster’s physical condition insofar as his bleeding arm. They also had a right to request identification from him. At no time prior to this point could it be said that the two officers, by means of physical force or show of authority, had in some way restrained the Foster’s liberty. Neither could it be said that the officers had come | uupon Foster with such force that, regardless of his attempt to flee or elude the encounter, an actual stop was virtually certain to occur. Thus, no seizure had occurred up to and including the point at which the officers asked Foster for some identification.

Officer Stovall testified that after being requested for identification Foster pulled out a wallet, and then exclaimed: “Oh, no, that’s not my wallet.” He said he told defendant to “Give it here.” On subsequent cross examination, Officer Stovall testified that when asked for identification Foster pulled out a wallet, but exclaimed: “Oh, this is not — .” At that point (according to his testimony on cross examination) Officer Stovall said: “No, give me that.” Foster then pulled another wallet from his pocket. The first wallet had a zipper, and it had the insurance card.

Foster argues that when Officer Stovall directed him to give him the first wallet, the one that turned out to have the insurance card, he thereby asserted authority over him. He argues that he submitted to that authority and thereby was actually seized by police at that point.

However, it was 3:00 a.m. The officers were patrolling the neighborhood specifically to address a problem with recent automobile burglaries. Foster was carrying several items, including automobile jumper cables and a toolbox with what appeared to be broken automobile glass on it. His right arm was bleeding from an injury he said he sustained in an altercation he had just had with two males at a location he did not recall. He said he had pulled the items in his possession from a truck occupied by the two males as they drove off after the altercation. When asked for identification, he pulled out a wallet but suddenly exclaimed “Oh, no, that’s not my wallet.”

1 ^Foster likens the circumstances of his case to those in State v. Daniels, 93-1769 (La.App. 4 Cir. 1/27/94), 631 So.2d 1281, where this court reversed a trial court’s denial of the accused’s motion to suppress the evidence. However, we distinguish Daniels on its facts. There, two police officers were traveling in a marked police unit in a New Orleans housing project at approximately 7:00 a.m. when they observed Daniels walking a small bicycle and carrying a bicycle tire pump on his shoulder. Daniels crossed the street in front of the officers’ vehicle, acting nervously in doing so, looking back over his shoulder at the police car. The officers alighted from their vehicle, and one told Daniels to approach the police car. Daniels dropped the bicycle at his feet and complied, whereupon an officer immediately frisked him and discovered a pistol. He was arrested for possession of a firearm by a convicted felon. The trial court denied Daniels’ motion to suppress the evidence and he was tried and convicted.

The defendant in Daniels argued on appeal that the trial court had erred in denying his motion to suppress and we agreed. One officer testified at trial that there had been complaints of stolen bicycles in the housing project, but no specific report of any stolen bicycle, particularly of one fitting the description of the one being walked by Daniels. This officer admitted that the only support for the stop was the small size of the bicycle and Daniels’ nervous gesture. We noted that Daniels was also carrying a bicycle pump, reasoning that it was not reasonable to assume that a person walking a bicycle and carrying a pump was a thief. We stated that the mere fact that the incident occurred in a housing project did not in and of itself give rise to an inference of criminality — even while acknowledging that housing projects were known to be high crime areas.

11fiIn the instant case, unlike in Daniels, Foster’s actions after the police lawfully encountered him and asked for his identification (pulling out a wallet that did not belong to him and exclaiming that it was not his) caused the encounter to ripen into reasonable suspicion, in view of the totality of the circumstances.

Foster also cites State v. Martin, supra, where the Court reinstated the trial court’s ruling denying the defendant’s motion to suppress the evidence, after the court of appeal had reversed the trial court. The circumstances in Martin were that a deputy sheriff encountered Martin, someone he knew and whom he knew had been in “some trouble,” while outside a convenience store. The deputy asked Martin how he was doing and then asked for some identification to check for outstanding warrants. The deputy noticed that Martin was nervous and sweating profusely, unusual behavior hot characteristic of their previous encounters at football games and other civic functions when they would joke around. WTiile retaining Martin’s identification, and based on his observations of behavior, the deputy asked Martin if he had anything illegal on him. Martin responded that he had four Soma pills in his pocket, whereupon the deputy placed him under arrest for possession of a controlled dangerous substance.

