author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Benjamin WALKER.
    No. 13-KA-340.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Vincent J. Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, Louisiana, for Appellant, Benjamin Walker.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

|2In this case, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant’s convictions and sentences and grant counsel’s motion to withdraw.

Facts and Procedural History

In this case, the convictions resulted from guilty pleas so the circumstances surrounding the charged offenses were gleaned from the record, including testimony presented at defendant’s suppression hearings. Here, the record reveals that, on March 16, 2008, Benjamin Walker perpetrated forcible rape upon an adult female, whose date of birth is January 14, 1944. Further, on that same date, Benjamin Walker committed aggravated burglary of a residence on Angus Street in Harvey. Lastly, on April 8, 2008, Benjamin Walker attempted to commit simple burglary of an inhabited dwelling in Marrero.

3On March 5, 2009, the Jefferson Parish Grand Jury indicted defendant, Benjamin Walker, on one count of aggravated rape, in violation of La. R.S. 14:42; one count of aggravated burglary, in violation of La. R.S. 14:60; and one count of attempted simple burglary of an inhabited dwelling, in violation of La. R.S. 14:(27)62.2.

On May 14, 2012, defendant entered guilty pleas to three counts: first, to the reduced charge of forcible rape, in violation of La. R.S. 14:42.1; second, to aggravated burglary, as charged; and, third, to attempted simple burglary of an inhabited dwelling, as charged. That same day, after defendant waived statutory delays, the trial judge, pursuant to a plea agreement set forth in the record, sentenced defendant for forcible rape to “30 years in the Department of Corrections,” the first two of which are without the benefit of probation, parole or suspension of sentence; for aggravated burglary, “30 years Department of Corrections;” and, for the attempted residential burglary, “six years Department of Corrections ... the first year to be served without the benefit of parole, probation or suspension of sentences.”

In addition, on May 14, 2012, the State filed a multiple offender bill of information alleging that defendant was a second felony offender, pursuant to La. R.S. 15:529.1. That day, defendant stipulated to being a second felony offender. Thereafter, the trial court vacated defendant’s original sentence for forcible rape and imposed an enhanced sentence of “30 years Department of Corrections; the first two years ... without the benefit of probation, parole or suspension of ^sentence.” The trial judge reiterated that all of defendant’s sentences were to run concurrently.

On May 24, 2012, defendant filed a pro se Motion for Reconsideration of Sentence, which the trial judge denied on July 9, 2012. On July 18, 2012, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which the trial judge granted. This appeal follows.

Discussion

Under the procedure adopted by this Court in State v. Bradford, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, supra, and State v. Jyles appointed counsel requests permission to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.”

bin State v. Jyles, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing legal points identified by the court, or grant the motion and appoint substitute appellate counsel.

In her brief, defendant’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal or ruling of the court that arguably supports the appeal. First, counsel sets forth a procedural history of the case, and statement of the relevant facts revealed in the record. Counsel further notes that defendant’s pleas were made without reservation of his right to review pre-trial rulings under State v. Crosby, 338 So.2d 584 (La.1976), so those rulings have not been preserved for review. Counsel ^additionally points out that defendant was adequately informed of the legal consequences of changing his plea by his counsel and the trial judge, who also advised defendant of the rights that he would be waiving by entering his guilty pleas and the sentencing exposure that he faced for each count of the bill of information.

Counsel contends that her brief is in compliance with Anders and that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Finally, appellate counsel has filed a motion to withdraw as attorney of record, which states she has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal.

As a result of that filing, this Court sent defendant a certified letter on July 30, 2013, informing him that his appointed appellate counsel had filed an Anders brief and that he had until August 30, 2013, to file a pro se supplemental brief. When defendant sought leave to file a supplemental brief, this Court provided defendant with a copy of the appellate record in this matter. As of the date of this opinion, defendant has not filed a supplemental brief in this matter.

In its brief, the State responds that appellate counsel has shown a diligent, complete, and thorough description of the procedural history of the case. Further, the State points out that counsel’s brief adequately presents the available facts with accurate citations to the record.

The State concurs that the record does not reveal non-frivolous issues upon which to base an appeal. Specifically, the State agrees that defendant’s pleas were knowing, intelligent, voluntary, and valid; and, finally, that defendant’s sentences were not excessive.

17Consequently, the State acknowledges that counsel has conformed with and followed the procedures set forth in Anders and Jyles. The State requests that this Court affirm defendant’s convictions and sentences.

Most importantly, our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. First, the bill of information, which followed the bill of indictment handed down in this case, properly charges defendant and plainly and concisely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged.

Next, the minute entries and commitment reflect that defendant appeared at each stage of the proceedings against him. He attended his arraignment, his motion hearings, and his guilty plea proceedings and sentencing.

Further, defendant pled guilty to his underlying counts and stipulated to his multiple offender adjudication. Where, as here, a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. Additionally, although there were several pre-trial motions and rulings, defendant did not, before entering his guilty pleas, reserve his right of appellate review of those rulings under State v. Crosby, 338 So.2d 584 (La.1976), as noted by appellate counsel.

Turning now to defendant’s guilty pleas and multiple offender adjudication, we find that the record does not reveal any irregularities. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be 18withdrawn by appeal or post conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept.

The record reflects that, during the guilty plea proceeding, defendant was informed in writing through the waiver of rights form and verbally by the trial judge that he was charged with and pleading guilty to three counts: one count of forcible rape, one count of aggravated burglary, and one count of attempted simple burglary of an inhabited dwelling. Further, on the waiver of constitutional rights form and during the colloquy with the trial judge, defendant was advised of his Boy-kin rights — his right to a trial, to confrontation, and to remain silent. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

During this proceeding, defendant stated that he had not been forced, coerced, or threatened to enter a guilty plea. Defendant indicated that he understood the possible legal consequences of pleading guilty, and wished to plead guilty at that time. He also indicated that he understood that these guilty pleas could be used to enhance the penalty for future felony convictions. Defendant also was informed that, if he is not a United States citizen, these guilty pleas could result in his deportation.

Additionally, defendant was told during the colloquy and by means of the waiver of rights form of the sentencing ranges that he faced for each count as well |3as the sentence that would be imposed, if his guilty pleas were accepted. After a thorough examination, the trial judge accepted defendant’s guilty pleas as knowingly, intelligently, freely, and voluntarily tendered.

With respect to defendant’s stipulation to the multiple offender bill, which was filed immediately after defendant’s pleas in the underlying matter, the record shows that defendant was adequately advised of his multiple offender rights. The trial court advised defendant that by stipulating to the multiple bill, he was giving up his right to a hearing, at which the State would have to prove his multiple offender status. Defendant was also advised of the possible sentence that he could receive after his adjudication as a multiple offender as well as the actual sentence that would be imposed upon acceptance of his stipulation to the bill. Throughout the colloquy with the trial court, defendant indicated that he understood his rights relating to the multiple offender proceedings and that he wished to waive those rights. In addition, with respect to the multiple offender adjudication, the record contains a well-executed waiver of constitutional rights form signed by defendant, his attorney, and the trial court indicating that he understood his rights and the consequences of his plea. Thus, the record does not reveal any irregularities in those proceedings.

Moreover, all of defendant’s sentences were imposed pursuant to plea agreements set forth in the record at the time of the agreement. As such, defendant is precluded by law from seeking review of those sentences. Even if review was not precluded, we find no appealable issue because defendant’s sentences fall within the sentencing range set forth in each relevant statute.

| mFirst, in the underlying matter, defendant pled guilty to forcible rape, a violation of La. R.S. 14:42.1, which specifies a sentencing range from 5 to 40 years, with at least 2 years to be served without benefit of probation, parole, or suspension of sentence. On that count, defendant was sentenced to 30 years, of which 2 years are to be served without benefit of probation, parole, or suspension of sentence, which is within the range listed in the statute. This sentence was later vacated, pursuant to defendant’s multiple offender adjudication, which is discussed below.

