text:
    Fermin NUNEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3156.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG and EMAS, JJ.
   EMAS, J.

Fermín Nunez appeals his conviction of, and sentence for, one count of sexual battery on a person less than twelve years old and one count of lewd and lascivious molestation on a person less than twelve years old. We reverse, because the trial court provided to the jury, during its deliberations, an unredacted forensic interview of the victim, after the court had properly excluded portions of that recorded interview pursuant to a pretrial motion in li-mine.

The facts pertinent to the issue on appeal establish the following:

On July 9, 2010, the five-year-old victim, A.B. was playing video games with his step-grandfather, Fermín Nunez (“Nunez”), in Nunez’s upstairs bedroom. A.B.’s mother and father were at the hospital because A.B.’s father had undergone, and was recovering from, surgery. A.B.’s father was in the hospital for four days, and A.B.’s mother stayed at the hospital to take care of A.B.’s father. Soon thereafter, A.B. confided to his mother that Nunez “touched [A.B.’s] pee-pee,” and “[put] his fingers in [A.B.’s] behind.” Nunez was arrested.

On July 15, 2010, A.B. was taken for a forensic interview at the Kristi House. The forensic interview was recorded onto a DVD, and it is the presentation of the DVD during trial, and during jury deliberations, which forms the basis for this appeal.

The State charged Nunez with one count of sexual battery on a victim under twelve years of age (by digital penetration of the anus), and one count of lewd and lascivious molestation on a child under twelve years of age (by touching the genitals or genital area). Both offenses were alleged to have occurred on July 9, 2010.

Prior to trial, the court considered and ruled upon a motion in limine filed by Nunez. This motion sought to exclude portions of the testimony of A.B.’s mother, as well as portions of the recorded forensic interview of A.B. As to the forensic interview, the defense sought to exclude the following portions.of the interview, alleging that A.B.’s statements referred to collateral crimes or offenses not charged in the information:

1. After A.B. described the specific acts by Nunez on the day in question, A.B. was asked how many times this had happened. A.B. answered: “Every time when my dad was in the hospital.”
2. A.B. was asked how many times Nunez put his finger in A.B.’s butt. A.B. answered: “Every time my mom and dad were in the hospital.”
B. When A.B. was asked if Nunez touched his butt more than one time, A.B. answered: “Yes, three times. Five times.”

The trial court granted this motion in limine and excluded these portions of the recorded interview from trial. During trial, the State introduced a DVD of the recorded forensic interview and began to play it for the jury. However, the DVD had not been redacted. When defense counsel began to hear that portion of the interview which had been excluded by the trial court’s order in limine, he objected and spoke loudly over the DVD audio in an attempt to prevent the jury from hearing the portions which had been excluded. The trial court stopped the DVD, sustained the objection, and directed the State to “[s]kip over that section” of the DVD. The judge excused the jury and, when the jury returned, the remaining portion of the DVD was played.,

During deliberations, the jury sent a written question to the court, which read:

We would like to view the DVD video of the child’s interview, including every second of video we were shown. We realize that some video was edited for us not to see. Please provide instruction on how we are to use the DVD in review.

The trial court sent the DVD into the jury room, with a written response advising the jury: ‘You are to view the entire interview, without any regard to any in court objections that were placed on the record.” Defense counsel objected to the court permitting the jury to view the entire unredacted DVD. The trial court committed reversible error in permitting the jury to view the entire, unredacted forensic interview of A.B., and this error was not harmless.

We reverse the conviction and sentence and remand for a new trial.

      . Although not relevant to our decision, there was a second motion in limine which sought to prohibit the pediatrician from testifying to what A.B. told him during the examination. This motion was denied and that testimony was allowed.

      . A.B.’s mother stated that A.B. told her Nunez "used to do oral sex to him.” The trial court excluded the testimony, and no such testimony was elicited from the mother during trial.

      . The defendant does not appeal the trial court’s pretrial determination that the recorded interview was admissible pursuant to section 90.803(23), Florida Statutes (2010).

      . As indicated earlier, the evidence at trial established that A.B.’s father and mother were in the hospital for four days.

      . The State did not file or serve a notice of its intent to rely upon other crimes, wrongs or acts, pursuant to section 90.404(2)(d), Florida Statutes (2010), which requires that “no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant's counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information.”

      .The State contends that, after the jury was excused, a discussion followed in which the trial court either clarified or reversed its decision regarding the exclusion of portions of the recorded interview, and determined that those portions were in fact admissible. The State contends that these portions were played for the jury upon its return to the courtroom. The defense contends that these portions were not played for the jury and the jury considered this evidence, for the first time, when the trial court sent the unredacted DVD back to the jury room during deliberations. The transcript is entirely unclear on this issue, given that the court reporter did not transcribe the audio portion of the DVD as it was played, making it impossible for this Court to determine precisely what portions were in fact "skipped over” and what portions were actually played for the jury during the trial. See infra note 7. And while we disagree with the State’s interpretation of the proceedings, ultimately it matters not. The singular fact remains that the jury was permitted to consider (either during the trial or in its deliberations) the entire unredacted interview of A.B., including those portions of the interview in which A.B. said that Nunez committed these acts not only on the one occasion charged in the information but "every time” his father was in the hospital, and also heard A.B. say that Nunez did this to him "three times” or "five times.” The admission of this testimony, whether in violation of the order granting a motion in limine or pursuant to a clarified order denying a motion in li-mine, was objected to and was erroneous, as it constituted evidence of collateral crimes neither charged in the information nor properly noticed and determined to be admissible pursuant to section 90.404(2), Florida Statutes (2010). See Williams v. State, 110 So.2d 654 (Fla. 1959) (establishing the “Williams rule” test, later codified in section 90.404). See also Kopsho v. State, 84 So.3d 204 (Fla.2012) (holding the erroneous admission of Williams rule evidence is presumed harmful and amounts to reversible error); Williams v. State, 662 So.2d 419, 420 (Fla. 3d DCA 1995) (accord). See also Peterson v. State, 2 So.3d 146 (Fla.2009) (setting forth the four determinations a trial court must make before deciding whether to admit collateral crimes evidence). The collateral crimes presented by the unredacted DVD constituted "similar fact” evidence of which the State was required to give proper notice under section 90.404(2)(d). Dorsett v. State, 944 So.2d 1207 (Fla. 3d DCA 2006). Any discussion of the ensuing prejudice, which was both obvious and substantial, is unnecessary.

      . Our review in this case was made considerably more difficult by the failure of the trial court to ensure the court reporter transcribed the audio portion of the DVD as it was played to the jury. The trial transcript fails to include any audio portion of the more-than twenty-minute recorded forensic interview. Although this failure did not affect the ultimate outcome of the instant appeal, we take this opportunity to remind trial courts that it is their responsibility to ensure the court reporter makes a good-faith effort to transcribe the audio portion of any recording presented to the jury. See Fla. R. Jud. Admin. 2.535; Martinez v. State, 761 So.2d 1074 (Fla.2000); Greene v. State, 795 So.2d 94 (Fla. 4th DCA 2000); Chavers v. State, 775 So.2d 328 (Fla. 2d DCA 2000).

      . The defense failed to object to the trial court’s decision to send the DVD into the jury room, rather than bringing the jury back into the courtroom to view the DVD. Although this issue was not preserved, we take this opportunity to remind the trial courts that sending a videotaped interview of a child victim to the jury room is error. See Young v. State, 645 So.2d 965, 967-68 (Fla.1994) (holding videotaped out-of-court interview of a child victim, introduced into evidence under section 90.803(23), Florida Statutes (2010), is not allowed to go into the jury room during deliberations but trial court may allow jury to view the videotape a second time in open court upon request pursuant to Rule 3.410).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronald NALLEY, Appellant, v. Jonathan I. ROTSTEIN, Esq, et al., Appellee.
    No. 5D11-3940.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    James P. Kelaher of Kelaher Law Offices, P.A., Orlando, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waraneh & Westcott, P.A., Winter Park, for Appellee.
   PER CURIAM.