The trial court in Martin denied his motion to suppress the evidence. The court of appeal reversed. The dispositive issue was whether Martin had been seized for Fourth Amendment purposes when the deputy retained his identification while he conducted a warrant check. The Court ultimately held that the totality of |17the circumstances failed to show that there was an unmistakable show of official authority by the deputy that would have indicated to a reasonable person he was not free to leave. The Court found that Martin had voluntarily complied with the deputy’s request for identification and voluntarily offered a response to the deputy’s potentially incriminating question, and that under the totality of the circumstances the brief retention of Martin’s identification did not change the nature of the essentially consensual encounter into a seizure.

In the instant case, one cannot reasonably dispute that Foster was seized when he was placed in the back of the police unit and transported two or four blocks away to 1980 General Taylor Street to investigate why he was in possession of a wallet with an automobile insurance card with that address on it.

However, even assuming for the sake of argument that Officer Stovall’s action in directing Foster to give him the wallet with the insurance card constituted a seizure for purposes of an investigatory stop, considering the totality of circumstances and the inferences the officers could draw therefrom, we do not find that the trial court abused its discretion in concluding that at that point the officers had reasonable suspicion to believe that defendant had committed, was about to commit, or had committed an offense.

We find no merit to this assignment of error.

IV.

For the foregoing reasons, we affirm Foster’s convictions and sentences.

AFFIRMED.

      . State v. Foster, 10-1574, unpub. (La.App. 4 Cir. 12/7/10), writ denied, State ex rel. Foster v. State, 11-0074 (La.12/16/11), 76 So.3d 1195; State v. Foster, 11-0039, unpub. (La.App. 4 Cir. 1/31/11).

      . State v. Martin, 10-0588 (La.App. 3 Cir. 12/8/10), 54 So.3d 111.

      . We note that Foster does not argue anything to the effect that the officers’ transportation of him several blocks to 1930 General Taylor Street to resolve their suspicions, one way or the other, constituted an unlawful arrest.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Robert WILLIAMS.
    No. 2012-KA-0050.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

1 iAppellant, Robert Williams was convicted of two counts of armed robbery in violation of Louisiana Revised Statutes 14:64 and 64.3. In accordance with Louisiana Revised Statute 14:64, Mr. Williams was sentenced to 94 years at hard labor, without benefit of parole, probation, or suspension of sentence. Because the dangerous weapon used in the commission of the crimes was a firearm, pursuant to Louisiana Revised Statute 14:64.3, he was sentenced to an additional five years, to be served consecutively to the sentence for armed robbery. Mr. Williams filed this appeal contending that the trial court erred in denying his motion for a new trial and that the sentence imposed is excessive. For the reasons that follow, we affirm Mr. Kenney’s conviction, vacate his sentence, and remand for resentencing.

PROCEDURAL HISTORY

Mr. Williams was convicted of two counts of armed robbery, each committed while he was in the possession of a firearm. He was initially sentenced on each count to ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. These sentences were ordered to run concurrently. This Court affirmed his convictions on appeal; however, his sentences were vacated, and the case was remanded for resentencing as the record |2failed to reflect whether the trial court complied with the provisions of Louisiana Revised Statute 14:64.3. State v. Williams, 2009-0964, unpub. (La.App. 4 Cir. 11/24/10), 2010 WL 8972035; writ denied, 2010-2837 and 2010-2864 (La.6/3/11), 63 So.3d 1005-1006. Louisiana Revised Statute 14:64.3 requires that a defendant be sentenced to an additional five years imprisonment when the dangerous weapon used in the commission of an armed robbery is a firearm.