Second, in the underlying matter, defendant pled guilty to aggravated burglary, a violation of La. R.S. 14:60, which enumerates a sentencing range from 1 to 30 years. On that count, defendant was sentenced to 30 years, which is the longest sentence allowed by the statute.

In the final count of the underlying matter, defendant pled guilty to attempted simple burglary of an inhabited dwelling, in violation of La. R.S. 14:27(D)(3) and 14:62.2, which together allows for a sentence of not less than one year, without benefit of probation, parole, or suspension of sentence, and not more than 6 years. On that count, defendant was sentenced to 6 years, with the first year to be served without benefit of probation, parole, or suspension of sentence, which is the longest sentence allowed by law.

Next, defendant’s enhanced sentence as a second felony offender was within the sentencing range as well. According to La. R.S. 15:529.1(A)(1), “If the second felony is such that upon a first conviction the [offense] would be punishable by imprisonment for any term less than his natural life, then” the sentence “shall be ... a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” As noted above, the longest statutory prison term for a forcible rape conviction is 40 years, with at least 2 of the Inyears being served without the benefit of probation, parole, or suspension of sentence. Thus, as a second felony offender, defendant was exposed to a sentencing range of 20 to 80 years of imprisonment. Defendant’s enhanced sentence of 30 years, which was imposed pursuant to a plea agreement set forth in the record, is within the sentencing range.

Based on the foregoing, we find that defendant’s guilty pleas, multiple offender adjudication, underlying sentences and enhanced sentence, which were imposed pursuant to a plea agreement, do not present any non-frivolous issues for appeal. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

Error patent review

In her Anders brief, appellate counsel requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920. Our review reveals no errors patent requiring correction in this case.

Accordingly, defendant’s convictions and sentences are hereby affirmed. Counsel’s motion to withdraw is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . "[T]o protect the identity and provide for the safety and welfare of crime victims who are ... victims of sex offenses, all public officials ..., including but not limited to ... judicial officers shall not publicly disclose the name, address, or identity ... of victims of sex offenses, regardless of the date of commission of the offense.” La. R.S. 46:1844(W)(l)(a).

      . In a separate bill of information, the Jefferson Parish District Attorney charged defendant with failure to register as a sex offender, in violation of La. R.S. 15:542(F)(2). On May 14, 2012, defendant pled guilty to that charge in Twenty-Fourth Judicial District Court case number 08-2857. That matter is not, however, the subject of this appeal.

      . Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109 n. 3, writ denied, 07-152 (La.9/28/07), 964 So.2d 351.

      . La. R.S. 15:824(C); State v. Vance, supra.

      . La. R.S. 15:824(C); State v. Vance, supra.

      . La. R.S. 15:824(C); State v. Vance, supra.

      . 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. The Bradford Court adopted its procedure from that of the Fourth Circuit, set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . Jyles, 704 So.2d at 241.

      . Id.

      . Bradford, supra at 1110.

      . Id.

      . See generally, La.C.Cr.P. art. 464-66.

      . State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664; State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

      . State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

        .McCoil, supra.

      . See La.C.Cr.P. art. 881.2(A)(2); State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

      . The trial judge imposed defendant’s sentences to run concurrently to sentences imposed in an unrelated matter. See, La.C.Cr.P. art. 883.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of B.G.
    No. 13-KA-445.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Cheryl A. Carter, Attorney for the Deputy Secretary, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2On January 22, 2012, the Jefferson Parish District Attorney filed a petition in juvenile court, alleging that B.G., a child under the age of 17, was in knowing possession of a handgun in violation of La. R.S. 14:95.8. On February 27, 2013, B.G. was adjudicated delinquent. On March 20, 2013, B.G.’s probation officer, Roberta Brown, filed a Motion to Modify Judgment of Disposition/Revocation of Probation. At the conclusion of the disposition hearing the following day, the trial court committed B.G. to the Office of Juvenile Justice (OJJ) for a term of six months, suspended. The court then placed B.G. on active probation for a period of two years in the non-secure custody of the OJJ. B.G.’s probation revocation proceedings on his previous conviction remained pending at the time this appeal was taken.

The Office of Juvenile Justice now appeals.

Facts

On January 11, 2013, school staff received information from multiple students that B.G. displayed photographs on his iPod Touch of B.G. in physical |3possession of a handgun. The Dean of Students, Monique Barthelemy, requested to view B.G.’s iPod, obtained the password to the device, and viewed the images in question. After confirming that B.G. was in possession of a handgun in the photographs, Ms. Barthelemy requested that Campus Police Lieutenant Annette Askew contact Detective Brian Dew of the Jefferson Parish Sheriffs Office. Detective Dew subsequently viewed the photographs and seized B.G.’s iPod Touch.

On January 14, 2013, Detective Dew obtained a warrant for a forensic search of B.G.’s iPod. Pursuant to the warrant, Detective Nick Vega of the Jefferson Parish Sheriffs Office located the images and obtained information as to the date, time, and global positioning satellite (GPS) coordinates. The photographs reflected B.G. loading a handgun magazine with ammunition and then inserting the magazine inside the handgun. In three of the photographs, five ammunition rounds were seen on the bed between B.G.’s body, his hands, and the handgun. The GPS coordinates for the photographs revealed an address range in close proximity to B.G.’s residence. Based on this information, a search warrant was obtained for the residence.

On January 16, 2013, the search warrant was executed at B.G.’s residence, wherein four boxes of live ammunition were recovered from the air return duct of the air-conditioning system located immediately outside of B.G.’s bedroom. B.G.’s mother, K.G., present during the search, advised that she was unaware of the ammunition or its ownership. On January 17, 2013, an arrest warrant was executed upon B.G., who was taken to Rivarde Detention Center.

B.G. denied knowledge of the ammunition or handgun.

| ⅜Assignments of Eiror

Appellant, the Office of Juvenile Justice, asserts that the juvenile court erred in placing B.G. in the custody of the OJJ as a condition of probation; and (2) in imposing a disposition that exceeded the maximum term of commitment.

Law & Discussion

Appellant complains that the juvenile court erred in placing B.G. in the custody of the OJJ as a condition of probation. Specifically, appellant asserts that this condition of probation violates La. Ch.C. art. 899. In support of its contention, appellant cites to State in the Interest of S.D., 02-154 (La.App. 5 Cir. 05/15/02), 821 So.2d 116.

In State in the Interest of S.D., supra, the juvenile court placed S.D. on active probation for two years. As a special condition of probation, the court ordered S.D. to be placed in the “state’s custody for purposes of placement in a residential treatment facility.” In a separate order, the court took protective custody of the juvenile and placed S.D. in the custody of the Department of Public Safety and Corrections/Office of Youth Development (DPSC/OYD) pending further orders of the court. On appeal, the DPSC similarly raised and argued that it was an error of law for a juvenile court to place a child in state custody as a condition of probation. This Court agreed, holding that under La. Ch.C. art. 899, |sthe juvenile court judge may place the child in the custody of his parents or some other suitable person, place the child on probation in the custody of his parents or some other suitable person, commit the child to a [non-DPSC] private or public institution or agency, or commit the child to the custody of the DPSC if the child is at least thirteen at the time of the delinquent act. Id. at 1142. This Court vacated the disposition and conditions of probation, finding that the juvenile court was in error to place S.D. in the DPSC’s custody as a condition of probation, as the DPSC was neither the juvenile’s “parents or some other suitable person.” Id. at 1144.