We reverse the lower court’s order dismissing the suit for lack of prosecution. The filing of the motion to amend the complaint and the proposed amended complaint within the sixty-day grace period was sufficient to avoid dismissal. Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786 (Fla.2011). The trial court erred by striking the motion and proposed amendment as a sham. Yunger v. Oliver, 803 So.2d 884, 886 (Fla. 5th DCA 2002) (citing Destiny Constr. Co. v. Martin K Eby Constr., 662 So.2d 388, 390 (Fla. 5th DCA 1995)); see also Furst v. Blackman, 819 So.2d 222, 225 (Fla. 4th DCA 2002) (“A sham pleading is one which is ‘undoubtedly false’ and known to be so to the party preparing it.” (quoting Menke v. Southland Specialties Corp., 637 So.2d 285, 286 (Fla. 2d DCA 1994))).

REVERSED AND REMANDED.

TORPY, EVANDER and JACOBUS, JJ., concur.


author: SHEPHERD, J.

text:
    Carlos M. GARCIA, Petitioner, v. Yasmin GARCIA, Respondent.
    No. 3D13-743.
    District Court of Appeal of Florida, Third District.
    March 28, 2013.
    Barranco & Kircher, and A.J. Barranco and Bonnie Riley; Ross & Girten and Lauri Waldman Ross, Miami, for petitioner.
    Kirschbaum, Birnbaum, Lippman & Gregoire and Nancy W. Gregoire (Fort Lauderdale); Padrón & Estevez-Pazos and Luis M. Padrón, Coral Gables, for respondent.
    Before SHEPHERD and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

We treat the instant petition for a writ of prohibition or mandamus as a petition for certiorari and quash the order appointing a special magistrate to hear all discovery matters in this marital dissolution case. As the respondent’s counsel properly concedes, the order, which was entered without consent of the parties, is over-broad and contrary to established law. As stated in Florida Family Law Rule 12.492(b), “without consent of the parties [the trial court] may [only] appoint an attorney as a special magistrate to preside over depositions and rule upon objections.”

Petition granted, and order quashed.


text:
    Julie A. SCHLAX, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 1D12-5710.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Rick A. Sichta and Susanne K. Sichta, Jacksonville, for Petitioner.
    Stuart L. Hartstone and Terence M. Lenamon of The Florida Capital Resource Center, Miami, Amicus Curiae.
    Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, the Justice Administrative Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, Julie A. Schlax, seeks review of an order awarding her $17,000 in attorney’s fees for representing an indigent criminal defendant in a capital case, instead of the $23,670 she requested. Petitioner argues that the trial court departed from the essential requirements of the law in two ways. First, she argues that the trial court erred in limiting her fees without making a finding as to the reasonable number of hours she worked in representing her client. Second, she argues that the trial court impermissibly considered the court’s budget when it limited her fee award. For the reasons explained in Fletcher v. Justice Administrative Commission, (Fla. 1st DCA 2012) 1D12-5709, we grant the petition, quash the fee award, and remand for reconsideration. If the trial court determines that an award greater than the statutory cap is justified, it should make the appropriate findings to support the award.

PETITION GRANTED.

BENTON, C.J., ROWE, and MARSTILLER, JJ., concur.


text:
    Franklin Dillion WARFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1455.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Ronald W. Johnson of Ronald W. Johnson, P.A., Pensacola, for Appellant.

      Pamela Jo Bondi, Attorney General, Samuel A. Perrone, Assistant Attorney General, Virginia Harris, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Brunson, 369 So.2d 945, 947 (Fla.1979) (“We specifically hold that a felon under eighteen years of age who is sentenced to probation, but who subsequently violates that probation in a manner which justifies its revocation, may be sentenced without benefit of a presentence investigation. We further hold that once a juvenile felon has demonstrated his inability to comply with the conditions of his probation and has consequently had it revoked, a presentence investigation is not required before sentencing on any subsequent felonies he may commit.”).

BENTON, C.J., WOLF, and SWANSON, JJ., concur.


text:
    SALOON SAO, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 1D12-4575.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Wendell Finner, Jacksonville Beach, for Appellant.
    Linda Spaulding White of Broad and Cassel, Fort Lauderdale, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order denying his motion to quash service of process, set aside judgment, sale, and order of writ of eviction based upon the court’s failure to conduct an evidentiary hearing. Appellee properly concedes error. “[A] trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment.” Palacio v. Alaska Seaboard Partners Ltd. P’hip, 50 So.3d 54 (Fla. 1st DCA 2010) (citing Seal v. Brown, 801 So.2d 993, 994-95 (Fla. 1st DCA 2001)). “Furthermore, if a moving party’s allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required.” M Therefore, we REVERSE and REMAND for an evi-dentiary hearing.

LEWIS, THOMAS, and MAKAR, JJ., concur.


text:
    In re Carol POWELL-LEXING.
    No. 2013-B-0159.
    Supreme Court of Louisiana.
    Feb. 22, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled client and personal funds in her trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Carol Powell-Lexing, Louisiana Bar Roll number 21033, be suspended from the practice of law for a period of six months, fully deferred, subject to a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Kenneth J. BECK.
    No. 2013-B-0265.
    Supreme Court of Louisiana.
    March 28, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kenneth J. Beck, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In July 2007, the ODC filed two counts of formal charges against respondent in 07-DB-033. Respondent answered the formal charges, admitting the truth of some of the factual allegations but denying that any misconduct occurred. The formal charges were heard by a hearing committee in May 2009.

In July 2009, the ODC filed a second set of formal charges against respondent in 09-DB-050. Respondent answered the formal charges and admitted that he “made errors” in handling the legal matter in question; however, he denied that he committed any intentional misconduct. In December 2010, the ODC filed a third set of formal charges in 10-DB-090. Once again, respondent denied any intentional misconduct occurred. In March 2011, the hearing committee chair granted a motion by the ODC to consolidate 09-DB-050 and 10-DB-090. The consolidated matters proceeded to a formal hearing on the merits conducted by the hearing committee in April 2012.

|2In June 2012, the formal charges pending against respondent were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing all three sets of formal charges.

07-DB-033

By way of background, respondent was the general counsel for Bail Bonds Unlimited (“BBU”), a bail bonding company owned by Louis Marcotte which had a near monopoly on the bond writing business in Jefferson Parish. Respondent considered BBU to be his primary client, and he had a law office in one of Mr. Mar-cotte’s buildings; however, respondent also maintained a separate general civil practice. Norman Bowley was an accountant who worked for BBU as its chief financial officer. In this capacity, Mr. Bowley developed relationships with many of the judges in Jefferson Parish, including Judge Alan Green, a good friend and regular golfing partner of Mr. Bowley’s. Judge Green has since resigned from judicial office and from the practice of law as a result of misconduct which was discovered in the course of “Operation Wrinkled Robe,” an undercover investigation conducted by the FBI and the United States Attorney’s Office into corruption at the Jefferson Parish Courthouse. The federal investigation revealed that BBU inappropriately exerted influence and curried favor with certain judges in |s Jefferson Parish and made improper payments and gifts to the judges and others in exchange for favorable treatment in connection with its bail bonding business.

Count I — The Campaign Contribution Matter

Oh October 22, 2001, Mr. Bowley delivered the sum of $5,000 in cash to Judge Green as a campaign contribution from BBU. This transaction took place in the parking lot of a Gretna country club where Mr. Bowley and Judge Green were playing in a golf tournament. In April 2002, BBU gave a second $5,000 cash campaign contribution to Judge Green, again delivered by Mr. Bowley.

At some point in time, Mr. Marcotte, Mr. Bowley, and respondent had discussed the legality of making a cash campaign contribution to Judge Green. The formal charges allege that the conversation occurred before Mr. Bowley made the first $5,000 cash contribution to Judge Green, and that respondent had assured him the cash payment was both legal and proper, although he knew otherwise. On the other hand, respondent denied that he gave a formal legal opinion to Mr. Marcotte or Mr. Bowley regarding the legality of any specific campaign contribution. Rather, respondent suggests that, during a casual conversation with Mr. Bowley on the way to lunch one day, he responded to a question about the legality of Mr. Marcotte’s giving a cash campaign contribution to a Jefferson Parish judge by commenting that he knew of no law which made such a contribution illegal, although the judge might get in trouble for accepting it. Respondent also contends that this conversation did not occur until the spring of 2002, after Mr. Bowley had already delivered the first contribution to Judge Green.

|4Mr. Bowley subsequently pleaded guilty in the United States District Court for the Eastern District of Louisiana to one count of misprision of felony for his role in this matter. No criminal charges were brought against respondent; however, he was named as an unindicted co-conspirator in the federal government’s case against Mr. Marcotte and Mr. Bow-ley.

