author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Joseph Christopher AUSTIN.
    No. 12-KA-629.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 18, 2013.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintiff Appel-lee.
    Joseph Christopher Austin, Kinder, LA, In Proper Person.
    Frederick J. Kroenke, Jr., Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

pOn February 11, 2010, defendant, Joseph Christopher Austin, was charged in a fourteen-count indictment with nine counts of illegal possession of stolen things (counts 1-9), in violation of LSA-R.S. 14:69, and five counts of simple burglary (counts 10-14), in violation of LSA-R.S. 14:62. He was arraigned and pled not guilty to all charges. Thereafter, the State amended the indictment, dismissing counts 1 through 9 and 11, and proceeded to trial on counts 10, 12, 13, and 14. On July 27, 2011, a six-person jury returned a verdict of guilty as charged on all counts.

The State filed a multiple offender bill of information alleging defendant to be a fourth felony offender. On September 14, 2011, after a hearing, the trial court found defendant to be a second felony offender. Defendant was sentenced to six years at hard labor on each count, to run consecutively, for a total of twenty-four years. Defendant appeals.

UFACTS

At approximately 2:30 a.m. on July 25, 2009, Deputy Daniel Bergeron of the St. Charles Parish Sheriffs Office responded to a report of a Lexus vehicle crashing in a parking lot of an apartment building on Lakewood Drive in Luling, Louisiana. A witness informed the officer that she had séen two white males fleeing the vehicle. The vehicle did not have a license plate on it, but had a temporary tag affixed to the rear window. It was determined that the temporary tag had been stolen from a car dealership in Jefferson Parish. A check of the vehicle identification number (VIN) revealed that it was registered to Cherie Suhor.

Approximately two hours later, Deputy Bergeron responded to a report of a vehicle burglary on Willowdale Boulevard, where the victim informed the officer that a black Mizuno bag, among other things, had been taken from his vehicle. Deputy Bergeron recalled that he had just seen a black Mizuno bag in the crashed vehicle he had investigated hours before. Deputy Bergeron testified that the owner of the bag accompanied him back to the scene of the crash where he identified the bag as his own.

David Boudry testified that his Toyota Corolla was burglarized on the evening of July 25, 2009, at his residence on Willow-dale Boulevard in Luling. A pair of Nike shoes, trash bags, baseballs, and a Mizuno duffel bag were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.

Eric Berteau testified that his Toyota Tacoma was burglarized on the evening of July 25, 2009, at his residence on Lakewood Drive in Luling. A laptop computer, an iPod and accessories, a book, and a pair of running shoes were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.

| Jonathan Warren testified that his vehicle was burglarized on the evening of July 25, 2009, at his residence on Beaupre Drive in Luling. A book of CD’s, a half carton of cigarettes, and a red flashlight were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.

Randy St. Blanc testified that his Toyota Sequoia was burglarized on the evening of July 25, 2009, at his residence on Beaupre Drive in Luling. A pair of sunglasses and a change holder were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.

Cherie Suhor testified that she had known defendant since they were children and that defendant lived with her from April 2009 to January 2010. In July 2009, Suhor lived in Metairie with her two sons, defendant, defendant’s girlfriend, and defendant’s baby. At the time, Suhor owned a Lexus, and she and defendant each had a set of keys for the vehicle.

Errol Falcon, Jr. testified that he was defendant’s friend and had known him for 16 or 17 years. Falcon testified that on the morning of July 24, 2009, he met defendant at his residence, and they went to some stores. Defendant had to bring Su-hor to work later that day, so Falcon brought defendant back home before he left for Biloxi, Mississippi. When Falcon arrived back in Louisiana later that night, defendant was at Falcon’s house. Defendant told Falcon that he had committed several vehicle burglaries, that the police were after him, and that he had to ditch the Lexus in the Lakewood area. Defendant had to pick up Suhor from her job in Gramercy, and because he did not have a vehicle, Falcon drove defendant in his vehicle to pick her up.

Meanwhile, earlier in the evening, around 9:43 p.m., Suhor had called her boyfriend, Damien Schnyder. Thereafter, he came to her place of work. Later, in the early morning hours of July 25, 2009, when Suhor finished work, defendant | sand Falcon picked her and Schnyder up. According to Falcon, on the way back home, defendant plotted a course of action, and they decided to report the Lexus stolen.