A. After adjudication of a misdemeanor-grade delinquent act, the court may:
(1) Reprimand and warn the child and release him into the custody of his parents either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public.
(2) Reprimand and warn the child and release him into the custody of some other suitable person either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public. The court shall, whenever practicable, select a person of the same religious faith as the child or his parents.
(3) Place the child on probation in the custody of his parents or other suitable person.
B. As conditions of probation, if ordered pursuant to Subparagraph A(3) of this Article:
(1) The court shall impose all of the following restrictions:
(a) Prohibit the child from possessing any drugs or alcohol.
(b) Prohibit the child from engaging in any further delinquent or criminal activity.
(2) The court may impose any other term and condition deemed in the best interests of the child and the public, including:
(a) A requirement that the child attend school, if the school admits the child.
(b) A requirement that the child or his parent or legal guardian perform court-approved community service activities. If feasible, the court-approved community service activities shall be conducted by the caretaker and child together.
(c) A requirement that the child make reasonable restitution to any victim for any personal or property damage caused by the child in the commission of the delinquent act.
(d) A requirement that the child participate in any program of medical or psychological or other treatment found necessary for his rehabilitation.
(e) A requirement suspending or restricting the child's driving privileges, if any, for all or part of the period of probation. In such cases, a copy of the order shall be forwarded to the Department of Public Safety and Corrections, which shall suspend the child’s driver’s license or issue a restricted license in accordance with the order of the court.
(f) A requirement prohibiting the child from possessing a firearm or carrying a concealed weapon.
(g) A requirement that the child pay a monthly supervision fee of not less than ten nor more than one hundred dollars per month, payable to the Department of Public Safety and Corrections or other supervising agency, to defray the cost of supervision. The court may order a parent, tutor, guardian, or other person who is financially responsible for the care of the child to be responsible for payment of all or part of any supervision fee imposed.
C.The court may commit the child to the custody of a private or public institution or agency. When commitment is to be made to a private institution or agency, the court shall:
(1) Select one that has been licensed under state law, if licensure is required by law for such an institution or agency.
(2) Whenever practicable, select an agency or institution of the same religious faith as the child or his parents.
D. If the child is thirteen years of age or older at the time of the commission of the delinquent act, the court may commit the child to the custody of the Department of Public Safety and Corrections, with or without a recommendation that the child be placed in alternative care facilities through the department’s client placement process, or be referred to appropriate placement resources in the state available through other public or private agencies.
E. The court may impose but suspend the execution of the whole or part of any authorized order of commitment and place the child on probation subject to any of the terms and conditions authorized under Paragraph B of this Article.

Likewise, the juvenile judge in this case suspended B.G.’s sentence and placed B.G. on active probation for a term of two years, imposing a condition of probation that B.G. be placed in a non-seeure facility in the custody of the OJJ. As in State in the Interest of S.D., supra, we find that the juvenile court erred in placing B.G. in the custody of the OJJ as a condition of probation as violative of | fiLa. Ch.C. art. 899. Accordingly, we vacate B.G.’s disposition and conditions of probation and remand the matter for further proceedings.

By vacating B.G.’s disposition and conditions of probation, the OJJ’s second assignment of error is rendered moot. However, we note that the OJJ’s assertion that the juvenile court imposed a disposition that exceeded the maximum term of commitment for the adjudicated offense is without merit. See La. Ch.C. art. 903. Instantly, B.G. was twice adjudicated for violating La. R.S. 14:95.8. La. R.S. 14:95.8 states that “on a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.” Therefore, the juvenile court’s disposition of two years, had it been properly imposed, would have been legal.

Errors Patent

The record was reviewed for errors patent pursuant to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). A review of the record reveals one error patent requiring corrective action.

The trial judge failed to advise B.G. of the two-year prescriptive period for seeking post conviction relief as mandated by La.C.Cr.P. art. 930.8. Therefore, we advise B.G., by this opinion, that no application for post conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922. See State ex rel. D.W., 09-855 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048, 1064.

yDecree

Considering the foregoing, B.G.’s disposition and conditions of probation are vacated and the matter is remanded for further proceedings consistent with this opinion.

DISPOSITION & CONDITIONS OF PROBATION VACATED & REMANDED

      . At the time of adjudication, B.G. was on probation for a previous conviction of La. R.S. 14:95.8.

      . Art. 899. Disposition after adjudication of a misdemeanor-grade delinquent act provides:


author: CONERY, Judge.

text:
    John Ford DIETZ v. Anne Bennett Morrison DIETZ, et al.
    No. 13-186.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Anne Bennett Morrison Dietz, (Appeal Dismissed May 9, 2013), In Proper Person, GTO Mexico.
    Richard Morrison, In Proper Person, Redwood City, California.
    Edward K. Bauman, APLC, Lake Charles, Louisiana, for PlaintiffiAppellee John Ford Dietz.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   CONERY, Judge.

|,John Ford Dietz (“John”) filed suit against his former wife, Anne Bennett Morrison Dietz (“Anne”) and her brother Richard Morrison (“Richard”), seeking damages for defamation, extortion, intentional Infliction of emotional distress, and civil conspiracy. The dispute arose out of John and Anne’s divorce proceedings involving both custody of the two minor children and property still held jointly.

After conducting a bench trial on the merits on January 13, 2012, the trial court issued a “Judgment,” which incorporated lengthy Reasons for Judgment. Anne and Richard timely filed a motion for new trial, and after a hearing on the motion, the trial court denied Anne and Richard’s motion for new trial in a May 23, 2012 “Amended Judgment.”

The “Amended Judgment” conflated the trial court’s Reasons for Judgment with what the trial court obviously intended to be a final judgment. The “Amended Judgment” confirmed the original ruling in favor of John on three of his claims, but additionally found Anne and Richard hable in solido for conspiring against John. Damages in the “Amended Judgment,” in the amount of $85,000, remained the same as the January 13, 2012 “Judgment.” For the following reasons, we set aside the judgment and amended judgment, remand the case to the trial court, and dismiss the appeal.

PROCEDURAL HISTORY

A bench trial was held on November 7-10, and January 9-10, 2012. The court took the matter under advisement and promptly issued what is entitled a “Judgment” on January 13, 2012. In fact, the “Judgment” contains the trial court’s 12entire reasons for ruling, finding in favor of John on each of his three claims of defamation, extortion, and intentional infliction of emotional distress. The “Judgment” discusses the three claims under the headings of “Defamation Claim:,” “Extortion Claim:,” “Intentional Infíiction of Emotional Distress:,” and “Damages.” Under the heading of “Damages,” the trial court stated, “Accordingly, it is ordered Anne Bennett Morrison Dietz and Richard Morrison pay unto Plaintiff John Ford Dietz the sum of Eighty Five Thousand Dollars 00/00 ($85,000).” (Emphasis added.) No Analysis of how the court arrived at its damage award was included, and this court is left with the impression that the trial court likely intended this language to be its decree and judgment.

At the close of John’s case in chief, the defendants, Anne and Richard, moved for directed verdict on each of John’s claims. The trial court denied defendants’ motions for directed verdict for John’s claims of defamation, extortion, and intentional infliction of emotional distress. The trial court granted defendants’ motions and dismissed John’s claim for conversion of property which included silverware, rugs, and furniture, based on John’s lack of objection and his admission he had no viable conversion claim for these items. The trial court also dismissed John’s claim for loss of rental income in connection with the property owned by John and Anne in Mexico, and expanded its May 28, 2011 interlocutory ruling to specifically state that the trial court had no jurisdiction over that claim. The trial court further granted a dismissal of John’s claim for special damages, which included not only his loss of rental income from the jointly owned property in Mexico, but also the costs of a bodyguard hired by John for protection after being threatened by Richard and Anne in Mexico.