The ODC alleges that respondent knowingly gave incorrect legal advice to Mr. Bowley in order to assist BBU and Judge Green in illegal, improper, and/or unethical behavior. The ODC alleges that such conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(f) (knowingly assisting a judge in conduct that is a violation of applicable Rules of Judicial Conduct or other law) of the Rules of Professional Conduct.

Count II — The K-Mart Matter

In connection with respondent’s civil personal injury practice, he undertook the representation of Gloria Lousteau, the plaintiff in a slip and fall case against the K-Mart Corporation. The suit was filed in Jefferson Parish by respondent’s co-counsel and assigned to Judge Green. After a protracted and contentious period of discovery, the case was tried as a bench trial on November 28-30, 2001, several weeks after Judge Green received the first cash contribution at issue in Count I.

At the conclusion of the trial, Judge Green took the slip and fall case under advisement and agreed to receive post-trial memoranda and proposed judgments from the parties. While respondent and defense counsel were preparing their respective post-trial submissions, Mr. Bow-ley golfed with Judge Green. During the outing, Judge Green mentioned to Mr. Bowley that respondent had “tried a good case.” This comment led Mr. Bowley to believe that respondent’s client would win on the merits and that the only question was “how much” would be | ^awarded. Mr. Bowley promptly reported this conversation to respondent, who neither discouraged the flow of information nor reported the inappropriate disclosure to the judge or anyone else.

Approximately two weeks later, respondent and defense counsel submitted post-trial memoranda and proposed judgments. Thereafter, and apparently by mistake, Judge Green signed the proposed judgment which was submitted to him by the attorneys for K-Mart. In so doing, Judge Green dismissed the claims of respondent’s client, Mrs. Lousteau, at her costs.

Respondent was out of town when the judgment was rendered but learned of the dismissal in a telephone conversation with his co-counsel. Upset by this unanticipated result, respondent called Mr. Bow-ley. Respondent told Mr. Bowley about the dismissal ordered by Judge Green, and asked whether Judge Green had said anything suggesting that he (respondent) had offended Judge Green. Respondent also expressed dismay about the situation, stating that he could not believe that if he offended the judge personally “he would take it out on my client.” Respondent asked Mr. Bowley if Judge Green would be receptive to speaking with him (respondent) when he returned to New Orleans. Mr. Bowley told respondent that he expected to see Judge Green shortly and “if it ... allows itself I’ll — I’ll try to find out what happened.” Respondent expressed his appreciation for this offer.

Mr. Bowley did speak with Judge Green about the K-Mart case. Judge Green subsequently vacated his earlier judgment for the defendant and rendered a substantial judgment in favor of respondent’s client, Mrs. Lousteau.

| (¡The ODC alleges that respondent authorized or failed to object to Mr. Bowley’s ex parte communications with Judge Green regarding the K-Mart case, and that such conduct violated Rules 3.5(a) (a lawyer shall not seek to influence a judge by means prohibited by law), 8.5(b) (prohibited ex parte communications), and 8.4(a) of the Rules of Professional Conduct. Respondent initially denied any misconduct but then coneeded that his communications (through Mr. Bowley) with Judge Green during the pendency of the K-Mart case constituted a violation of Rule 3.5(b).

Hearing Committee Report

As previously indicated, the matter numbered 07-DB-033 proceeded to a formal hearing on the merits conducted in May 2009. After reviewing the testimony and evidence presented at the hearing, the hearing committee found the ODC failed to prove any connection between the K-Mart case and the $5,000 contribution BBU made to Judge Green. Specifically, the committee found the ODC failed to clearly establish when the $5,000 contribution was made in relation to the trial of the K-Mart case. The ODC also failed to clearly establish when respondent advised Mr. Marcotte and Mr. Bowley concerning the legality of the contribution, and whether such advice was provided before or after the contribution was made. Nonetheless, respondent did admit that he (through Mr. Bowley) engaged in an ex parte communication with Judge Green while he had a matter pending before the judge, and that such conduct violated Rule 3.5(b) of the |7RuIes of Professional Conduct. The committee found that this improper communication created a strong potential for prejudice and impropriety, and respondent should have known his conduct was wrong. Respondent also admitted that his legal advice concerning the campaign contribution was not correct, though the committee found no evidence he knowingly gave the incorrect advice in order to assist in illegal, improper, and/or unethical behavior. Rather, the committee acknowledged the testimony of respondent and another witness that respondent seemed to really believe his informal advice was correct when he gave it. Based on these findings, the committee found no violation of Rules 8.4(a), 8.4(d), or 8.4(f) as charged in Count I.

In mitigation, the committee noted that respondent seemed genuinely remorseful for his misconduct. He also has no record of prior discipline.

Considering these factual findings, and in light of prior cases dealing with similar misconduct, the committee concluded that the appropriate sanction in this matter is a one-year suspension, with all but three months deferred.

The ODC filed an objection to the hearing committee’s factual findings and legal conclusions. The ODC also objected to the leniency of the sanction recommended by the committee. In his brief filed with the disciplinary board, respondent asserted that the sanction recommended by the committee is too harsh.

09-DB-050

Mrs. Octavia Brown, a widow, died in the fall of 2004, survived by her four children. One of Mrs. Brown’s sons was appointed the administrator of the succession. In April 2005, the administrator discharged George Perez, Jr., the attorney for the succession, and in June 2005, the administrator retained respondent to handle the matter. Mrs. Brown’s succession was rather simple and included cash in a bank account, three pieces of real estate (only two of which were 18mortgaged), and an automobile and household furnishings. There was little debt owed other than the mortgages. Nevertheless, respondent was unable to process the succession proceedings to a judgment of possession prior to the landfall of Hurricane Katrina on August 29, 2005, in part because of the inability of the heirs to agree as to key issues associated with the succession. While there were understandable delays after Katrina, by 2006 respondent still had not yet filed a tableau of distribution reflecting all of the assets and debts of the estate as well as the various claims of the heirs for credits and/or offsets alleged to have been necessary as a result of the improper use of estate funds by one or more heirs.

As a result of these delays, five motions to compel were filed in the succession proceedings in an effort to get respondent to file an amended detailed descriptive list, to file a tableau of distribution, or to publish a tableau of distribution. At various times, the district court ordered respondent to file a detailed descriptive list or amended tableau of distribution by a deadline which respondent failed to honor. In December 2006, respondent was held in contempt of the court’s orders and sanctioned the sum of $1,000 payable to counsel for the mover, plus costs. Respondent did not pay the sanction until September 2008, nearly two years after he was held in contempt and nine months after a complaint was filed against him with the ODC. In April 2009, respondent finally obtained a judgment of possession in the succession of Mrs. Brown.

The ODC alleges that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in the representation of a client), 8.4(c) (knowing disobedience of an obligation under the rules of a tribunal), and 8.4(a) of the Rules of Professional Conduct.

U10-DB-090

Brandon Pitre, an unmarried man with no children, died in December 2001, survived by his mother, Pamela Pitre, and two siblings. In February 2002, Ms. Pitre retained respondent to handle her son’s succession as well as an insurance claim for water damage to his home. Respondent resolved the insurance claim in April 2005; however, he failed to promptly secure a judgment of possession in the succession matter. He also failed to communicate with Ms. Pitre on a timely basis and failed to provide her with sufficient information to participate intelligently in decisions concerning the objectives of the representation.

In August 2009, Ms. Pitre filed a complaint against respondent with the ODC. In September 2010, more than eight years after he was retained in the matter, respondent finally obtained a judgment of possession in the succession of Brandon Pitre.

The ODC alleges that respondent’s conduct violated Rules 1.3, 1.4 (failure to communicate with a client), and 8.4(a) of the Rules of Professional Conduct.