At approximately 6:30 a.m., Suhor reported the Lexus stolen. The vehicle had been towed to the detective bureau and Detective Joseph Dewhirst contacted Su-hor to identify the vehicle. Suhor positively identified the vehicle as' her own and gave consent for the officers to search it. During the course of the search, the trunk was opened which revealed a license plate registered to Suhor and the Lexus. Additionally, a prescription pill bottle in defendant’s name was recovered from the vehicle. Detective Dewhirst testified that once Suhor saw the stolen property in her vehicle, “she knew in her heart that it was Joey Austin that did the burglaries.” At trial, when Suhor was shown several photographs of the interior of her vehicle, she stated that the items depicted in the photographs were not in her vehicle when defendant dropped her off at work on July 24,2009.

On January 8, 2010, Detective Jody Fah-rig interviewed defendant. After he was advised of his rights, defendant waived his rights and gave a statement. He denied burglarizing any vehicles on July 24-25, 2009.

On July 8, 2011, Detectives Pitchford, Fahrig, and Dewhirst conducted an interview with Damien Schnyder. Schnyder told the detectives that he received a phone call from Suhor around 1:00 or 2:00 a.m. on July 25, 2009, telling him that her car was stolen and that she needed him to pick her up from work because she did not have a ride. Schnyder said he picked her up and they left around 2:00 or 2:30 a.m. At trial, Detective Pitchford testified that he thought this statement was inaccurate, because the investigation revealed that Su-hor did not know anything about her car until well after 2:30 a.m., when the car had been received by the sheriffs office. Furthermore, Suhor’s cell phone records introduced into evidence |6do not show that Schnyder received a call from Suhor around 1:00 or 2:00 a.m. Suhor did not report her Lexus stolen until 6:30 a.m.

LAW AND DISCUSSION

In his first assignment of error, defendant argues that the evidence was insufficient to prove the elements of the crimes charged beyond a reasonable doubt. He claims that because the evidence did not support the verdict, the trial court erred in denying his post-verdict judgment of acquittal.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Michel, 09-953, p. 4 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

In the present case, defendant was convicted of four counts of simple burglary. Simple burglary is defined in pertinent part as “the unauthorized entering of any ... vehicle ... with the intent to commit a felony or any theft therein.” LSA-R.S. 14:62. Specific intent is required for a conviction for simple burglary, |7and it may be inferred from the circumstances and actions of the accused. State v. Naquin, 10-474, p. 9 (La.App. 5 Cir. 2/15/11), 61 So.3d 67, 71. Specific criminal intent is defined as “ ‘that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’ ” Id.

Therefore, to convict the defendant, the State was required to prove beyond a reasonable doubt that defendant entered the vehicles without authorization and had the specific intent to commit a felony or theft therein. Naquin, 10-474 at 10, 61 So.3d at 72. In addition to proving these statutory elements, the State is required to prove defendant’s identity as the perpetrator. Id. In a burglary prosecution, the evidence need not be direct; it suffices if there is some evidence that the circumstances lead logically to the conclusion that the accused entered the structure. State v. Johnson, 310 So.2d 600, 603 (La.1975). See also State v. Thompson, 46,473 (La. App. 2 Cir. 9/21/11), 72 So.3d 978, writ denied, 11-2159 (La.3/23/12), 85 So.3d 88.

In the instant case, the four victims testified that items went missing from their respective vehicles oh July 24-25, 2009, and that they did not authorize defendant or anyone else to enter their vehicles. The missing items were then discovered in the vehicle to which defendant had access and was driving on the evening of July 24, 2009. In addition, Errol Falcon, Jr., who was with defendant before and after the burglaries, testified that defendant admitted to him that he had committed several vehicle burglaries. Although defendant denied any involvement in the burglaries and Damien Schnyder gave a different version of events, the jury was presented with all of the evidence and apparently rejected their testimony.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. Naquin, 10-474 at 13, 61 So.3d at 73. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness.' Id. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

Considering the entire record before us and viewing the evidence in the light most favorable to the State, we find that the evidence presented was sufficient to convince a rational trier of fact that defendant was guilty of the crimes charged beyond a reasonable doubt.

Defendant also argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. In this motion, defendant argued that the evidence did not reasonably permit a finding of guilt, because: 1) the State did not exclude the reasonable hypothesis of innocence that a spare key in Suhor’s vehicle was used by someone other than defendant to commit these burglaries; and 2) the only direct evidence connecting defendant to the vehicle burglaries was the uncorroborated self-serving testimony of a convicted felon, Errol Falcon, Jr.