IsRichard and Anne timely filed a motion for new trial on January 26, 2012, urging the “Judgment was contrary to law and evidence in several respects.” The petition for new trial stated in pertinent part:

1) The Judgment contained no finding of conspiracy among Defendants, yet failed to allocate fault among them, violating Louisiana’s comparative fault principles that are codified in La. C.C. arts. 2323 and 2324;

In his response to the motion for new trial, John also asked the trial court to clarify the issue of Anne and Richard’s fault. First, John asked the trial court to determine the percentage of comparative fault of Anne and Richard pursuant to La.Civ.Code art. 2323. In the alternative, John asked the trial court to determine whether Anne and Richard had engaged in a conspiracy, making them solidarily liable for the amount awarded pursuant to La. Civ.Code art. 2324. John’s response to the motion for new trial stated in pertinent part:

Plaintiff agrees with defendants’ argument that this court was required to apportion fault pursuant to LSA-C.C. art. 2323, and requests that this Court modify the Judgment to apportion 50% fault to each defendant.
Plaintiff also agrees with defendants’ argument that this court was required to express in the Judgment its implicit finding that defendants engaged in a conspiracy and are therefore solidarily liable under LSA-C.C. art. 2324, and requests that his Court modify the Judgment to so state.

The trial court held a hearing on Anne and Richard’s motion for new trial on May 14, 2012. After again taking the matter under advisement, on May 23, 2012, the trial court promptly issued the “Amended Judgment.” As previously indicated, the “Amended Judgment” again conflated the trial court’s Reasons for Ruling with its judgment, and mirrored the January 13, 2012 “Judgment,” adding specific citations to the record, two further comments on the conduct and credibility of Anne and l4Richard, and a determination of the soli-dary liability of Anne and Richard based on a finding of conspiracy. The introduction of the “Amended Judgment” stated:

The above captioned matter was presented to the court on 14 MAY 2012 as a Motion for New Trial filed on behalf of the defendants. During this hearing, the court reported that the 13 January 2012 Judgment was incorrect; and although it included reasons for ruling, it did not clearly communicate the reasons for the decision reached by this court. Accordingly, the court advised that it would issue a corrected judgment before the end of the week. Considering the evidence submitted and the arguments of counsel, the Motion for New Trial is DENIED.
This Amended Judgment is presented to correct the phraseology of the 13 January 2012 Judgment to explicitly state that which was only implied in the prior judgment. It contains some (but not all) of the citations to the transcript of the trial which support the reasons for ruling. Many of the documents admitted in to evidence during the trial also support this judgment. The additions to the 13 January 2012 Judgment are highlighted herein for convenience. The following language was an addition to the trial court’s ruling on John’s claims of intentional infliction of emotional distress:
This particular method of extortion by Mr. Morrison and Ms. Morrison, coupled with Mr. Morrison’s harmful conduct directed towards the plaintiffs father was outrageous, extreme and calculated to (and did in fact) cause the plaintiff to suffer severe emotional distress.... Further, Anne Morrison and Richard Morrison were not credible witnesses and were inaccurate historians.

The trial court’s “Amended Judgment” contains the following language which was not a part of the January 13, 2012 “Judgment” with respect to the issue of fault versus solidarity:

The actions described above were acts taken in furtherance of the conspiracy of this brother and sister to inflict emotional distress on the plaintiff by producing emotional stress on his family members and presenting false statements to third parties for the purpose of convincing the plaintiff to surrender certain property to Anne Morrison. These defendants enlisted the assistance of various third parties in furtherance of this conspiracy. These defendants intended their actions to produce the desired effects on the plaintiff while he was residing in Louisiana. Thus, the defendants^] Anne Bennett |BMorrison Dietz and Richard Morrison[,] are solidarity liable to the plaintiff for the damages caused by their tortuous conduct.

The same language under the heading “Damages ” contained in the “Judgment” is also contained in the “Amended Judgment” which states, “Accordingly, it is ordered Anne Bennett Morrison Dietz and Richard Morrison pay unto Plaintiff John Ford Dietz the sum of Eighty Five Thousand Dollars 00/00 ($85,000).”

The “Amended Judgment” decretal language makes no mention of the substantive addition to the “Amended Judgment,” finding Anne and Richard liable in solido for the award of $85,000 to John. Neither the “Judgment” nor the “Amended Judgment” contains the necessary decretal language awarding judicial interest as required by La.Code Civ.P. art. 1921, which requires that the trial “court shall award interest in the judgment as prayed for or as provided by law.”

Procedural Defects in the Amended Judgment and Judgment

Louisiana Code of Civil Procedure Article 2082 provides that an “[ajppeal is the exercise of the right of a party to have a judgment of the trial court revised, modified, set aside, or reversed by an appellate court.” In order to exercise the right to appeal there must be a final judgment. La.Code Civ.P. art. 2083(A). Louisiana Code of Civil Procedure Article 1841 provides:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

In addition, La.Code Civ. P. art. 1951 provides:

1 rA final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.[]

The determination of the trial court to apply either La.Civ.Code art. 2323, requiring a determination of fault as between the parties, or La.Civ.Code art. 2324, which imposes solidary liability on the parties to a conspiracy, is substantive in nature and “can only be accomplished by motion for a new trial or on appeal.” Saacks v. Mohawk Carpet Corp., 03-386, p. 23 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 374, writ denied, 03-2632 (La.12/12/03), 860 So.2d 1158, (citing Teague v. Barnes, 519 So.2d 817 (La.App. 5 Cir.1988)).

The trial court denied Anne and Richard’s motion for new trial, but then, as requested in John’s motion for a new trial, altered the “Judgment” to include a determination that Anne and Richard engaged in a conspiracy and were liable in solido. Because the trial judge denied the Motion for New Trial, this change amounted to a substantive change in the “Amended Judgment” in violation of La.Code Civ.P. art. 1951, rendering the “Amended Judgment” null and void and requiring it be set aside.

If an appellate court sets aside an amended judgment, pursuant to La. Code Civ.P. art. 1951, “[t]he usual remedy of the appellate court in such a case is to vacate the amended judgment and reinstate the original judgment.” Teague, 519 So.2d at 822 (quoting Schexnayder v. Schexnayder, 503 So.2d 104 (La.App. 5 Cir.1987), writ denied, 506 So.2d 1228 (La.1987)). However for the following reasons 17we find that the January 13, 2012 “Judgment” is equally flawed and must also be set aside.

Louisiana Code of Civil Procedure Article 1918 dictates the required form of a final judgment and states, “A final judgment shall be identified as such by appropriate language. When written reasons for judgment are assigned, they shall be set out in an opinion separate from the judgment.” (Emphasis added.) A panel of this court held, “[a] valid judgment must be precise, definite, and certain. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” State v. White, 05-718, p. 2 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146 (quoting Jenkins v. Recovery Tech. Investors, 02-1788, pp. 3-4 (La.App. 1 Cir. 6/27/03), 858 So.2d 598, 600) (citations omitted).

This court is aware that jurisprudence has interpreted the language in La. Code Civ.P. art. 1918 requiring written reasons to be separate from the judgment to be “merely precatory.” Extraneous language in a judgment does not automatically render a judgment which includes written reasons invalid in all cases. Hinchman v. Int’l Bhd. of Elec. Workers, Local Union No. 130, 292 So.2d 717 (La.1974). However, Article 1918 does contain the word “shall” when it directs the trial court to set out Reasons for Judgment “in an opinion separate from the Judgment.” (Emphasis added.) In this particular case, because of the problems in the language of the “Judgment” and “Amended Judgment,” we apply the article as written. Even assuming the word “shall” could be interpreted as “precatory,” a final and ap-pealable Judgment must nevertheless contain sufficient decretal language consistent with the Reasons espoused.