Prior to remand, while the appeal was pending, Mr. Williams filed a pro se Motion for New Trial. The trial court denied this motion on the grounds that the motion did not set forth any facts and circumstances that would merit granting a new trial. Defendant subsequently sought supervisory review of the denial of his Motion for New Trial. This Court did not consider Mr. Williams’ writ, noting that Mr. Williams could raise his claims on post-conviction relief once his appeal became final. State v. Williams, 2009-0964, unpub. (La.App. 4 Cir. 11/24/10).

Thereafter, Mr. Williams filed a series of other motions, all of which were denied by the trial court. Because Mr. Williams’ appeal was still pending at the time the trial court ruled on his motion for new trial and subsequent pleadings, the trial court lacked jurisdiction to hear the motions and could only hear them on remand. See La.C.Cr.P. art. 853.

Following remand, Mr. Williams renewed his motion for new trial and requested that it be treated as an application for post-conviction relief. Thereafter, Mr. Williams filed an application for “instanter subpoena duces tecum in forma pauperis,” requesting certain cell phone records. On August 25, 2011, Mr. Williams appeared for resentencing. On that date counsel for Mr. Williams filed a “Motion 1) to Reurge All Previously Filed Pro Se Motions and Grounds for New Trial Not Properly Ruled Upon, if any, and 2) to Supplement with Additional |sGrounds under C.Cr.P. 851(5), and 3) for Additional Subpoena Duces Tecum to Issue, with Request for Delay in Resentencing to Allow Responses to All Pending Defense Subpoenaes [sic] and Effective Assistance of Counsel.” Attached to the motion was an application for a subpoena duces tecum.

The trial court denied Mr. Williams’ request to continue his resentencing. The court noted that it had already denied defendant’s motion for new trial. After Mr. Williams asserted that it may have been improper to have ruled on his motions while his appeal was pending, the trial court re-issued its earlier ruling and again stated that Mr. Williams’ claims were more properly raised by an application for post-conviction relief.

On August 26, 2011, the court resen-tenced Mr. Williams to ninety-four (94) years at hard labor without benefit of probation, parole, or suspension of sentence for the violation of Louisiana Revised Statute 14:64. In accordance with Louisiana Revised Statute 14:64.3, the court then imposed a sentence of five years at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively to the previously imposed sentence. Counsel for Mr. Williams objected to the sentence as being excessive and asked the court to consider Mr. Williams’ previously filed pro se motion to reconsider sentence. The trial court denied this motion.

On May 8, 2012, after the instant appeal was lodged, Mr. Williams filed a motion in this Court to remand the matter to the trial court for a hearing on the motion for new trial. That motion is denied. All claims asserted in the motion are addressed in this opinion.

^ASSIGNMENTS OF ERROR

1. Mr. Williams contends that the trial court erred in denying his re-urged motion for new trial without holding a hearing and without granting his requests to issue subpoenas, and that the trial court abused its discretion in refusing to postpone his re-sentencing.

2. Mr. Williams contends that his sentence is excessive.

FACTS

In State v. Williams, this Court reported the facts of the case as follows:

Defendant was convicted for the January 21, 2008 armed robberies of Paul Currer and Andrew Francis, while defendant was armed with a firearm.
New Orleans Police Department Senior Police Dispatcher Stephanie Briscoe identified an audiotape of a 911 call from Andrew Francis about an armed robbery with a gun. The call was received at 8:54 a.m. on January 21, 2008. The tape was played for the jury.
Paul Currer testified that on January 21, 2008, he was working with a group from his Alexandria, Virginia church with the Episcopal Diocese of Louisiana to repair homes in the New Orleans area damaged during Hurricane Katrina. Currer and another individual, Andy Francis, picked up some framing lumber that day in a pickup truck and drove it to a home being repaired. Both men went inside, but Francis left to begin carrying in the lumber. Currer heard someone outside say “stop.” He walked to the front room and observed defendant pointing a semiautomatic handgun at Francis. Currer said he looked at defendant and, because defendant had a pretty clean cut appearance, Currer initially thought defendant was a neighbor who perhaps thought that Currer and Francis had gotten into the house illegally. He told defendant they were there to drop off lumber and would be happy to leave if he wanted them to. At that point defendant told them to back up, and they backed up into the inner room. He told the men that they did not come into his neighborhood unless they paid him money. Defendant ordered the men to give them their stuff. Francis tossed his wallet at defendant’s feet; defendant picked it up and asked if the fifteen dollars inside was all he had. Currer told defendant not to worry, that he had money. He took out his wallet and put about one hundred dollars in cash at defendant’s feet. Defendant asked if that was all they had, and they replied in the affirmative.
Defendant again told the men not to come into his neighborhood unless they paid money. He ordered the two to stay there, not to do anything stupid, and not to call the police. Currer and | ^Francis left shortly thereafter and drove away. Francis contacted his boss, and they were directed to a McDonald’s Restaurant where police were waiting for them. He described defendant to the officers as being about 5'8" to 5'9" tall, in his late twenties, with short hair. Several hours later police contacted him, and he went to a location where officers had an individual in custody. Currer identified defendant when he got to within approximately thirty yards of him. He said he was absolutely certain defendant was the person who robbed him.
Currer said the lighting was good; that it was a bright clear day; and that the lighting was also good after defendant backed them further into the residence. He said defendant had a pretty clean cut appearance, with short hair. Defendant was wearing a white jacket with red stripes on the top, extending down the sleeves. He said it was open, and he could see some type of writing on the inside. Currer identified a jacket shown to him as the one defendant was wearing at the time of the robbery. The jacket presented to him in court had stripes on the shoulders and sleeves and writing on the inside.
Currer testified that he was absolutely convinced defendant was the person who robbed him. He conceded on recross examination that at some point in his life he had mistakenly seen someone and believed it was a friend, only to realize it was not.
Andy Francis, a college student from Iowa who, on the day of the robbery, was working with the Episcopal Diocese disaster response leading crews rebuilding homes in New Orleans, testified similarly to Paul Currer. He recalled it being pretty light outside, and that it was about 8:30 a.m. He described the robber as being approximately six feet tall, weighing about two hundred pounds, wearing a white zippered jacket with red writing across it, dark baggy pants, and dark shoes. The robber was clean cut with short hair. Francis identified defendant in court. Francis stated that defendant was about thirty feet away when defendant first got out of the police car at the one-on-one identification procedure. He said that at that time he was pretty sure defendant was the robber, but was not one hundred percent certain. When the officers moved defendant to about fifteen feet away, he still was not one hundred percent certain. Francis said defendant was kind of hunched over. Francis positively identified defendant after police officers told defendant to stand up straight. Francis said he was one hundred percent certain defendant was the person who robbed him. He said defendant had the same face, the same build, was clean cut, and was wearing a white jacket with, a zipper and red writing, baggy pants, and dark shoes. Francis identified the white jacket with the red writing across the front of it. Francis admitted that he did not notice that the jacket the robber was wearing had. red stripes going down the sleeves, like the one in evidence.
IfiOn cross examination Francis conceded that, although he had described to police the pants the robber was wearing as baggy and black, the ones in evidence were not black or extremely dark colored. Nor did he notice embroidery on the fly area and cuffs of the jeans in evidence. Francis said he was more focused on the gun. Francis stated that the lighting in the room of the residence where he was robbed came from four windows, two on each side of the room. Francis confirmed that when the police came to pick him up to view defendant, an officer told him they had somebody who fit the description. Defendant was handcuffed during the viewing. Francis confirmed that there were ten to fifteen police cars at the viewing and an estimated thirty to thirty-five police officers, all surrounding defendant, with three of four officers standing with him. He said Currer was removed from his presence before Francis made an identification of defendant. He confirmed that the police essentially told him that unless he was one hundred percent certain defendant was the person who robbed him, defendant would not be prosecuted. Francis confirmed that he was sure that in his lifetime he had seen someone he had mistakenly believed was a friend.