At trial, defense counsel argued that someone other than defendant could have stolen the vehicle and used it to commit the burglaries and that Falcon’s testimony was unreliable and uncorroborated. The jury, in the exercise of its discretion as trier of fact, apparently rejected these theories. Considering our finding that the evidence was sufficient to prove the elements of the crimes charged beyond a reasonable doubt, we further find that the trial judge did not abuse his discretion in denying defendant’s post-verdict judgment of acquittal.

In his second assignment of error, defendant argues that the trial court erred in denying his motion to quash on the grounds of double jeopardy.'

IflTrial of this matter originally commenced on July 11, 2011. During the original trial, the State called Errol Falcon, Jr. as a witness. Falcon, who had been charged with the same simple burglary charges as defendant, testified that he had pled guilty to nine counts of possession of stolen property, had not yet been sentenced thereon, and that the State promised to dismiss the burglary charges against him if he testified against defendant. Indeed, the State indicated that the burglary charges against Falcon had been dismissed. Falcon’s testimony continued until Falcon’s attorney objected, via correspondence, to his client being called as a witness and testifying without presence of counsel. Falcon’s counsel arrived in the courtroom soon thereafter and advised his client not to testify any further. Falcon informed the court that he would not testify any further. As a result, defense counsel filed a motion for mistrial. Pursuant to LSA-C.Cr.P. art. 775(5), defense counsel alleged that it was impossible to proceed with the trial in conformity with law since Falcon had offered testimony during direct examination, but could then not be cross-examined. On this basis, the court granted the mistrial.

In anticipation of trial commencing anew, defense counsel moved to quash the indictment alleging a double jeopardy violation since defendant had already been tried by a jury on these charges. The trial court denied the motion to quash. Defendant objected and now seeks review of this denial on appeal.

Normally, when a defendant’s motion for a mistrial is granted, double jeopardy does not bar a second prosecution. State v. Amato, 96-0606, p. 13 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, 984, writs denied, 97-2626 (La.2/20/98), 709 So.2d 772 and 97-2644 (La.2/20/98), 709 So.2d 772. However, re-prosecution is barred by double jeopardy when the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Id.

LSA-C.Cr.P. art. 591 provides:

|inNo person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.

In the instant case, defendant filed a motion to quash, arguing that the State knowingly and deliberately called Falcon as a witness without the knowledge or consent of his counsel. This, defendant argued, forced him to move for a mistrial. Because he was provoked into moving for a mistrial, defendant argued that his second prosecution should have been barred by double jeopardy.

A review of the record belies defendant’s assertion that the State intentionally acted to provoke his motion for mistrial. The State consistently maintained that Falcon had been informed that any testimony offered in regard to the burglary charges would not be used against him and that any testimony offered in regard to the possession of stolen property charges would not be used against him should he withdraw his guilty plea and proceed to trial. The State also maintained that the burglary charges against Falcon had been dismissed. This makes clear that the State called Falcon to the stand under the assumption that he had been granted immunity. As such, the State did not act in bad faith as defendant contends. Even if the State was negligent in calling a counseled witness without contacting or informing counsel, mere negligence is not the type of prosecutorial misconduct sufficient to bar a second prosecution. See Amato, 96-0606 at 16, 698 So.2d at 985.

Thus, pursuant to LSA-C.Cr.P. art. 591, since a mistrial was legally ordered under the provisions of LSA-C.Cr.P. art. 775, double jeopardy does not bar a second prosecution. As a result, the trial court did not abuse its discretion in denying defendant’s motion to quash.

[ nIn his third assignment of error, defendant argues that his sentences are unconstitutionally excessive due to their consecutive nature.

This Court has held that the failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hunter, 10-552, pp. 4-5 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272; LSA-C.Cr.P. art. 881.1(E). This Court has also held that when the consecutive nature of sentences is not specifically raised in the trial court, then the issue is not included in the review for constitutional excessiveness, and the defendant is precluded from raising the issue on appeal. State v. Escobar-Rivera, 11-496, p. 13 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411.

In this case, the record reflects that defendant’s motion to reconsider sentence challenged his sentence on the grounds of excessiveness. He did not specifically object to the consecutive nature of his sentences. Accordingly, defendant is not entitled to review of the consecutive nature of his sentences on appeal. However, we will review his sentences for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing lipcourt may not set a sentence aside absent a manifest abuse of discretion. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. Id. at 15-16, 975 So.2d at 656.