[sThe January 13, 2012 “Judgment” does not contain all of the necessary decretal language to meet the requirements of a final judgment. The “Judgment” fails to make a determination of the allocation of fault between Anne and Richard, or to award judicial interest as required by La. Code Civ.P. art. 1921. It certainly does not meet the requirements of the form of a final judgment required in La.Code Civ.P. art. 1918, as the written reasons for the judgment are not set forth in a separate opinion. We therefore find that the January 13, 2012 “Judgment” must be set aside. Likewise, the May 13, 2012 “Amended Judgment” lacks decretal language on the issues of solidary liability and legal interest. As previously indicated, the reasons for judgment, likewise, are not set forth in a separate opinion in the “Amended Judgment” in clear violation of the mandate in La.Code Civ.P. art. 1918.

DISPOSITION

Finding that both the “Judgment” and “Amended Judgment” must be set aside, and since there is no final appealable judgment from which an appeal may be taken, we hereby dismiss the appeal and remand the case to the trial court for further proceedings and the entry of a final appeal-able judgment.

JUDGMENT AND AMENDED JUDGMENT SET ASIDE; CASE REMANDED; APPEAL DISMISSED.

      . Although the "Judgment” reflects that trial ended on January 9, 2012, the minutes of the court reflect that the bench trial concluded on January 10, 2012.

      . Louisiana Code of Civil Procedure Article 1951 was amended, effective August 1, 2013 subsequent to the judgment and amended judgment at issue.


author: STEPHEN J. WINDHORST, J.

text:
    STATE of Louisiana v. Kevin WISE.
    No. 13-KA-247.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 19, 2013.
    Rehearing Denied Jan. 9, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Forth Judicial District, Parish of Jefferson, Terry M. Boudreaux, David Wheeler, Vince Paciera, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Mandeville, Louisiana, for Defendant/Appellant.
    Kevin Wise, Louisiana State Penitentiary, Angola, Louisiana, Appellant/In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, J.

| ¡¡Defendant, Kevin Wise, was convicted of attempted simple robbery in violation of La. R.S. 14:27/65, and was sentenced to imprisonment at hard labor for a term of three and a half years. After an habitual offender hearing, defendant was adjudicated a fourth felony offender under La. R.S. 15:529.1, and was sentenced to life in prison without benefit of parole, probation, or suspension of sentence. After the denial of his Motion for Reconsideration of Sentence and his pro se motion to quash, defendant appealed from his conviction and sentence.

FACTS

During the afternoon hours of December 22, 2011, defendant entered the Burger King on Lapalco Blvd. in Harvey, Louisiana. Sharlene Jones, a store manager, was getting change out of the safe for a customer when defendant reached over the counter and told her to give him the change drawer. Defendant and Ms. Jones struggled over the cash drawer and defendant stated that he had a gun. Defendant jumped over the counter and the cash drawer fell on the floor, scattering the money it contained. Defendant picked up some of the money. He then attempted to escape through the front door, but discovered that Ms. Jones had locked it. Next he attempted to escape through the “drive-thru” window.

IsDuring this time a second manager, Nyishia Randall, exited from the back office and saw defendant in the kitchen, by the safe, “scrambling for money,” and then trying to crawl out of the “drive-thru” window.

While defendant was trying to escape, Lt. Dax Russo arrived on the scene. He was let into the store and was told that defendant was trying to exit the “drive-thru” window, however only defendant’s head and torso were through the window. After much resistance, Lt. Russo was able to apprehend defendant before defendant was able to completely exit the window. Lt. Russo discovered that, despite his assertions to the contrary, defendant was unarmed.

Defendant testified on his own behalf at trial. He stated that when he entered the Burger King he ordered and paid for his food. While waiting for his order, defendant testified that he “blacked out.” Defendant stated that he did not remember struggling with Ms. Jones over a cash drawer, nor did he remember struggling with Lieutenant Russo or attempting to exit the restaurant through the drive-thru window. Defendant further claimed that when he finally regained consciousness, he did not have any money in his pockets. After defendant provided a statement to the police at the police station, an ambulance transported him to University Hospital. Defendant testified that he has prior convictions for unauthorized use of a movable, issuing worthless checks, aggravated battery, theft, attempted simple robbery, and first degree robbery.

DISCUSSION

In his two counseled assignments of error, defendant alleges that the trial court erred in denying his motion for reconsideration of sentence and that his sentence is constitutionally excessive. However, there are errors patent which preclude discussion of these issues.

|4We have reviewed the record for errors patent according to the mandates of La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990), and find the following which merits attention. In this case, neither the transcript nor the commitment indicates that the trial court vacated defendant’s original sentence prior to imposing his enhanced sentence. When the original sentence on the underlying offense has not been vacated by the court at the time of defendant’s sentencing as a habitual offender, the original sentence remains in effect and the subsequent sentence as a habitual offender is null and void. State v. Netter, 11-202 (La.App. 5 Cir. 11/29/11), 79 So.3d 478, writ denied, 12-0032 (La.8/22/12), 97 So.3d 357. Accordingly, we must vacate defendant’s habitual offender sentence and remand the matter to the trial court for resentencing. The trial court is instructed to vacate defendant’s original sentence before imposing the habitual offender sentence.

In his first pro se assignment of error, defendant alleges that the trial court erred in granting the State’s motion in limine to exclude evidence of mental disease denied him the right to present a defense. He further alleges that during the trial, the trial court improperly prevented him from presenting his defense when it refused to allow him to testify regarding the diabetic attack he suffered at the time the instant offense was committed.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13), 108 So.3d 763. However, this right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. LThe trial court is accorded great discretion in evi-dentiary rulings and, absent a clear abuse of that discretion, rulings on admissibility of evidence will not be disturbed on appeal. State v. Magee, 11-0574 (La.9/28/12), 103 So.3d 285, 321.

“Not guilty and not guilty by reason of insanity” is one of four possible pleas to the indictment at the arraignment. La.C.Cr.P. art. 552. The defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. La.C.Cr.P. art. 561. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial. Id. A legal presumption exists that a defendant is sane and responsible for his actions at the time of an offense. La. R.S. 15:432. To rebut that presumption and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652; State v. Silman, 95-154 (La.11/27/95), 663 So.2d 27, 32. However, when a defendant is tried upon a plea of “not guilty,” evidence of insanity or mental defect at the time of the offense shall not be admissible. La. C.Cr.P. art. 651; State v. Necaise, 466 So.2d 660, 664 (La.App. 5 Cir.1985).

Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime. State v. Stewart, 93-0708 (La.App. 1 Cir. 3/11/94), 633 So.2d 925, 934, writ denied, 94-0860 (La.9/16/94), 642 So.2d 189. For that reason, such evidence is not relevant to the issue of a defendant’s guilt or innocence. State v. Carter, 97-2902 (La.App. 4 Cir. 5/10/00), 762 So.2d 662, 675, writ denied, 00-1598 (La.6/15/01), 793 So.2d 1233, cert. denied, 534 U.S. 1116, 122 S.Ct. 926, 151 L.Ed.2d 889 (2002). Moreover, evidence of a mental disease or defect affecting a defendant at the time of an offense is inadmissible, whether it is an organically | F,caused mental condition, or a psychologically or emotionally induced mental condition. State v. Anseman, 607 So.2d 665, 670 (La.App. 5 Cir.1992), writ denied, 613 So.2d 989, 990 (La.1993).