New Orleans Police Detective Mary Colon conducted the follow-up investigation in the robbery of Paul Currer and Andy Francis. She took the victims’ statements at a McDonald’s restaurant, then drove to the scene and canvassed the area for suspects, having other units do the same. She had returned to the station to type her report when she was notified that officers had a suspect that fit the description. She was present when the two victims viewed the defendant, each positively identifying him as the person who robbed them. She recalled that defendant was wearing dark blue denim jeans and a white sweatshirt with red writing on it. She said he did not have anything under the sweatshirt at the time the identifications were made. But she said he had been wearing a white undershirt and red tee-shirt under the sweatshirt.
Det. Colon confirmed that after she spoke to the victims she broadcast a description of the robber as a light complected black male, five feet eight inches to five feet nine inches tall, twenty-eight to thirty years old, weighing approximately one hundred and eighty pounds, wearing dark baggy jeans and a white sweatshirt with red writing. She confirmed on redirect examination that the 911 operator’s incident log did not reflect that Andy Francis had reported the robber as a light-skinned black male. Det. Colon confirmed that the victims did not say anything about yellow and red stitching on the pants |7defendant was wearing at the time he was arrested. She was shown the jacket defendant was wearing at the time he was arrested, and she described the writing on it as looking like red and black. Det. Colon confirmed that neither of the victims said anything about a red stripe on the jacket running from the collar to the wrist. She confirmed that, in her opinion, the red stripes covered a greater area of the garment than any red writing. The victims described dark shoes, with no mention of white soles. Det. Colon said there were perhaps eight or nine police ears at the location where the victims made their identifications. She did not recall Andy Francis say: “I cannot tell you that’s him.” (November 5, 2008 trial transcript, p. 27). She did not recall Francis telling her to make defendant stand up straighter. She did not recall defendant being in shackles, only handcuffs. She recalled Paul Currer trying to identify defendant as soon as he got out of the vehicle, before he had walked closer to defendant.
Det. Colon confirmed on cross examination that neither victim mentioned to her that they believed the robber was left-handed. Neither said anything about the robber stuttering, although both clearly said he told them that they did not come into his neighborhood without paying him. The detective confirmed that the address recorded as defendant’s home address was uptown, and that the robbery occurred on Duels Street around North Broad Street. Defendant was arrested on North Prieur Street, approximately eight blocks from the McDonald’s restaurant on Elysian Fields Avenue and Interstate 10 where the victims identified him. Det. Colon confirmed that upon arresting defendant she noted that he had a gold tooth. She confirmed on redirect examination that she asked the victims whether or not the robber had gold teeth, and that they said they did not know. She said the victims were shaken up. Det. Colon confirmed that defendant had no money or a gun on his person when arrested. Det. Colon said she did not look at defendant’s cell phone to see what kind of activity had been taking place on that cell phone at about the time of armed robbery.
Bobbie Williams, defendant’s mother, testified that she sat overnight for an elderly man who lived near the intersection of Audubon and Broadway Streets. On January 21, 2008, she got off work at 8:05 a.m. or 8:10 a.m. and went home. Williams identified a copy of a paycheck purportedly issued to defendant, dated “the 18th.” (November 5, 2008 trial transcript, p. 78). She testified that the check had not been cashed at the time defendant was arrested. Defendant came in with someone named “Diego” between 8:10 and 8:15 a.m. They all ate some leftover soup. She said they finished eating around 9:00 or 9:30 a.m., and that defendant left the house between 9:45 and 10:00 a.m. Williams recognized the clothes defendant was wearing at the time he was arrested — his jacket, shirt, pants and belt — and said he was wearing them when he left the house that morning after breakfast. Williams denied that she would commit perjury or make up Ra false paycheck story. Four individuals came into the courtroom and were identified by Ms. Williams — two of her granddaughters, Lakenia and Lashaye Williams; her niece, Alicia Bester; and Charles Yates, defendant’s friend. Williams confirmed that all four of these individuals were at her home on the morning of January 21, 2008, with defendant.
Alisa Bester, defendant’s cousin, testified that she first saw defendant around 6:30 or 7:00 a.m. on January 21, 2008, at her aunt’s house trailer, which was located at 9001 Belfast Street. She was talking to defendant’s mother at about 8:20 a.m. and heard her fussing at someone, whom defendant’s mother identified to her as defendant, for not bringing a bowl back to her residence. Bester later saw defendant at his mother’s home, where she went to get some leftover soup. Bester went there about 8:30 a.m. When asked who was there, she said it was Lakenia and Lashaye Williams, Charles Gates or Yates, and herself. She did not say defendant was there when she got there, or when he came in. She said he left around 9:25 a.m. She was asked why she went to see defendant. Bester replied that it was because she asked him for a couple of dollars; that she always asked him for money; and that he always gave her money. She said he worked at the river, with Coastal Cargo. Bester admitted having a prior conviction for possession of marijuana. Asked on redirect examination where defendant was at 8:30 a.m. on January 21, 2008, Bester replied that he was at his mother’s home eating a bowl of soup.