Defendant’s sentences are within the statutory limits. LSA-R.S. 14:62(B) provides: “Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.” LSA-R.S. 15:529.1(A)(1) provides:

If the second felony is.such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Accordingly, since the offense of simple burglary was punishable by imprisonment for a term less than natural life, LSA-R.S. 15:529.1(A)(1) dictates a sentencing range of six years to twenty-four years for a second felony offender. Defendant was sentenced to six years on each of the four counts.

The record reflects that the trial judge who presided over defendant’s trial was the same judge who presided over defendant’s adjudication and sentencing as a multiple offender. Accordingly, the trial judge was aware that defendant went on |1Ha crime spree in the span of several hours, burglarizing four separate vehicles. The record also reflects that defendant had been previously convicted of simple burglary of an inhabited dwelling, in violation of LSA-R.S. 14:62.2, and possession of marijuana with intent to distribute, in violation of LSA-R.S. 40:966(A).

Furthermore, reviewing similar cases, defendant’s sentence is supported by comparison. In State v. Ewens, 98-1096, p. 2 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 91, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179, the defendant was convicted of simple burglary of a motor vehicle in violation of LSA-R.S. 14:62, was adjudicated a second felony offender, and was sentenced as such to six years at hard labor. He challenged his sentence as excessive on appeal, which this Court rejected, noting as follows:

As a second felony offender with an underlying conviction of simple burglary, defendant’s sentencing range was six to twenty-four years. Thus, defendant’s six year sentence is half of the twelve year sentence he could have received upon a first conviction of simple burglary and, by law, is the minimum sentence he could receive as a second felony offender.
* * *
[W]e find that not only was defendant’s six year sentence as a double felony offender well within the discretion of the trial court, it was the statutory minimum, and it is not constitutionally excessive.

Id., 98-1096 at 11-12, 735 So.2d at 96 (Emphasis in original).

In the instant case, defendant was convicted of four counts of simple burglary, and he was sentenced, as a second felony offender pursuant to LSA-R.S. 15:529.1, to six years at hard labor on each count. Considering the record before us along with the applicable jurisprudence, we find that defendant’s sentences are | Mnot constitutionally excessive. Accordingly, the trial court did not abuse its discretion in imposing defendant’s sentences.

In addition to appellate counsel’s assignments of error, defendant filed a pro se brief setting forth two additional assignments of error. In his first pro se assignment of error, defendant argues that his Sixth Amendment right to confrontation was violated when the trial court permitted Cherie Suhor’s cell phone records to be introduced at trial without having been properly authenticated.

Because authentication of evidence is a condition precedent to admissibility, an exhibit that is not authenticated does not constitute competent evidence. State v. Placide, 11-1061, (LaApp. 5 Cir. 6/28/12), 109 So.3d 394, 2012 WL 2476396. Evidence must either be authenticated, as provided in LSA-C.E. art. 901, or self-authenticating, as provided in LSA-C.E. art. 902. Id. LSA-C.E. art. 901(B)(1) provides that evidence can be authenticated by the testimony of a witness with knowledge that a matter is what it is claimed to be. Additionally, LSA-C.E. art. 901(B)(6)(a) provides that telephone conversations, by evidence that a call was made to the number assigned by the telephone company to a particular person or business, may be authenticated or identified in compliance with LSA-C.E. art. 901, if circumstances, including self-identification, show the person answering to be the one called.

In the instant case, when presented with the phone records at issue, Suhor identified the exhibit as her own cell phone records and identified calls exchanged between herself, Schnyder, and defendant. Considering that Suhor is a witness with knowledge of her own cell phone records, the trial court did not abuse its discretion in concluding that the evidence referred to by Suhor was in fact what it was purported to be — the cellular telephone records pertaining to the account of Cherie Suhor.

^Defendant also argues that the phone records constituted out-of-court testimonial statements, the introduction of which violated his right to confrontation. Specifically, he contends that because the State presented no one from the phone company to authenticate the records, he was unable to conduct a cross-examination regarding the records’ authenticity, thereby violating his confrontation right.

First, a phone company representative is not required to authenticate telephone records. Rather, as articulated above, LSA-C.E. art. 901(B)(1) permits authentication by a witness with knowledge and LSA-C.E. art. 901(B)(6)(a) permits authentication via self-identification by the person receiving calls. As such, defendant was able to and in fact did cross-examine the authenticator of the records, Suhor.