Although defendant argues that there is a distinction between physical and mental defects, under the circumstances of this case, defendant’s contention is misplaced. The physical impairment about which defendant contends he should have been allowed to testify concerned a diabetic episode which he claimed caused him to “black-out” immediately prior to the commission of the crime, resulting in his inability to recall his actions which led to his arrest. Instances of a mental defect, for purposes of La.C.Cr.P. art. 651, “include a defendant’s denial of recall of the events of a crime, [and] evidence of a prior mental condition to explain his lack of recall is inadmissible, even if only offered to corroborate [the] defendant’s explanation of why he cannot testify about the event surrounding the crime.” State v. Pitre, 04-0545 (La.App. 1 Cir. 12/17/04), 901 So.2d 428, writ denied, 05-0397 (La.5/13/05), 902 So.2d 1018 (citing State v. Dixon, 95-0269, p. 3 (La.App. 4 Cir. 1/19/96), 668 So.2d 388, writ denied, 96-0332 (La.5/17/96), 673 So.2d 608, cert. denied, 519 U.S. 983, 117 S.Ct. 438, 136 L.Ed.2d 335 (1996).)

Defendant’s claimed “physical impairment” appears to have been offered in an attempt to show that defendant’s mental condition at the time of the offense may have affected his mental functions, and thus, his intent to commit the crime. Accordingly, in the absence of a plea of “not guilty and not guilty by reason of insanity,” defendant was barred from presenting any evidence to support a defense of amnesia, diminished capacity, or evidence of another physical disease which may have affected his mental state in an attempt to act as a complete defense to the charge or to mitigate his culpability. La.C.Cr.P. art. 651; State v. Williams, 11-127 (La.App. 5 Cir. 2/28/12), 88 So.3d 1102; State v. McCray, 39,883 (La.App. 2 Cir, 6/29/05), 908 So.2d 68, 72, writ denied, 05-2015 (La.2/17/06), 924 So.2d 1015. Defendant’s first pro se assignment of error is without merit.

In his second pro se assignment of error, defendant argues the trial court erred in denying his Motion to Quash Mul-ti-Bill in which he alleged that prosecutions for two of the alleged predicate offenses were not instituted in a timely manner. Specifically, defendant contends that the State exceeded the time limitation for screening and accepting the charges in predicate case numbers 288-157 and 358-790, now used by the State to charge defendant as a fourth felony offender. Thus,, defendant maintains that these predicate offenses should have been quashed.

A defendant has the right to challenge the constitutional sufficiency of previous convictions through a written response to the State’s filing of a habitual offender bill of information. See La. R.S. 15:529.1(D)(1). A defendant must make such a response in order to preserve challenges to previous convictions for appellate review. Id.; State v. Harris, 44,402 (La.App. 2 Cir. 6/24/09), 20 So.3d 1121, writ denied, 09-2303 (La.4/23/10), 34 So.3d 271. In addition, if a defendant does not concede the validity of previous convictions, he is entitled to a formal hearing. La. R.S. 15:529.1D(l)(b). A defendant’s response to the State’s filing of a habitual offender bill of information is often styled as a “motion to quash.” See, e.g. State v. Zachary, 08-634 (La.11/21/08), 995 So.2d 631. Pursuant to La. R.S. 15:529.1D(l)(a), a defendant is required to file particular objections to the bill within .15 days after the defendant denies the allegation of the information, refuses to answer, or remains silent.

Here, defendant did not file his pro se motion to quash until a month after the habitual offender hearing and his adjudication as a fourth felony offender, and therefore the trial court did not err in denying defendant’s motion to quash as |suntimely. See Harris, supra. Defendant’s second pro se assignment of error is without merit.

In his third pro se assignment of error, defendant contends that the State failed to prove that less than ten years had elapsed between the predicate offenses used to charge him as a habitual offender and the commission of the instant offense. Specifically, he argues that the documents presented by the State at the habitual offender hearing failed to prove the dates he was discharged from custody or the predicate offenses. Defendant concludes that without proof of the actual date of discharge from state supervision, the evidence is insufficient to support his habitual offender adjudication.

Although defendant filed a written response to the habitual offender bill of information, he did not raise this objection in the response or during the habitual offender hearing. Ordinarily, the issue would not be properly preserved for appellate review. See La. R.S. 15:529.1D(l)(b) (“Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.”). However, since the sufficiency of proof of the “cleansing period” bears on the defendant’s due process rights, we will review this issue on appeal. State v. Boiteux, 11-191 (La.App. 5 Cir. 12/13/11), 81 So.3d 123; State v. Mosley, 08-1319 (La.App. 5 Cir. 5/26/09), 16 So.3d 398, 403.

The provisions of the Habitual Offender Law are inapplicable where more than ten years have elapsed between the date of the commission of the current offense and the expiration of the maximum sentence of the previous conviction. La. R.S. 15:529.1C. The State bears the burden of proving that the predicate convictions fall within the “cleansing period” prescribed by La. R.S. 15:529.1C. State v. Hollins, 99-278 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 685, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587. This ten-year “cleansing period” begins to l3run from the date that a defendant is actually discharged from state custody and supervision. State v. Thomas, 04-1341 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 906, writ denied, 05-2002 (La.2/17/06), 924 So.2d 1013. Thus, the commencement of the “cleansing period” is from the date of discharge from state supervision because the discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation or good time credit, or it could take place later because of parole revocation. State v. Humphrey, 96-838 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35. However, if less than ten years has elapsed between a defendant’s conviction on a predicate felony and his commission of a subsequent predicate felony, the State need not prove the date of discharge on the earlier sentence in the habitual offender proceedings. State v. Brooks, 01-864 (La.App. 5 Cir. 1/29/02), 807 So.2d 1090, 1101 (citations omitted).

The certified records in this case show that on July 20, 1982, in case number 288-157, Criminal District Court for the Parish of Orleans, defendant pled guilty to attempted simple robbery and was sentenced on the same day to serve two years in Parish Prison, suspended, and two years of active probation. On August 5, 1991, the Jefferson Parish District Attorney filed a bill of information charging defendant with first degree robbery alleged to have occurred on January 22, 1991. Defendant was found guilty of first degree robbery on May 6, 1992, in case number 91-3676, 24th Judicial District Court, and sentenced on June 26, 1992, to 30 years at hard labor without benefit of probation, parole, or suspension of sentence. The certified records further show that on May 18,1992, in case number 358-790, Criminal District Court for the Parish of Orleans, defendant was charged with aggravated battery upon a police officer, and was found guilty on November 18, 1992. Defendant was sentenced on November 25, 1992, to serve ten years in the | inDepartment of Corrections. On December 22, 2011, defendant committed the instant offense.

More than 10 years had elapsed between defendant’s predicate conviction in case number 358-790 on November 18, 1992, and the commission of the instant offense on December 22, 2011. Thus, the State was required to prove that the underlying offense was committed within ten years of defendant’s release from state custody for the predicate conviction in case number 358-790 of the Criminal District Court for the Parish of Orleans.

At the habitual offender hearing, the State produced certified copies of the bill of information in case number 358-790 and a minute entry detailing the date of defendant’s conviction. The minute entry further details that defendant was sentenced to 10 years imprisonment in the custody of the Department of Corrections on November 25, 1992. The State also introduced a certified copy of a letter styled “Diminution of Sentence,” from the Department of Public Safety and Corrections, indicating that defendant was eligible to be released by diminution of sentence in case number 358-790, and that defendant “shall be released in the same manner as if on parole on June 21, 2006(emphasis added). A certificate of release/completion of sentence was also included in the certified documentation, which shows June 21, 2006, as the date defendant was released from incarceration. Thus, the underlying offense in this case, committed on December 22, 2011, is clearly within the 10-year “cleansing period” prescribed by La. R.S. 15:529.1C.

Accordingly, based on the uncontrovert-ed evidence admitted at the habitual offender proceeding, we find that the State presented sufficient evidence to meet its burden of proving that the predicate convictions fell within the ten-year “cleansing period” prescribed by La. R.S. 15:529.1C, and therefore the trial court did not err Inin finding defendant to be a fourth felony offender. Defendant’s third pro se assignment of error is without merit.