Williams, unpub., 2009-0964, pp. 1-4.

ERRORS PATENT

Upon review of the record, this Court has identified an error patent with regard to the sentence imposed on Mr. Williams. Louisiana Code of Criminal Procedure article 879 provides that if a defendant is convicted of an offense and sentenced to imprisonment, the court shall impose a determinate sentence. If a record fails to reflect that a defendant was sentenced on each count, the sentence is invalid and the case must be remanded for resentencing. State v. Bessonette, 574 So.2d 1305, 1306 (La.App. 3 Cir.1991).

Mr. Williams was convicted of two counts of armed robbery, requiring the imposition of two separate sentences. The record reflects that on August 26, 2011, the trial court sentenced Mr. Williams to serve ninety-four years imprisonment at 19hard labor. Mr. Williams was also sentenced to serve five years imprisonment pursuant to Louisiana Revised Statute 14:64.3, which the court ordered to be served consecutively to the previously imposed sentence. However, the record fails to reflect that Mr. Williams was sentenced on each count for which he was convicted.

Accordingly, Mr. Williams’ sentences of ninety-four years and five years are invalid and the case must be remanded for resen-tencing.

ASSIGNMENT OF ERROR # 1 — MOTION FOR NEW TRIAL

Mr. Williams contends that the trial court erred in denying his re-urged motion for new trial without holding a hearing and without granting his requests for subpoenas to obtain information in support of the motion. Mr. Williams also maintains that the trial court abused its discretion in refusing to postpone his re-sentencing until after he could obtain the information in support of his motion for new trial pursuant to the subpoenas.

Mr. Williams contends that he is entitled to a new trial pursuant to Louisiana Code of Criminal Procedure article 851(3). Article 851(3) provides for the granting of a new trial when a defendant discovers new and material evidence, which despite the exercise of reasonable diligence was not discovered before or diming the trial, and which would probably have changed the guilty verdict if it had been discovered.

Mr. Williams’ motion does not contend that this “newly discovered evidence” could not have been discovered before or during his trial. Just as this court noted on appeal and in response to Mr. Williams’ previous application, the trial court denied Mr. Williams’ motion for new trial on the basis that his claims were more properly raised on post-conviction review.

| mThis matter was remanded to the trial court to resentence Mr. Williams in compliance with Louisiana Revised Statute 14:64.3, which the trial court did. There is nothing to suggest that the trial court abused its discretion in denying Mr. Williams’ motion for new trial or his motion to continue his resentencing. This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 2 — EX-CESSIVENESS OF SENTENCE

In this assignment or error, Mr. Williams contends his sentence is excessive. He does not suggest that in bringing his sentence into compliance with the provisions of Louisiana Revised Statute 14:64.3 his sentence became excessive. Rather, Mr. Williams simply asserts that his current sentence is excessive, noting that maximum sentences are generally reserved for the most egregious offenders.