Second, the Louisiana Supreme Court has held that telephone records do not constitute hearsay since they are “generated solely by the electrical and mechanical operations of the computer and telephone equipment, and [are] not dependent upon the observations and reporting of a human declarant.” See State v. Armstead, 432 So.2d 837, 839^41 (La.1983); and State v. Carter, 97-2902, pp. 25-30 (LaApp. 4 Cir. 5/10/00), 762 So.2d 662, 678-81, 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). In addition, the U.S. Supreme Court has held that the Confrontation Clause applies only to testimonial hearsay. See Davis v. Washington, 547 U.S. 813, 823-824, 126 S.Ct. 2266, 2274-75,165 L.Ed.2d 224 (2006).

Consequently, since the records were properly authenticated by a person who was subject to cross-examination and because they do not constitute hearsay, defendant’s confrontation right was not violated. Accordingly, the trial court did not abuse its discretion in admitting these records into evidence.

[1fiIn his second pro se assignment of error, defendant argues that the trial court erred in denying his motion to suppress his statement. He contends that he asserted his right to counsel, which was not honored, and that his statement was therefore obtained in violation of that right.

On July 20, 2011, a motion to suppress hearing was held. At this hearing, Detective Fahrig testified that he and Detective Pitchford conducted an interview of defendant on January 8, 2010, during which defendant gave a statement. Prior to giving his statement, Detective Fahrig advised defendant of his Miranda rights with an advice of rights form. Defendant indicated he understood his rights, and waived them, initialing and signing the form.

During the hearing, defendant argued that he invoked his right to counsel during his statement when he said: “If that’s what /all gonna arrest me for? F* * *, take me to jail and let me f* * *ing have ... call a lawyer and sh* * because this is bullsh* *.” Defendant argued that because he invoked his right to counsel and his statement was obtained in violation of that right, it should be suppressed. The trial judge denied the motion, ruling: “I do not find that there was some unequivocal invocation of [defendant’s] sixth amendment right to counsel.” Defendant objected to the ruling and now seeks review of that denial on appeal.

Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Smith, 11-638, p. 9 (La. App. 5 Cir. 3/13/12), 90 So.3d 1114, 1120. Thus, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. Id. Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and 117that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises. LSA-C.Cr.P. art. 703(D); State v. Allen, 06-778, p. 4 (La. App. 5 Cir. 4/24/07), 955 So.2d 742, 747, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754.

During the suppression hearing in the instant case, Detective Fahrig stated he advised defendant of his Miranda rights with an advice of rights form. Detective Fahrig testified that defendant acknowl-edgéd and understood his rights, that he was not coerced into giving a statement, and that he gave it voluntarily. Additionally, at the beginning of his statement, defendant affirmed he had been read the advice of rights form and had signed it, and that he had been made aware of his rights and was willing to give a statement. Indeed, the advice of rights form reflects that defendant initialed and signed it, indicating that he understood his rights, that he was willing to answer questions without a lawyer, and that no threats or promises had been made to him to induce him to answer questions or give up his rights.

In consideration of these facts, we find that the State established that defendant was advised of his Miranda rights, that he voluntarily and intelligently waived them, and that his statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises.

After a knowing and voluntary waiver of Miranda rights, law enforcement officers may continue questioning a suspect unless or until he clearly requests an attorney. Allen, 06-778 at 5, 955 So.2d at 748. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. In order to invoke his right to counsel, the suspect must articulate his desire to have counsel present with sufficient clarity to enable a reasonable police officer, in the circumstances, to |1Runderstand his statement to be a request for an attorney. Allen, 06-778 at 5, 955 So.2d at 748. In analyzing whether there has been a direct, clear, unequivocal, and unambiguous request for counsel, courts must give a broad, rather than narrow, interpretation to the suspect’s request. Id. at 6, 955 So.2d at 748.

In Allen, this Court found that the defendant’s statements that he thought he might want to speak to an attorney were ambiguous such that the officer’s cessation of questioning was not required. Allen, 06-778 at 9, 955 So.2d at 750. Similarly, in Davis v. U.S., 512 U.S. 452, 462, 114 S.Ct. 2850, 2357, 129 L.Ed.2d 362 (1994), the U.S. Supreme Court found that the defendant’s remark that “[m]aybe I should talk to a lawyer” was not an unambiguous or unequivocal request for counsel that required the officers to stop their questioning. Id.