In his fourth pro se assignment of error, defendant contends that the State failed to comply with certain statutory discovery rules as required under Brady v. Maryland. , Specifically, defendant argues that he recently became aware that State witness Nyishia Randall had a warrant issued for her arrest at the time of trial, which was not disclosed by the State. Defendant maintains that he could have used this information as impeachment evidence during his cross-examination to attack Ms. Randall’s credibility. Defendant concludes that the failure to provide this favorable evidence prejudiced his defense.

In Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97, the United States Supreme Court held that the suppression by the State of evidence favorable to the accused after it receives a request for such evidence violates a defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecutors. See also State v. Bright, 02-2793 (La.5/25/04), 875 So.2d 37, 41-42. The duty to disclose is applicable even where there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). The State’s due process duty to disclose applies to both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Kemp, 00-2228 (La.10/15/02), 828 So.2d 540, 545. Brady also requires the disclosure of evidence concerning a promise of leniency or immunity to a material witness in exchange for his testimony at trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

| ^Evidence is “material” under Brady only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. A reasonable probability is one that is sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. A reviewing court determining materiality must ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

Brady challenges, like the one asserted in defendant’s pro se brief, present fact-based judgments that cannot be adequately first made on appellate review. United States, v. Gonzales, 436 F.3d 560, 580 (5th Cir.2006). That is why Brady challenges must be brought to the district court’s attention, winnowed by the trial judge, and made part of the record through a motion for new trial. See United States v. Chorney, 63 F.3d 78, 80-81 (1st Cir.1995); United States v. Jones, 112 Fed.Appx. 343, 344 (5th Cir.2004). See also State v. Chesson, 03-606 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686. Because defendant did not raise this issue at the trial court level, defendant failed to preserve this issue for review.

Assuming arguendo that this assigned error was properly before this court, it is without merit.

Defendant complains that he recently became aware that State witness Nyishia Randall had a warrant out of her arrest “dated 5-7-2011 under num-ber9019696 [sic] for violation of 300 R.S. 32:68-A(21).” It appears that the violation allegedly committed by Ms. Randall pertains to a speeding infraction. There is no evidence in the record that such an arrest warrant existed. Secondly, if | istrue, the evidence of Ms. Randall’s warrant for a traffic violation does not appear to be exculpatory or possess impeachment value. Even if the subject information was known by the State and not provided, the evidence at issue is not “material” under Brady in that confidence in the outcome would not be undermined in its absence, nor the outcome of the trial any different had the evidence been timely disclosed to the defense. Defendant’s fourth pro se assignment of error is without merit.

In his fifth pro se assignment of error, defendant contends that his counsel was ineffective in: 1) failing to investigate, interview and subpoena witnesses, and obtain available documentary evidence; 2) failing to enter a plea of “not guilty and not guilty by reason of insanity;” 3) failing to understand the insanity plea and his advice to defendant that he would be able to present evidence supporting his defense without pleading insanity; 4) failing to present-a defense; and 5) his decision to stipulate to Kim Syierwalb’s testimony concerning the lack of fingerprints or DNA taken in the investigation of the crime.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. To prove ineffective assistance of counsel, a defendant must show both that: 1) his attorney’s performance was deficient; and 2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450 and 94-1361 (La.11/4/94), 644 So.2d 1055. An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is 114reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

The Louisiana Supreme Court has held that generally a claim of ineffective assistance of counsel is most appropriately addressed through Application for Post-Conviction Relief rather than direct appeal, to afford the parties an opportunity to make an adequate record for review. State v. Truitt, 500 So.2d 355 (La.1987). However, if the appeal record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 816, writs denied, 03-1427 (La.4/23/04), 870 So.2d 290 and 08-2581 (La.1/30/09), 999 So.2d 755.

In this case, the appellate record is insufficient to consider all of defendant’s allegations of ineffective assistance of counsel. Decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be decided on appeal. State v. Martin, 607 So.2d 775, 788 (La.App. 1 Cir.1992). See also State v. Watts, 98-1073 (La.App. 5 Cir. 5/19/99), 735 So.2d 866; State v. Holt, 08-1276 (La.App. 5 Cir. 5/26/09), 12 So.3d 502, writ denied, 09-1681 (La.3/26/10), 29 So.3d 1249. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel because “opinions may differ on the advisability of such a tactic.” State v. Singleton, 05-634 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532. Only in an evidentiary hearing in the district court, where the defendant could |15present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, we decline to address this assignment of error.

For the above discussed reasons, defendant’s conviction is affirmed. His enhanced sentence as a habitual offender is vacated and this matter is remanded for resentencing.

CONVICTION AFFIRMED, HABITUAL OFFENDER SENTENCE VACATED, REMANDED FOR RESENTENC-ING.

      . Defendant was also charged in case number 12-633 with battery of a police officer and resisting arrest. As to these misdemeanor crimes, the trial court found defendant guilty as charged and sentenced defendant to six months in Parish Prison on each count. The trial court further ordered the misdemeanor sentences to run concurrently with each other and concurrently with the sentence imposed in the instant matter.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Exculpatory evidence by definition is that “which tends to justify, excuse or clear the defendant from alleged fault or guilt.” State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 296, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154 (citing Black’s Law Dictionary, Sixth Edition).

      . The defendant would have to satisfy the requirements of La.C.Cr.P. art. 924 et seq. in order to receive such a hearing.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Nicholas Dewayne DAVIS, Appellant.
    No. 48,512-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project by Teresa Culpepper Carroll, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth Patrick Haines, Tammy Lenn Gantt Jump, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

| Nicholas Dewayne Davis pled guilty to distribution of cocaine in violation of La. R.S. 40:967. He was then sentenced to 20 years of imprisonment at hard labor. He now appeals his sentence as being excessive. We affirm in all respects.

FACTS

Davis was arrested on April 7, 2010, for three charges of distribution of cocaine, a Schedule II Controlled Dangerous Substance, in contravention of La. R.S. 40:967(A)(1), and for one charge of distribution of Lortab, a Schedule IV Controlled Dangerous Substance, in contravention of La. R.S. 40:969(A)(1). The bill of information was later amended to charge him under La. R.S. 14:24 as a principal to the Schedule IV offense and to one of the Schedule II offenses.

On August 20, 2012, Davis pled guilty to two counts of distribution of cocaine. He signed a “Determination of Understanding of Constitutional Rights, Nature of Charge and Consequences of Guilty Plea,” which contains a paragraph stating that the maximum penalty would be 30 years and a $50,000 fine, and that the minimum penalty would be two years at hard labor without probation. The document also contains handwritten marginal notes indicating that the state dismissed Counts Three and Four, and that the state agreed not to file a habitual offender bill. In addition, where the document contained a bold-faced typed paragraph stating, “Fifteen (15) years at hard labor, on each count, this shall run concurrently with each other, in the custody of the Louisiana Department of Corrections,” the paragraph has been marked through, and there is a handwritten note stating, [/Straight up as charged with PSI.” At sentencing, both the prosecutor and the defense counsel confirmed that defendant had pled “straight up.”

The presentence investigation report indicates that Davis:

• has a 10th grade education;

• was employed for two companies between 2005 and 2007;

• began to use marijuana at age 15 and to drink alcohol at the age of 20;

• has attended a 12-step program; and

• is single and has an 11-year-old child.

At the sentencing hearing on November 7, 2012, the trial court took into consideration the presentence investigation report, the La. C. Cr. P. art.' 894.1 aggravating and mitigating circumstances, the defendant’s age, family ties, marital status, health, employment record, prior criminal record and the seriousness of the offenses therein. The court then ordered that Davis serve 20 years per count, concurrently, with the Department of Corrections.