Hearing Committee Report

As previously indicated, the formal charges in 09-DB-050 and 10-DB-090 were consolidated for a hearing conducted in April 2012. After reviewing the testimony and evidence presented at the hearing, the hearing committee found that in 09-DB-050, respondent attempted to convene a meeting shortly after he was retained in order to discuss the amicable resolution of Mrs. Brown’s succession with all of the interested parties. This attempt was rebuked by Mr. Perez (who had been discharged by the administrator as the attorney for the estate but thereafter was engaged by other heirs), although Mr. Perez complained that the problems with resolving the succession were the actions of the administrator. A conference | inbetween counsel was ultimately held on August 17, 2005, during which a plan was formulated to resolve the remaining issues in the case. Unfortunately, Hurricane Katrina intervened, causing nearly all legal activities to be interrupted for several months. Thereafter, Mr. Perez filed a motion to remove the administrator. This motion could not be heard as service on the administrator (who had relocated to Texas after Katrina) could not be made. Eventually, respondent was served as counsel for the succession representative and he was ordered to file a tableau of distribution on behalf of the succession. Respondent was not able to obtain the appropriate information to prepare the tableau, however, as one of the heirs was incarcerated and the administrator was located out of state. During the spring and summer of 2006, respondent did file insurance claims on behalf of the succession, preserving its right to recover for hurricane and flood damage to two pieces of immovable property owned by Mrs. Brown. Respondent was ordered by the court (in his absence on the date of the motion hearing) to file a tableau by September 29, 2006. That date was extended to November 21, 2006 by an order signed on November 29, 2006.

Respondent filed a preliminary tableau of distribution on November 29, 2006, nine days late. Mr. Perez then filed an additional rule for contempt on November 30, 2006, setting a hearing for December 15, 2006. There was no return for service of the rule on respondent. Nonetheless, a contempt hearing was held on December 15, 2006 and in respondent’s absence the court found him in contempt. The court ordered respondent to pay Mr. Perez an attorney’s fee of $1,000 and reset the matter for hearing on January 18, 2007. Respondent paid Mr. Perez’s fee and costs on September 5, 2008.

Counsel for two of the heirs traversed the preliminary tableau of distribution and further hearings were held, ultimately resulting in court-ordered informal meetings between counsel to work out the competing claims. These meetings were |nnot successful and after the administrator was removed, respondent filed a motion to appoint a replacement administrator. The court appointed attorney Katherine Guste as the replacement administratrix. Ms. Guste filed an amended and supplemental tableau of distribution on January 30, 2009. A hearing on the matter was finally held before the court on April 1, 2009, at which time a judgment of possession was entered and the matter was closed.

In 10-DB-090, the committee found that Brandon Pitre’s succession appeared to be relatively uncomplicated, consisting of one piece of immovable property, a vehicle, deposit accounts, and several debts. However, after the succession was opened, conflicts arose between Ms. Pitre and her daughter, and Ms. Pitre was uncertain what she wished to do with the succession assets. Respondent was also called upon by Ms. Pitre to handle other matters during this time.

The succession was not concluded before Hurricane Katrina. Ms. Pitre relocated to Tennessee and a considerable period of time passed before she and respondent reestablished communications. On September 5, 2008, respondent addressed correspondence to Ms. Pitre requesting additional information as necessary to conclude the succession. Ms. Pitre replied, but she did not provide the requested information. A judgment of possession was granted on September 27, 2009, closing the succession. On October 28, 2009, Ms. Pitre requested her file from respondent, which he provided on November 1, 2009.

Based on these factual findings, the committee determined that respondent neglected Mrs. Brown’s succession, in violation of Rule 1.3 of the Rules of Professional Conduct, and violated Rules 1.3 and 1.4 in his handling of Brandon |l2Pitre’s succession. The committee did not find any violation of Rules 3.4(c) or 8.4(a) in the Brown matter.

The committee determined that the applicable baseline sanction in this matter is suspension. As aggravating factors, the committee recognized the following: vulnerability of the victims and multiple offenses. In mitigation, the committee found the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

Turning to the issue of an appropriate sanction, the committee cited In re: Regan, 04-1365 (La.10/15/04), 885 So.2d 514. In Regan, the attorney neglected his client’s legal matter, resulting in the abandonment of the case. Considering the aggravating and mitigating factors present, as well as the fact that the misconduct stemmed primarily from poor law office management, the court imposed a fully deferred six-month suspension with probation. The committee concluded:

Here as in Regan, attorney neglect was one of the causes of the misconduct. There is an absence of a dishonest or selfish motive, and also a number of mitigating factors. Respondent cooperated fully with ODC. Respondent also had several practice problems during the time of misconduct, including the lengthy delays caused by Hurricane Katrina. Respondent’s mishandling of the matters stemmed in large part [from] poor practice management. Although some factual differences between Regan and the present matter exist, the Committee is of the view that Regan supports the committee’s recommendation.

Accordingly, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred.

The ODC filed an objection to the hearing committee’s factual findings and legal conclusions. The ODC also objected to the leniency of the sanction recommended by the committee.

| v?fl7-DB-033, 09-DB-050 & 10-DB-090

Disciplinary Board Recommendation

After reviewing the consolidated matters, the disciplinary board determined that the factual findings made by the hearing committees are not manifestly erroneous, with one exception relating to 07-DB-033 (see note 6, supra). Based on these facts, the board made the following determinations concerning respondent’s misconduct:

07-DB-033: Respondent did not violate the Rules of Professional Conduct as charged in Count I. The testimony in the record does not lead to the conclusion that respondent knowingly gave improper legal advice regarding campaign contributions in order to gain an advantage in the K-Mart case he was litigating in Judge Green’s courtroom. Respondent admits that he now knows his legal advice was incorrect, but the testimony indicates that at the time of his conversation with Mr. Bowley and Mr. Marcotte, respondent believed he was delivering sound, albeit “off the cuff,” advice.

In Count II, the board found respondent violated Rules 3.5(b) and 8.4(a) by communicating through another individual with the judge presiding over the trial of a case being litigated by respondent. Specifically, respondent admits that he did not discourage the ex parte communication between Mr. Bowley and Judge Green with regard to the K-Mart case which was under Judge Green’s consideration. However, the board found respondent did not violate Rule 3.5(a), which prohibits a lawyer from seeking to influence a judge by means prohibited by law, because there is conflicting testimony in the record as to when respondent provided the campaign contribution advice to Mr. Bowley. Without knowing this fact, it is impossible to determine whether respondent was seeking to influence Judge Green to garner a benefit in the K-Mart case.

| u09-DB-050: The board found respondent violated Rules 3.4(c) and 8.4(a) by failing to comply with court-ordered deadlines to file a tableau of distribution in the succession of Mrs. Octavia Brown. He also failed to appear for a court-ordered contempt hearing. However, the board found respondent did not neglect the succession matter because “there was a confluence of events and people that complicated the succession and elongated the process.” Therefore, the board concluded that respondent did not violate Rule 1.3.

10-DB-090: The board found respondent violated Rules 1.3, 1.4, and 8.4(a) in his handling of the succession of Brandon Pitre. Respondent failed to finalize the succession in a timely manner and failed to provide Mrs. Pitre with information regarding his progress in resolving her son’s succession.

The board determined that respondent violated duties owed to Mrs. Pitre (10-DB-090) and to the profession (Count II of 07-DB-033 and 09-DB-050). Respondent’s conduct, as it relates to the succession matters, appears to be negligent. His involvement in ex parte communications, considering his tenure as a lawyer, was knowing. Actual harm to the reputation of the profession has occurred, as any time a lawyer participates in and/or condones communications with a presiding judge, it causes harm and mistrust among fellow members of the legal profession and the public. The baseline sanction for respondent’s misconduct is suspension.

As aggravating factors, the board found the following: multiple offenses, vulnerability of the victims, and substantial experience in the practice of law (admitted 1986). In mitigation, the board found the following factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions (in 09-DB-050), and remorse.

| ^Considering the prior jurisprudence dealing with misconduct similar to respondent’s, the board recommended that respondent be suspended from the practice of law for one year, with all but three months deferred. The board also recommended that respondent be assessed with all costs of this disciplinary proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

The record of this matter supports the factual findings made by the hearing committees, as modified by the disciplinary board. Essentially, respondent engaged in improper ex parte communications with Judge Green, failed to comply with a court order, neglected a succession matter, and failed to communicate with a client. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

11,;We agree that respondent violated duties owed to his client and to the profession, causing actual harm. His misconduct in the succession matters was negligent, but he acted knowingly in communicating with a judge in an ex parte manner. The applicable baseline sanction in this matter is suspension.