In the instant case, the claimed invocation was: “If that’s what y’all gonna arrest me for? F* * *, take me to jail and let me f* ⅝ *ing have ... call a lawyer and sh* * because this is bullsh* Since defendant prefaced his statement with the conjunction “if,” indicating a hypothetical situation, this was not an unambiguous or unequivocal request for counsel. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion to suppress his statement.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals one error requiring corrective action.

The trial court failed to inform defendant of the prescriptive period for seeking post-conviction relief. Although the minute entry indicates that defendant was informed of this period, the transcript indicates otherwise. When there is a conflict between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

11flThis Court has previously corrected the failure to advise a defendant of the prescriptive period for filing for post-conviction relief by providing such notice to the defendant in its opinion, rather than remanding the matter to the trial court. See State v. Ramsey, 10-333, p. 10 (La. App. 5 Cir. 1/25/11), 60 So.3d 36, 42; State v. Davenport, 08-463, p. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 10 So.3d 473. Accordingly, we hereby advise defendant that no application for post-conviction relief, including applications which seek 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 LSA-C.Cr.P. arts. 914 or 922. See LSA-C.Cr.P. art. 930.8.

DECREE

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

AFFIRMED

      . Trial had originally commenced on July 11, 2011, but it terminated on July 12, 2011, when the trial judge granted defendant's motion for mistrial.

      . The trial judge did not sentence defendant on his underlying convictions. Rather, he sentenced defendant as a second felony offender to six years on each count. LSA-R.S. 15:529.1(D)(3) provides that the "court shall sentence [defendant] to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed ...” 0emphasis added). Thus, LSA-R.S. 15:529.1 does not mandate that a sentence be imposed on an underlying conviction before the sentence on a multiple bill is imposed. See State v. Turner, 09-1079, p. 9 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 460, n. 8; and State v. Sanders, 97-892, p. 3 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 236, n. 2, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.
      Further, in State v. Shaw, 06-2467, p. 20 (La. 11/27/07), 969 So.2d 1233, 1245, the Louisiana Supreme Court held that LSA-R.S. 15:529.1 does not prohibit enhancing multiple sentences for multiple convictions obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode.

      . This Court has found that if the trial judge who imposed sentence on a defendant's underlying conviction is the same judge who imposes the enhanced sentence in a multiple offender adjudication, that judge is deemed to be aware of the nature of the crime for the underlying conviction. State v. Woods, 09-399, pp. 28-29 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 412 writ denied, 10-0784 (La.10/29/10), 48 So.3d 1096.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gregory FORD, Jr.
    No. 12-KA-717.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.
    Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Douglas W. Freese, Myles Ranier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

^Defendant, Gregory Ford, Jr., appeals his convictions and sentences for manslaughter and obstruction of justice. For the reasons that follow, we affirm his convictions and sentences, and we grant appellate counsel’s motion to withdraw.

PROCEDURAL HISTORY In June of 2011, a Jefferson Parish Grand Jury returned an indictment charging defendant with being a principal to second degree murder, in violation of LSA-R.S. 14:24 and 14:30.1, and with obstruction of justice, in violation of LSA-R.S. 14:130.1. On November 28, 2011, the trial court heard and denied defendant’s motions to suppress evidence, identification, and statement. Thereafter, on March 20, 2012, after being advised of his rights, defendant pled guilty to the amended charge of manslaughter and to obstruction of justice. In accordance with the plea agreement, the trial judge sentenced defendant to imprisonment at hard labor for forty years on each count to run concurrently. On | sMay 17, 2012, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial judge granted.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his 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.” 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).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or 14objection 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.” State v. Jyles, supra.

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 the legal point identified by the court, or grant the motion and appoint substitute appellate. counsel. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108,1110.

In this case, defendant’s appellate counsel asserts that after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that there is no ruling of the trial court to be challenged, that this was not a plea under State v. Crosby, and that the charges were amended pursuant to a plea agreement. She further states in her appellate brief that she considered whether to raise the issue of excessiveness of the sentence, but concluded that such a claim would be frivolous because defendant was sentenced in accordance with the plea agreement.

| ¡Along with her brief, appellate counsel has filed a motion to withdraw as attorney of record which states she has made a conscientious and thorough review of the trial court record and could find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal. She further stated that she notified defendant of the filing of the motion to withdraw and that she advised defendant of his right to file a pro se brief in this appeal. Additionally, on October 3, 2012, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 1, 2012, to file a pro se supplemental brief. On October 8, 2012, defendant filed a motion to file a pro se supplemental brief. This Court granted defendant’s motion on October 15, 2012, and gave him until November 11, 2012, to file a pro se supplemental brief. On February 6, 2013, this Court granted defendant’s motion for leave to file an out-of-time supplemental brief and gave him until February 21, 2013, to file his pro se brief. As of the rendering of this opinion, defendant has not filed a pro se supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See generally LSA-C.Cr.P. arts. 464-66. Also, as reflected by the minute entries and commitment, defendant appeared at his guilty plea proceeding and sentencing.