On December 11, 2012, Davis filed a motion to reconsider sentence in which he argued that 20 years at hard labor “will be merely punitive and will not achieve any goals of rehabilitating this defendant.” The trial court granted a hearing, but denied the motion on January 8, 2013.

DISCUSSION

Excessiveness and Failure to Reconsider Sentence

Davis argues on appeal that the trial court wrongly denied his motion to reconsider sentence, and also that this court should reduce the sentence 13directly. He asserts that a punishment consisting of concurrent 20-year hard labor sentences for distribution of cocaine “is excessive, punitive, and will not achieve any goals of rehabilitating him.” Davis argues that the trial judge gave “absolutely no consideration” to the 33 sentencing factors of La. C. Cr. P. art. 894.1(B), and that only three of the 21 aggravating factors apply, whereas seven of the 12 mitigating factors apply. He adds that 20 years is too long a sentence for a crime involving only $60 worth of contraband. He points out that the trial court incorrectly stated during sentencing that the minimum sentence under La. R.S. 40:967(B)(4)(b) was 10 years, when the minimum is actually only two years. Davis also argues that his sentence is meant to punish him for not accepting a plea bargain rather than for committing a crime.

The state argues that Davis’ return to drug dealing after previous shorter incarcerations for drug dealing shows that he would continue to deal drugs if not incarcerated or if given a short sentence. The state next argues that Davis’ sentence would have been even worse if not for the plea bargain in which the state agreed not to seek multiple offender adjudication. The state also argues that although courts have found 20-year sentences to be unconstitutional for first offenses, State v. Sharkey, 602 So.2d 249 (La.App. 2d Cir.1992), State v. Wyatt, 591 So.2d 761 (La.App. 2d Cir.1991), 20 years or thereabouts has been found to be an acceptable length of sentence for subsequent offenses. State v. Rattler, 605 So.2d 211 (La.App. 2d Cir. 1992) (finding that 19 years was not excessive for drug distribution when the appellant had no prior felonies, but many prior misdemeanors); State v. Gibson, 628 So.2d 156 (La.App. 2d Cir.1993) (similar to Rattler, but with a 20-year sentence); State v. Williams, 95-1556 (La.App.3d Cir.2/19/1997), 688 So.2d 1343 (finding that a 48-year total sentence was not excessive for an important drug trafficker who was technically a first-time offender, but for whom each of three subsequent arrests occurred before the first arrest went to trial).

According to La. R.S. 40:967(B)(4)(b), a person convicted of distribution of cocaine “shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.”

In State v. Spruell, 403 So.2d 63 (La.1981), a trial court had mistakenly looked at the sentencing range for cocaine distribution (two to 30 years) when it should have looked at the sentencing range for marijuana distribution (zero to 10 years). The Supreme Court found that the trial court had not accurately regarded the offense, and thus remanded for resentenc-ing.

Contrarily, in State v. Preston, 47,273 (La.App.2d Cir.8/8/12), 103 So.3d 525, the trial court incorrectly stated that the defendant’s sentencing range was six to 20 years’ imprisonment, when in reality the range was 3.33 to 10 years. On appeal, this court ruled that a seven-year sentence was not excessive under the circumstances where “nothing in this record convinces us that the trial court intended to impose a lenient sentence for this | ¡^defendant.”

Our law is well settled as to appellate review of sentences.

Twenty years is within the sentencing range of two to 30 years, allowed by La. R.S. 40:967(B)(4)(b).

The trial court did not discuss in detail the factors of La. C. Cr. P. art. 894.1 during sentencing. However, the court stated that it had done so. Of the eight statutory mitigating factors that Davis argues apply to him, all but one (number 26, that the victim facilitated one of the crimes) could have been ignored by the trial court without manifest error.

|0There are two aggravating factors that might apply, but Davis does not acknowledge them in his brief. In addition to the statutory factors, the trial court considered the defendant’s presentence investigation report, his age, family ties, marital status, health, employment record, his prior criminal record and the seriousness of his past crimes.

Pursuant to the plea bargain that Davis received, the state did not prosecute him for charges three and four or seek an habitual offender enhancement, and the state agreed that the defendant receive a presentence investigation report. The sentence that Davis received is only 2/3 of the full sentence that he might have received for each of the charges prosecuted, and the sentences are concurrent rather than consecutive. Davis has multiple prior convictions.

According to his PSI report, Davis also has been charged with, but not convicted of, numerous other charges.

Furthermore, the prosecution correctly asserts that Sharkey and Wyatt, supra, can be distinguished from this case because they involve excessive sentences for first-time felony convictions rather than for subsequent 17convictions. In light of all relevant facts, the sentence is not grossly disproportionate to the offense.

The sentence comports with the aggravating and mitigating factors listed in La. C. Cr. P. art. 894, and it is not grossly disproportionate to the gravity of the offense. Davis fails to show that the trial court abused its discretion in imposing concurrent 20-year hard labor sentences, or that the trial court was wrong to deny his motion to reconsider sentence.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The trial court neglected to stipulate that the first two years would be served without benefit of probation, parole, or suspension of sentence as required by La. R.S. 40:967(B)(4)(b). However, La. R.S. 15:301.1(A) states that when a trial court forgets to stipulate that a portion of the sentence is without benefits, the sentence is nonetheless deemed so to stipulate.

      . To determine whether an imposed sentence is excessive, Louisiana reviewing courts first examine the record to ascertain if the trial court considered the aggravating and mitigating factors under La. C. Cr. P. art. 894 in determining a factual basis for the sentence imposed. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The trial court need not articulate each aggravating or mitigating factor; rather, the record need only show that he adequately considered the guidelines. Sharkey, 602 So.2d at 251; Smith, 433 So.2d at 699. The court must consider such factors as defendant’s personal history, prior criminal record, seriousness of the offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d581.
      Second, Louisiana courts consider whether the sentence is grossly disproportionate to the seriousness of the offense. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La. 1980). If the sentence imposed, in light of the harm done to society, shocks the sense of justice, then the sentence imposed is excessive. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379. Maximum sentences are reserved for the worst offenders and offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802.
      A trial judge has wide discretion in imposing sentences within the statutory limits and in consideration of aggravating and mitigating circumstances. Therefore, a reviewing court considers only whether the trial court abused its discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). A plea bargain which brings about substantial benefits to a defendant is a legitimate consideration in sentencing. State v. Lighten, 516 So.2d 1266 (La. App. 2d Cir. 1987).

      . Although the trial court wrongly stated that the minimum sentence was 10 years, this was harmless error because the trial court did not manifest an intention to give a sentence near the statutory minimum.

      . The other alleged mitigating factors are numbers 22 (the crime did not threaten serious harm), 23 (defendant did not contemplate serious harm), 27 (defendant is willing to compensate the victim, specifically the confidential informant), 29 (offense resulted from circumstances unlikely to recur), 30 (defendant would likely respond well to probationary treatment), 31 (imprisonment would impose hardship on family), and 33 (other: defendant has admitted drug addiction and is willing to change).

      . These two factors are knowingly creating a risk of death or great bodily harm of others, and being convicted of a CDS crime from which Davis was obtaining substantial income.

      . In 2000, Davis pled guilty to possession of a Schedule II Controlled Dangerous Substance with intent to distribute and received a five-year sentence, and he pled guilty to another similar felony, receiving the same sentence.

      . The charges include possession, use, or sale of drug paraphernalia, illegal possession of stolen things, contributing to the delinquency of a juvenile with drugs in the vehicle, illegal carrying or possession of firearms while possessing a Controlled Dangerous Substance, violation of probation, resisting an officer, prohibited acts under Schedule III, two charges of prohibited acts under Schedule II, and felony theft.