The record supports the aggravating and mitigating factors found by the board. These include the following aggravating factors: multiple offenses, vulnerability of the victims, and substantial experience in the practice of law. The mitigating circumstances include the absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse.

Considering the numerous mitigating factors present, we agree that the sanction recommended by the board is reasonable. Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year, with all but three months deferred.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Kenneth J. Beck, Louisiana Bar Roll number 17462, be and he hereby is suspended from the practice of law for one year, with all but three months deferred. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

GUIDRY, J., recused.

       Guidry, J. recused.

      . The formal charges also suggest that another attorney, John Sudderth, had an office in one of Mr. Marcotte's buildings; however, Mr. Sudderth has denied ever maintaining such an office. This factual reference adds nothing to the substantive allegations of misconduct alleged by the ODC against respondent, and therefore we have made no further reference to it.

      . Judge Green resigned from the bench in August 2005, following his conviction of mail fraud. He then resigned from the practice of law in lieu of discipline. In re: Green, 06-0141 (La.2/8/06), 920 So.2d 861.

      . In 2003, BBU was ordered to cease and desist from all activity in the business of insurance. In March 2004, Mr. Marcotte pleaded guilty to RICO charges and was sentenced to serve 38 months in prison.

      . This telephone conversation was intercepted and recorded by the FBI.

      . The judgment rendered by Judge Green totaled $802,843.89, including $725,000 in general damages. On appeal, the court of appeal found the general damage award was excessive and reduced it to $475,000, bringing the total judgment to $552,843.89. Lousteau v. K-Mart Corp., 03-1182 (La.App. 5th Cir.3/30/04), 871 So.2d 618, writ denied, 04-1027 (La.6/25/04), 876 So.2d 835.

      . The disciplinary board subsequently determined that this factual finding is manifestly erroneous, and that the ODC clearly established the following timeline of events:
      October 22, 2001 — Norman Bowley makes a $5,000 cash payment to Judge Green on behalf of Bail Bonds Unlimited.
      November 28-30, 2011 — The K-Mart case is tried before Judge Green.
      April 2002 — Norman Bowley makes a second $5,000 cash payment to Judge Green on behalf of Bail Bonds Unlimited.

      . The committee did not find credible the testimony given by Mr. Perez at the hearing.

      . The committee found Ms. Pitre’s testimony to be "confusing, although she did express her concerns with a lack of communication” by respondent.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Robert FRITH, Appellant.
    No. 46,832-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Fred R. McGaha, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   WILLIAMS, J.

IjThe defendant, Robert Frith, was charged by bill of information with failure to register or update registration as a sex offender, a violation of LSA-R.S. 15:542.1.4. The defendant pled guilty as charged. The district court sentenced defendant to serve seven and one-half years at hard labor without the benefit of parole, probation or suspension of sentence. The defendant appeals his sentence as excessive. For the following reasons, we affirm.

DISCUSSION

The defendant, a convicted sex offender, reported to the Ouachita Parish Sheriffs Office and registered his address as 229 Lynette Drive in West Monroe, Louisiana. On February 2B, 2010, Deputy Michael McLain went to the defendant’s reported address for a routine check and discovered that the residence was vacant. Upon further investigation, Deputy McClain learned that no one had lived at that address for approximately six months and that the house did not have electricity. Subsequently, the defendant was arrested and charged with failure to register or update registration as a sex offender. Defendant pled guilty as charged and the district court ordered a presentence investigation (“PSI”) report. Defendant was sentenced to serve seven and one-half years at hard labor without the benefit of parole, probation or suspension of sentence. The defendant’s motion to reconsider sentence was denied and this appeal followed.

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that a lesser sentence is appropriate considering the circumstances of the case and the hardship on his family.

| ⅞An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.O.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.l 1/3/10), 55 So.3d 56. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, the reviewing court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. LSA-R.S. 15:542.1.4(A)(1) provides that a person who fads to register as a sex offender, to renew and update registration or to notify law enforcement of a change of address or other registration information “shall, upon first conviction, be fined not more than $1,000 and imprisoned at hard |slabor for not less than two years nor more than ten years without benefit of parole, probation or suspension of sentence.”

At sentencing, the district court reviewed a PSI report, which showed that the defendant is a fourth-felony offender, with prior convictions for sexual battery in February 1992 and June 1997 and for failing to register as a sex offender in August 2008. The court considered the guidelines of Article 894.1, finding that there was an undue risk the defendant would commit another crime during a period of a suspended sentence or probation, that the defendant was in need of correctional treatment most effectively provided by his commitment to an institution and that any lesser sentence would deprecate the seriousness of the crime.

Regarding the defendant’s personal history, the court was aware of defendant’s age, that he had dropped out of high school, that he had been employed and that he was unmarried without any children. In addition, the court was “particularly concerned” that the present offense was defendant’s second conviction for failure to register as a sex offender and indicated defendant’s refusal to follow the law.

The record demonstrates that the district court was cognizant of the appropriate factors in determining the defendant’s sentence, which is within the statutory range for the offense of conviction. The sentence of seven and one-half years imposed was tailored to fit this defendant and is neither grossly disproportionate to the severity of the offense committed nor an abuse of the district court’s discretion. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.

|4We note that Section 542.1.4(A)(1) mandates that the offender be fined “not more than” $1,000. Thus, the district court has the discretion to determine the amount of the fine up to $1,000. Here, the district court did not impose a fine in sentencing the defendant. We conclude that where no minimum fine is provided by statute, the district court did not abuse its discretion in omitting the fine. See State v. Francois, 06-788 (La.App. 3rd Cir.12/13/06), 945 So.2d 865; State v. Legett, 02-0153 (La.App. 4th Cir.5/22/02), 819 So.2d 1104. Consequently, we find no error patent on this record.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: DECUIR, Judge.

text:
    STATE of Louisiana v. Joseph SAVOY.
    No. 11-1326.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Earl B. Taylor, District Attorney, Jennifer M. Ardoin, Assistant District Attorney, Opelousas, LA, for Appellee, State of Louisiana.
    Beth S. Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Joseph Savoy.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

| defendant, Joseph Savoy, was convicted of aggravated kidnapping, a violation of La.R.S. 14:44, at a bench trial on July 26, 2011. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, consecutive to any other sentences he was already serving. This was Defendant’s eighth felony; he was previously convicted of obscenity, simple burglary (twice), molestation of a juvenile, first degree robbery, aggravated rape, and armed robbery. Defendant appeals his conviction, alleging the trial court erroneously allowed DNA evidence to be introduced at trial without the testimony of the technician who cut the samples from which the DNA was extracted. Defendant’s conviction is hereby affirmed.

FACTS

On June 28, 1994, Defendant forced his way into the home of the forty-four year-old victim, J.S., and forced her to perform oral sex on him. After Defendant ejaculated on her, she wiped her face on her shirt. Defendant moved J.S. into a closet in her bedroom, closed the door, and moved a large chest of drawers and a bed in front of the door. Defendant took J.S.’s purse, stole her car, and fled the scene.

J.S. was unable to pick out Defendant from a photo lineup on November 24, 2008, more than fourteen years after the attack. At trial, however, she testified she did not know how she did not identify him from the lineup because his identity was so obvious to her at trial. She recognized “[t]hat round head and those sunken eyes,” “that smirky look on his face,” “[a]nd the size of him” with “not a shadow of a doubt” when she saw him in person.

[;>At trial, J.S. identified the shirt she was wearing at the time of the attack. The shirt, when exhibited at trial, contained holes that had been cut in it that were not present when J.S. last wore it. The evidence revealed that, in 1994, Arthur Young, of the Acadiana Crime Lab (ACL), had cut out pieces of the shirt which appeared to contain semen stains. The cuttings were stored as evidence in the case and were later submitted for DNA testing. Eventually, the DNA profile generated from the cuttings was matched to Defendant, and he was implicated in this crime.

As his sole assignment of error in this appeal, Defendant contends the trial court violated Defendant’s constitutional right to confront -witnesses by allowing DNA evidence to be introduced without Mr. Young’s testimony. For the following reasons, we find no merit to this assignment of error.