Further, defendant pled guilty. If 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. State v. Wingerter, 05-697 (La.App. 5 Cir, 3/14/06), 926 So.2d 662, 664. |nIn the instant case, defendant filed motions to suppress evidence, identification, and statement that were denied after a hearing. However, defendant did not preserve these rulings for review under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Additionally, our review of the record reveals no irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn 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. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120,1124.

The record shows that defendant was aware he was pleading guilty to one count of manslaughter and one count of obstruction of justice. Further, on the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. 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 his guilty plea proceeding, defendant stated that he had not been forced, coerced, or threatened into entering his guilty pleas. 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 his guilty pleas could be used to enhance penalties for any future convictions. Defendant was also informed during the colloquy and by means of the waiver of rights form |7of the sentencing ranges he faced for each count and of the actual sentences that would be imposed if his guilty pleas were accepted. After his colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

With regard to defendant’s sentences, it is noted that they were imposed in accordance with the terms of the plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Further, defendant’s sentences fall within the sentencing ranges prescribed by the statutes.

Based on the foregoing, we find that defendant’s guilty pleas and the sentences imposed pursuant to the plea agreement do not present any 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

We have also reviewed the record for errors patent, in accordance with LSA-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). Our review of the record does not reflect that defendant was arraigned in the case. While the transcript of the March 20, 2012 guilty plea proceeding and the commitment dated March 20, 2012, show that defendant withdrew his prior pleas of not guilty before pleading guilty, there are no | ^minute entries in the record to show that defendant actually entered not guilty pleas prior to that date.

LSA-C.Cr.P. art. 555 provides:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

In the instant case, defendant waived this error when he entered guilty pleas without objecting to the district court’s failure to arraign. In such an instance, a defendant is considered to have pled not guilty; hence, no corrective action is needed. See State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, 241.

For the foregoing reasons, defendant’s convictions and sentences are affirmed. The motion to withdraw as counsel for defendant is hereby granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

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

      . State v. Crosby, 338 So.2d 584 (La. 1976).

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


author: ROBERTA. CHAISSON, Judge.

text:
    Fred Owen MARTIN, Sr. v. Rosemary Stewart MARTIN.
    No. 12-CA-549.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Catherine J. Soutullo, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.
    Rudy W. Gorrell, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

| ¡.This is an appeal by Rosemary Stewart Martin, defendant, from a judgment on a motion to enforce a community property settlement negotiated before a commissioner and signed by the parties in this domestic dispute. The trial judge ruled that the agreement was valid and ordered Ms. Martin to comply with its terms. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

The parties were divorced in 2009, and began protracted negotiations to resolve their community property issues. On August 24, 2011, after a lengthy hearing before a domestic commissioner, at which both parties were represented by counsel, a community property settlement document was produced. The commissioner’s report states that the “[pjarties agree to settle the community property as outlined on the attached two (2) page typed document.” The report is signed by the commissioner, both parties, and their respective attorneys.

Mr. Martin’s counsel undertook to prepare a judgment in accord with the agreement for presentation to the court. However, when that document was sent to Ms. Martin’s counsel, she declined to review it because she had been discharged |sby Ms. Martin on August 29, 2011. Also on August 29, 2011, a document styled Objections to Hearing Officer’s Recommendation(s) and Interim Order was filed with the clerk’s office, ostensibly on behalf of Ms. Martin. That document is unsigned by Ms. Martin, and is not signed by any other attorney or person.

Meanwhile, counsel for Mr. Martin submitted to the court a judgment containing the terms of the settlement of August 24, 2011, with a La. District Court Rule 9.5 Certification explaining why the judgment had not been signed by Ms. Martin’s prior counsel. That judgment was signed by the trial judge on September 8, 2011, and notice of the judgment was mailed to Ms. Martin on September 12, 2011.