In his original appeal, Mr. Williams did not allege that the sentence imposed was excessive. Thus, the State contends that whether Mr. Williams’ sentence is excessive is beyond the scope of the present appeal. We disagree. Citing Louisiana Constitution article 5, § 5(D)(2) and Louisiana Code of Criminal Procedure article 912.1, the Louisiana Supreme Court held that when a defendant’s sentence is vacated and the matter is remanded for resentencing, the defendant has the right to appeal the new sentence. La.C.Cr.P. art. 912.1; State v. Lewis, 350 So.2d 1197, 1198 (La.1977).

The sentencing range for a conviction of armed robbery is ten to ninety-nine years at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, an additional consecutive penalty of five years shall be imposed. La. R.S. 14:64.3.

|nMr. Williams was sentenced to ninety-four (94) years at hard labor without benefit of probation, parole, or suspension of sentence. Because Mr. Williams used a firearm in the commission of the crime, in accordance with La. R.S. 14:64.3, the trial court also imposed a sentence of five years at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively.

Louisiana Code of Criminal Procedure article 881.4(D) states, “The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” The trial court is given wide discretion in imposing sentence and a sentence should not be disturbed absent an abuse of discretion. State v. Square, 433 So.2d 104, 110 (La.1983).

In State v. Smith, 2001-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, the Supreme Court set forth the standard for evaluating a claim of excessive sentence, directing that even if a sentence is within statutory limits, it can be reviewed for excessiveness. Article I, § 20 of the Louisiana Constitution of 1974 provides that no law shall subject any person to excessive punishment. A sentence is considered unconstitutionally excessive when the punishment imposed is grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). The relevant question for appellate review is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. Smith, pp. 6-7, 839 So.2d at 4.

In State v. Batiste, 2006-0875, p. 18 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 820, this Court further explained that the role of the appellate court in reviewing a claim of excessive sentence is to determine whether the trial court adequately complied with the statutory guidelines enunciated in Louisiana Code of Criminal Procedure article 894.1, as well as whether the facts of the case warrant the sentence imposed. If there is adequate compliance with article 894.1, the reviewing court must determine whether the sentence is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious offenders. Id.

Mr. Williams contends that he presented sufficient mitigating factors to warrant a sentence less than the sentence imposed. At his sentencing, Mr. Williams noted that he has the support of his family and that he had a job prior to his arrest. Since his incarceration, he has obtained his GED and is enrolled in carpentry school. While all of this may well be true and may speak to mitigation, the record reflects that Mr. Williams has previous convictions for manslaughter and possession of cocaine. When discussing the manslaughter conviction at the sentencing hearing, the trial court learned that Mr. Williams was initially charged with second degree murder. Following a mistrial and the death of his co-defendant, Mr. Williams pled guilty to manslaughter, and was sentenced to ten years at hard labor. While he was on parole for that offense, Mr. Williams committed the instant offense.

The transcript from Mr. Williams’ original sentencing reflects a lengthy and detailed consideration of the circumstances of the armed robbery. The trial court took particular note of the gravity of Mr. Williams’ conduct in robbing “Good Samaritans” who had traveled to New Orleans to assist in the rebuilding efforts 113foil owing Hurricane Katrina. In fact, the trial court gave a nine-page discourse on the egregious nature of the crime. In light of Mr. Williams’ previous criminal history and the circumstances of the offense, we find that the trial court did not abuse its discretion in its sentencing of Mr. Williams. See State v. Wilson, 452 So.2d 773 (La.App. 4 Cir.1984); State v. Douglas, 389 So.2d 1263 (La.1980).

CONCLUSION

For the foregoing reasons, we affirm Mr. Williams’ convictions. However, we find that Mr. Williams’ sentences of ninety-four years and five years are invalid and remand with instructions to correct the sentences by sentencing Mr. Williams on each count charged, in compliance with Louisiana Revised Statutes 14:64 and 14:64.3. Mr. Williams’ Motion to Remand for a hearing on his motion for a new trial filed in this Court on May 8, 2012 is denied.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . Although Det. Colon’s last name is spelled "Cologne" in the trial transcript, she spelled it “Colon” throughout her supplemental police report that is contained in the record. (Rec., pp. 136-137).