EVIDENCE

Carolyn Booker, forensic DNA analyst and administrator of the Combined DNA Index System (CODIS) database at the Acadiana Crime Lab in New Iberia, testified CODIS “contains DNA profiles from evidence and from individuals.” DNA profiles of individuals convicted of felony offenses in Louisiana are entered into CO-DIS. Also entered are the DNA profiles generated from physical evidence recovered at the scene of a crime. Searches are performed using the database “in order to solve unsolved cases” by matching the DNA evidence.

When a serial killer appeared in Louisiana in 2002 and 2008, ACL and the State Police Lab received a grant from the Louisiana Legislature to review “old unworked sexual assaults” in an effort to find a living victim of the ^murderer. ACL went through its files of unsolved crimes back to 1986 that “had evidence or a potential for evidence to get a DNA profile.” ACL outsourced approximately three hundred of the cases. When the work was completed, ACL reviewed the DNA profiles generated and entered them into CODIS.

When ACL gets a “hit” or a match on a profile it has entered into CODIS, Ms. Booker notifies the State Police Lab that ACL is interested in knowing the name of the convicted felony offender associated with the database number. The State Police Lab then retests its sample to verify that the same profile is generated. If it is, ACL is given the name, and ACL provides the name to the law enforcement agency that submitted the case. That agency obtains a new sample from the individual, and ACL works it to make sure it generates the same DNA profile. ACL does not rework the initial sample obtained from the victim.

Each case submitted to ACL by a law enforcement agency is assigned a number. When a sample comes into ACL and a number is assigned, the evidence custodian puts a chain of custody form with it and both are stored in a vault. The sample is assigned to a technician, such as Arthur Young, and a chemist. At some point, the technician does a preliminary examination of the sample; if there is anything to be removed or obtained from the item, the technician cuts it out and stores it “for now and perpetuity.” Only cuttings are saved; the original items are returned to the submitting agency.

14 One of the items selected for analysis as a result of the Derrick Todd Lee case was a semen stain from J.S.’s shirt. Cuttings from the shirt had been taken by Mr. Young of ACL in 1994, given case number 94-2195, and stored until Ms. Booker sent them to DNA Reference Laboratories (DRL) in San Antonio, Texas for workup in J.S.’s unsolved case. Mr. Young’s work, which did not involve DNA testing, was done before Ms. Booker and George Schi-ro, the DNA technical leader at ACL, were employed there.

Dr. Nasir Butt of DRL personally examined the cuttings from 94-2195 and generated a DNA profile that he subsequently submitted to ACL. The examination included an analysis that detected the presence of seminal fluid. Dr. Butt was confident the profile was accurate and scientifically valid. Mr. Schiro entered into CODIS the profile generated by Dr. Butt. The CODIS system indicated “a match or a hit” with “an individual in the [CODIS] data base” who was initially identified by a number.

Pursuant to this match, on September BO, 2004, Detective Bobby Howard of the Lafayette City Police Department obtained a search warrant for Defendant’s blood sample. James Coley, a medical laboratory technician, drew Defendant’s blood at the Louisiana State Penitentiary in Angola. Mr. Coley’s practice was to verify a donor’s identity, collect the sample, label it in the donor’s presence, and place it in a sealed, tamper-proof container. He testified he collected Defendant’s blood sample according to the protocol for seizing DNA evidence.

Mr. Schiro analyzed the blood stain card, made from Defendant’s blood sample and assigned ACL number 04-4883, for DNA. He knew a CODIS match had been made with the sample from ACL number 94-2195. He [..¡specifically looked to see if the blood from 04-4883 showed the same DNA profile as 94-2195. Mr. Schiro had a lot of confidence in the CODIS match “[b]ased on the quality control that is in place for that system,” but he did not accept it without his own analysis. He found “[t]he DNA profile obtained from the — the shirt matched the DNA profile obtained to — to the reference blood sample of [Defendant].” He then determined “[t]o a reasonable degree of scientific certainty, [Defendant] was the source of the — of the DNA from the sperm fraction in that piece of shirt.”

When Mr. Schiro testified at trial about the cuttings Mr. Young had taken, Defendant’s counsel moved to exclude any testimony about “anything done on that shirt.” He argued Mr. Young identified semen on the shirt and performed “the basic testing, the basic work on this whole case” and was “integral to any testimony.” The trial court ruled “individuals need not be present for purposes of establishing” “the chain of custody, the authenticity of the sample, and the accuracy of the device,” based on the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

ANALYSIS

The Sixth Amendment to the United States Constitution entitles Defendant to confront witnesses who bear testimony against him. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). “ ‘Testimony[ ]’ is ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 1364 (citation omitted). “The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[ ]....” Melendez-Diaz, 129 S.Ct. at 2542. Surrogate testimony “introducing] a | ^forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification[ ]” does not satisfy the Confrontation Clause. Bullcoming v. New Mexico, — U.S.-, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011).

Here, testing confirmed J.S.’s testimony that she wiped Defendant’s semen on her shirt. Testimony about those tests, the profiles they generated, and the resulting DNA matches established and proved the facts. The tests, and the testimony about them, provided evidence against Defendant, not the act of cutting fabric which Mr. Young suspected to contain semen. Mr. Young made no “certification” to the court by clipping samples later subjected to tests, and his actions cannot be equated with the “ ‘core class of testimonial statements’ ” envisioned by Melendez-Diaz and intended to prove a particular fact. 129 S.Ct. at 2532. The cutting of the samples merely preserved the basis for the tests and profiles that eventually provided the evidence against Defendant. “[I]t is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Id. n. 1.

In the course of the investigation of this crime, Mr. Young simply identified stains he suspected to be semen and preserved those samples according to ACL’s protocol. Years later, Dr. Butt confirmed Mr. Young’s suspicion and independently identified seminal fluid on the cuttings Mr. Young had collected. Dr. Butt offered the testimonial statement at trial that he developed a DNA profile from the cuttings. Ms. Booker offered the testimonial statement that the profile developed by Dr. Butt matched a DNA profile that |7COPIS identified as belonging to Defendant. Mr. Schiro offered the testimonial statement that the blood sample given by Defendant in 2004, in response to the CODIS match, showed the same profile developed by Dr. Butt. All of these witnesses crucial to Defendant’s identification — Dr. Butt, Ms. Booker, and Mr. Schiro — testified at trial and were subject to Defendant’s cross-examination. Their testimony satisfied the Sixth Amendment and Crawford/Melendez-Diaz/Bullcoming requirement that testimonial statements must be subject to cross-examination.

By contrast, in State v. Bolden, 11-237 (La.App. 3 Cir. 10/5/11), 103 So.3d 377, the same Mr. Arthur Young actually tested the evidence and generated a DNA profile which was eventually matched to the defendant Bolden. This court determined that if the State was allowed to use the results of Young’s work, then Young had to be made available for confrontation and cross examination. Such is not the case herein.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The serial killer was later identified as Derrick Todd Lee, who was convicted through DNA evidence and sentenced to death. State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Victor Everatt STEWART, Appellant.
    No. 47,679-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Victor Everatt Stewart, Pro se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Smith, Santi Parks, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

| ,This criminal appeal arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Victor Everatt Stewart, pled guilty to two counts of attempted forcible rape, violations of La. R.S. 14:27 and 14:42.1. He was subsequently sentenced to 20 years at hard labor on each count, with the sentences to be served consecutively. Stewart now appeals, and for the following reasons, we affirm his convictions and sentences.

Facts

Stewart was charged by bill of information with two counts of aggravated rape. Specifically, the bill charged that between June 1 and July 31, 2010, Stewart committed aggravated rape upon S.L., a nine-year old, and C.H., a ten-year old, in violation of La. R.S. 14:42. Stewart initially pled not guilty as charged.

In October 2011, Stewart appeared before the trial court with his attorney from the Public Defender Office for Bossier Parish, at which time Stewart withdrew his original plea of not guilty on both counts and pled guilty to two counts of the amended charge of attempted forcible rape. During a thorough Boykin examination, Stewart was specifically asked whether anyone had made any promises to persuade him to plead guilty or whether anyone had coerced him into pleading guilty. Stewart answered both questions with an unqualified “no.” In reciting the facts, the State noted that at trial it would present evidence that during July 2010, Stewart attempted to forcibly rape S.L. and C.H. by using the threat of force to coerce the victims to have oral and/or anal sex with him. Asked whether [2that recitation of the facts was correct, Stewart answered in the affirmative. With that, Stewart’s guilty plea to both counts was accepted by the trial court.

Shortly thereafter and before his sentencing, Stewart sent a letter to the trial court expressing his desire to withdraw his guilty plea. In the letter, Stewart stated that he had been manipulated into accepting the plea through the actions of his trial attorney, Michael Miller. The trial court treated the letter as a motion to withdraw a guilty plea, set the matter for contradictory hearing, and appointed new counsel to represent Stewart during that hearing. After the conclusion of the evidence, the trial court denied the motion to withdraw. It reviewed the procedure in taking Stewart’s plea and deemed Stewart’s response to the trial court during that process to be more credible than his testimony at the motion to withdraw. The trial court noted that nothing was observed of Stewart’s demeanor on the day of the plea which indicated that his plea was not knowing and voluntary. Finally, the trial court opined that Stewart had simply changed his mind.

Subsequently, Stewart came for sentencing. Prior to imposing sentence, the trial court reviewed the presentence investigation report (“PSI”) indicating that Stewart was 17 years old at the time of his offenses and 18 years old at the time of sentencing. After making other references to the PSI, the trial court sentenced Stewart to 20 years at hard labor on each count, to be served consecutively. No motion to reconsider sentence was filed by the defendant, and this appeal ensued.

| ¡¡Discussion

Sentencing

In his first assignment of error, Stewart maintains that the trial court erred by imposing excessive sentences for each of the counts and failed to give sufficient weight to the mitigating factors. The State argues that in light of the benefit received by Stewart as a result of his plea bargain, the sentence imposed is not excessive. We agree.

Louisiana C. Cr. P. art. 881.1 applies to Stewart’s sentence, and precludes a defendant from presenting sentencing arguments to the court of appeal that were not presented to the trial court. In such a circumstance, a defendant is simply relegated to having the appellate court consider the bare claim of constitutional exces-siveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.04/06/05), 899 So.2d 733.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.04/30/08), 981 So.2d 792. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 |4(La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

The sentencing range for forcible rape is “imprisonment at hard labor for not less than five nor more than forty years,” with at least two years to be served without benefits. La. R.S. 14:42.1(B). Since Stewart was convicted of attempted forcible rape, he was subject to receive one-half of the maximum sentence for forcible rape, or 20 years. See La. R.S. 14:27.

In the instant case, the sentences imposed are neither grossly disproportionate to the severity of the offense, nor do they shock the sense of justice considering the crimes committed by Stewart. In fact, despite his plea to a lesser offense, Stewart’s actual conduct more accurately falls under the definition for the offense of aggravated rape which is punishable by mandatory life imprisonment. See La. R.S. 14:42(D). Additionally, by all accounts, Stewart inflicted permanent damage on his two young victims. In preparing the PSI, the investigator spoke to both of the victims’ mothers. In the PSI, S.L.’s mother indicated that her son had changed from a playful carefree child to an introverted, fearful child who isolates himself, and C.H.’s mother stated that her son attends monthly counseling sessions, but that he is adjusting well. The trial court also heard from S.L.’s mother and uncle during the sentencing hearing. They both testified how S.L. had been changed by these events.

The trial court considered Stewart’s PSI and any mitigating factors. It noted that: Stewart was one of four half-siblings born to the same mother by four different fathers; Stewart’s own father was absent; he reported being molested by an uncle at five years of age; Stewart had a 10th grade ^education; he was diagnosed as bipolar and ADHD. The PSI also showed that Stewart claimed to attend the Missionary Baptist Church every week until he was arrested. Additionally, the PSI reflected that Stewart had no adult criminal history, and although he had a juvenile record, no details were available.

Of notable consideration, the PSI described interviews by the Gingerbread House (a children’s advocacy center serving abused children) wherein the victims (9 and 10 years old at the time of the offense) had stated that Stewart “used his penis to sexually assault them orally and anally” and that his victims were forced to perform oral sex on him as well. The victims also stated Stewart had threatened them with physical harm if they did not do as told.

The fact that Stewart was young when he committed the offenses and was allegedly molested himself as a young boy is not sufficient in the way of mitigation to warrant a finding of unconstitutional ex-cessiveness. Stewart committed heinous crimes upon these two, very young boys whose lives may be forever affected. Stewart’s own young age is unfortunate, but he was certainly old enough to know better and deserves his punishment. The trial court’s sentence was in no way excessive, and, in fact, Stewart benefltted greatly from his plea deal. We conclude that this assignment is without merit.

\ (Motion to Withdraw Guilty Plea

Stewart brings two pro se assignments of error. First, he argues that the trial court erred and abused its discretion in denying his timely motion to withdraw guilty plea. Stewart maintains that the trial court erred in light of the evidence of coercion by his attorney, his mother and his sister to accept the State’s offer. Stewart argues that he repeatedly asserted his innocence, and his attorney’s testimony at the hearing was self-serving and should not have been deemed credible.

A trial court may permit the withdrawal of a guilty plea at any time before sentencing. La. C. Cr. P. art. 559(A). The discretion to allow withdrawal of a guilty plea under art. 559(A) lies with the trial court and such discretion cannot be disturbed unless an abuse or arbitrary exercise of that discretion is shown. State v. Calhoun, 1996-0786 (La.05/20/97), 694 So.2d 909; State v. Harris, 48,069 (La.App.2d Cir.03/19/08), 980 So.2d 174. A defendant has no absolute right to withdraw a guilty plea. Id. Generally, the denial of withdrawal of a guilty plea will not be reversed on appeal when the record shows the defendant was informed of his rights and the consequences of the plea and that the plea was entered voluntarily. State v. Hams, supra at 178. When ruling on a motion to withdraw a guilty plea, the district court should look beyond the Boykinization and consider all relevant factors, such as the breach of a plea bargain, inducement, misleading advice of counsel, strength of the evidence of actual guilt, or the like. Id.; State v. Burnett, 33,789 (La.App.2d Cir.10/04/00), 768 So.2d 783, writ denied, 2000-3079 (La.11/02/01), 800 So.2d 864. A defendant’s |7change of heart, or misunderstandings with counsel, do not usually render a guilty plea involuntary. Id.

Initially, we observe that there is nothing to suggest that Stewart’s guilty plea was anything but voluntary. The transcript of the Boykin examination clearly indicates the trial court informed Stewart of his rights. The trial court also explained the terms of the plea agreement, and Stewart made clear his decision to plead guilty without having been forced, threatened, or coerced. Miller, Stewart’s counsel at the time, acknowledged that he informed Stewart of his rights prior to the hearing as well as the consequences of his guilty plea and that he was satisfied Stewart’s guilty plea was a voluntary act on his part. Thus, there is nothing in the record to indicate that Stewart’s guilty plea was invalid.

Furthermore, the trial court carefully considered the reasons for Stewart’s motion to withdraw his plea in addition to the actual plea proceeding. At the hearing on the motion to withdraw, Stewart and his sister, Jennifer Stewart, both testified to the events of the day on which the plea was entered. According to Stewart, he was in the courthouse holding cell because his case was set for trial. He described how Miller came to the cell and communicated the State’s offer to allow him to plead to attempted forcible rape with a sentencing exposure of 0 to 20 years. Stewart testified that he declined the offer and insisted on going to trial. As related by Stewart, Miller advised him that if he went to trial he faced the possibility of two life sentences, a risk Stewart indicated he was willing to take. Miller then told Stewart’s mother and sister that he had refused the State’s offer. According to Stewart, Miller had Stewart’s sister write him a note to 18encourage him to take the plea, a note Miller delivered to the holding cell. In the note, his sister allegedly told Stewart that he would only receive probation; however, Stewart continued to refuse the deal. Stewart testified that Miller then sent his crying mother and sister to visit him in an effort to persuade him to take the deal. It was under this pressure that Stewart alleges to have succumbed and decided to take the plea deal. Stewart also contended that throughout the discussions, Miller had represented to him that if he pled to attempted forcible rape he would only receive probation.

Jennifer Stewart also appeared at the hearing on the motion to withdraw, and she claimed that on the day of her brother’s trial, Miller had informed her and their mother that Stewart had turned down the State’s plea offer. The offer was for attempted forcible rape with the benefit of a PSI and Miller informed them if the investigation showed no prior criminal history, Stewart would “possibly, more than likely, get probation.” Jennifer testified that she wrote her brother a note and talked to him that day to try and encourage him to take the plea and that she was not forced to do so by Miller. She said Miller made no guarantees about probation although he did make repeated mention of it.

Miller testified as well at the hearing. According to Miller, on the day in question he was ready to proceed to trial when the State tendered the offer of two counts of attempted forcible rape with the benefit of a PSI, but no further agreement as to sentencing. Miller recalled that he communicated this offer to Stewart in the courthouse holding cell and that the defendant initially rejected the offer. Stewart countered with an offer of misdemeanor carnal knowledge, which the State rejected. Miller testified [¡¡that Stewart’s mother and sister introduced themselves to him and asked whether Stewart was going to take the deal. When they learned he was not, Miller confirmed that Jennifer wrote a note to her brother and asked Miller to deliver it to him. Miller delivered the note to Stewart, but did not read it before delivering it. After reading the note, Stewart went back and forth on whether he would accept the State’s offer, but finally concluded he would not. When Miller informed Stewart’s mother and sister, they asked to speak to him. Miller initially told them they could not, but a nearby “jailer” indicated there was a visitation window for them to talk to Stewart. Miller said he did not participate in or witness the conversation. When Stewart decided to take the deal, Miller testified that he went over Stewart’s rights and instructed him that the trial court would ask him a series of questions to which he needed to respond, but denied that he instructed Stewart on how to respond.

In considering all the testimony on Stewart’s motion, the trial judge expressly found that Stewart’s testimony was not credible as to being misled by Miller and the coercion he felt from his attorney and family members. Since credibility determinations are within the purview of the trier of fact, it cannot be said that the trial court’s denial of the motion on this basis was an abuse of discretion. Notably, Stewart was explicitly asked at the guilty plea whether he had been advised by his attorney and whether he was satisfied with his representation. Stewart responded, “Yes, sir....” When also questioned whether his plea was voluntary, he again responded affirmatively. Here, it is evident that Stewart was fully informed of his rights and his plea was voluntary. His later testimony to the contrary was | ^obviously not believed by the trial court. After considering the guilty plea proceeding and other relevant factors before it, the trial court was within its discretion in determining that Stewart was not entitled to withdraw his plea. Thus, we conclude that this assignment of error is without merit.

Error Patent

In his second pro se assignment of error, Stewart requests a review of the record for error patent on the face of the record, something this court does on all appeals. A careful review of the record for error patent was conducted in accordance with the guidelines laid down in State v. Oli-veaux, 312 So.2d 337 (La.1975), and none were found.

Conclusion

For the foregoing reasons, the convictions and sentences of Victor Everatt Stewart are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Kenneth Ray DUNCAN, Appellant.
    No. 47,697-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, G. Mennon Campbell, Brandon B. Brown, Douglas R. Haynes, II, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and SEXTON (Pro Tempore), JJ.
   MOORE, J.

|! Kenneth Ray Duncan appeals his sentences, totaling 60 years, for being adjudicated a second felony offender after his convictions on one count of distribution of cocaine and one count of possession of cocaine. For the reasons expressed, we affirm.

■ In February 2010, the Ouachita Parish Sheriffs Office special crimes apprehension team (“SCAT”) was conducting a “buy-bust” operation in areas of the parish with high drug traffic. While four SCAT members surveilled from an unmarked van on Selman Drive, two undercover officers approached Duncan, who was sitting in a white car in the Wilshire Apartments parking lot. The undercover officers asked Duncan if he had a $20 rock of crack cocaine; Duncan replied that he did. One of the officers gave him a $20 bill with a prerecorded serial number, after which Duncan brought the crack to the officer’s car. Upon receipt of the cocaine, the undercover officer signaled the SCAT members, who sprang from the back of the unmarked van and placed Duncan under arrest. A search of Duncan’s person yielded $3,844, including the prerecorded $20 bill, and a small medicine bottle containing 10 additional rocks of crack. Lab analysis confirmed that the substance sold to the undercover officer, as well as the rocks seized from Duncan’s pocket, were crack cocaine.

The state charged Duncan by bill of information with one count of distribution of cocaine, La. R.S. 40:967 A(l), for selling the crack to the undercover agent, and one count of possession of cocaine with intent to distribute, R.S. 40:967 A(l), for having the additional crack in his pocket. After a two-day trial, the jury found him guilty as charged on the first count Land guilty of simple possession of cocaine on the second.

The state then charged Duncan as a second felony offender, La. R.S. 15:529.1 A(l)(a), citing a 2006 conviction for unauthorized use of a motor vehicle. Pursuant to a plea agreement, Duncan agreed to plead guilty as charged in exchange for the state’s promise not to charge him as a third or fourth felony offender even though grounds for such charges existed. The district court found that Duncan’s plea was knowingly and intelligently entered, and ordered a presentence investigation (“PSI”) report.

At the sentence hearing, the district court filed and read into the record a 14-page ruling. Citing the PSI, the court stated that this was actually Duncan’s seventh felony conviction; astonishingly, the predicate felony, unauthorized use of a motor vehicle, had occurred the very day he was released from a two-year prison sentence for simple burglary. The court found that Duncan had a criminal history spanning 26 years and two states, seven felonies and a string of misdemeanor arrests and convictions including burglary, theft, possession of stolen things, drug offenses and domestic violence, making him the “worst offender.” The court imposed maximum sentences of 60 years at hard labor for distribution and 10 years at hard labor for possession, to run concurrently.

Duncan now appeals, urging only that his combined sentences of 60 years at hard labor are excessive in that they constitute a life sentence. He concedes that he has a criminal history and was adjudicated a second felony | (¡offender, but urges that he is not the worst of offenders and that the court failed to consider any mitigating factors present in the case. He does not cite any such factors, but concludes that the goals of punishment and rehabilitation could be better achieved with a less severe sentence.

Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the district court’s compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. However, when a defendant files no motion to reconsider sentence in the lower court, appellate review is limited to the second step, an analysis of the sentence for constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied, 2010-2682, -2706 (La.4/25/11), 62 So.3d 82, 89. The record does not show that Duncan filed a motion to reconsider, so our review is limited to the bare claim of constitutional excessiveness. We would note, however, that the district court’s per curiam is comprehensive and shows exemplary compliance with Art. 894.1.

A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Normally, |4sentences at or near the maximum are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665. Nevertheless, the sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7. The benefit accruing from a plea bargain is a relevant consideration in reviewing a sentence for excessiveness. State v. LeBlanc, 2009-1355 (La.7/6/10), 41 So.3d 1168; State v. Guzman, supra.

As a second felony offender convicted of distribution of cocaine, Duncan faced a sentence range of 15 to 60 years at hard labor. La. R.S. 15:529.1 A(l), 40:967 B(4)(b). Had he been charged as a fourth felony offender, with a drug offense and two predicate crimes of violence, he would have faced a mandatory life sentence at hard labor without benefits. La. R.S. 15:529.1 A(4)(b). Although the difference is perhaps academic, Duncan received a significant benefit from the state’s agreement not to charge him to the extent his record would allow.

There is really no need to reiterate Duncan’s appalling criminal history, already ably related by the district court. Dating back to 1987, when Duncan was 17 1/2 years old, it includes seven felony convictions, numerous misdemeanor convictions and even more arrests with no dispositions shown. With the district court, we find that Duncan’s modus vivendi has been crime, at first burglary, theft and drug dealing, and more recently domestic abuse, a criminal career interrupted only by brief intervals |sof employment and longer stretches in jail. At least two prior terms of probation were revoked for criminal activity, and the predicate offense of unauthorized use of a vehicle occurred the very day Duncan was released from a two-year hard labor sentence for simple burglary. Short sentences and probationary terms have utterly failed to curb his criminal propensities. This sentence of 60 years, though tantamount to life, appears to be society’s final option. We perceive no constitutional excessiveness.

Finally, we have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). The convictions and sentences are therefore affirmed.

AFFIRMED.

      . The 60-year sentence included two years without benefit of parole, probation or suspension of sentence under La. R.S. 40:967 B(4)(b) and the remainder without benefit of probation or suspension of sentence under R.S. 15:529.1 G. The 10-year sentence was also without benefit of probation or suspension of sentence under R.S. 15:529.1 G.