On September 13, 2011, Ms. Martin again filed her objections to the hearing officer’s recommendations, this time by way of a copy signed by her. The trial judged marked the attached order “Moot, per consent judgment of September 8, 2011.”

On October 4, 2011, Ms. Martin, now represented by new counsel, filed a motion to vacate the judgment of September 8, 2011, on grounds that it had been signed without consideration of her objections to the commissioner’s report of August 24, 2011. That matter was set for hearing on December 2, 2011. It further appears that prior to that hearing, Mr. Martin urged a motion to enforce the judgment of September 8, 2011, alleging that Ms. Martin had failed to comply with various paperwork requirements and other matters specified in that judgment. All of the above matters were taken up at the December 2, 2011 hearing, and a judgment was signed on December 12, 2011. In that judgment, the court ruled that the agreement signed by the parties on August 24, 2011, was a valid compromise. He further ruled that the judgment based on that agreement and submitted in. proper form as the consent judgment, which he signed on September 8, 2011, was a final | Judgment. He also ordered Ms. Martin to permit an appraisal of one of the properties at issue as required by the September 8, 2011 judgment. Ms. Martin filed a motion for a new trial, which was denied, and this appeal followed.

Ms. Martin urges three assignments of error. She first contends that it was error for the trial court not to hold a hearing on her original objections to the commissioner’s report, which were filed on August 29, 2011. Second, she argues that the trial judge’s findings that there was a valid agreement as to the community property confected on August 24, 2011, and confirmed by the judgment of September 8, 2011, were manifestly erroneous. Third, she asserts that it was error for the trial judge to deny the motion for a new trial.

LAW AND ANALYSIS

We first note that a denial of a motion for a new trial will be overturned only when a trial judge has abused his discretion in ruling on such motions. Warner v. Carimi Law Firm, 98-613 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, writ denied, 99-0466 (La.4/1/99), 742 So.2d 560. Here, the grounds urged in the motion for new trial were basically the same as those urged at the hearing of December 2, 2011, which the trial judge rejected. The trial judge denied the motion for new trial with the notation “[d]enied for reasons orally assigned on December 2, 2011.” It is evident that the trial judge deemed the matters raised in the motion to be the same as those addressed at the hearing and saw no need to re-litigate these issues by way of a new trial. Because we find no abuse of the trial court’s discretion in this circumstance, we reject this assignment.

We also reject Ms. Martin’s assertion that it was error not to hold a hearing on her objections to the commissioner’s report, which she filed on August 29, 2011. As noted by Mr. Martin, that filing was not signed by Ms. Martin, and it was not filed by an attorney. Although there are representations by Mr. Martin’s |scounsel that the objections were prepared and filed by Ms. Martin’s daughter, there is nothing in the record to indicate who filed that document, as it is unsigned by anyone. Moreover, these same objections were again filed on September 13, 2011, and these matters were taken up in conjunction with Mr. Martin’s motion to enforce the judgment at the hearing of December 2, 2011. The transcript of the December 2, 2011 hearing shows that Ms. Martin was given the opportunity to challenge the consent agreement of August 24, 2011, and the trial judge considered her objections filed on August 29, 2011, and refiled on September 13, 2011. Her argument that the trial court erred by not holding a hearing on her objections .is therefore moot.

Ms. Martin’s last argument is that it was manifest error to find that the agreement of August 24, 2011, memorialized in the September 8, 2011, judgment, was a valid settlement of the community property dispute. In Rosell v. ESCO, 549 So.2d 840 (La.1989), the court explained that factual findings are not to be overturned unless, considering the record as a whole, no rational trier of fact could have made such findings. It further noted that the test is not whether the reviewing court would have made similar findings had it been sitting as the trier of fact, but rather whether there is a reasonable basis for the findings made.

Here, the evidence bearing on the validity of the compromise agreement was that there was a typed, two page document attached to the commissioner’s report. The report states that the attached two page document is the agreement between the parties as to settling the community property dispute. The report is dated August 24, 2011, and signed by both parties and both of their attorneys, as well as by the commissioner. Mr. Martin’s attorney, who was present during the several hours of negotiations, stated that she saw Ms. Martin sign the document. Ms. Martin testified that she did sign the document. She further stated, however, that | fishe was coerced into signing it, and that she either did not understand what she was signing, or did not agree with the terms of the settlement.

Other evidence presented at the hearing showed that the parties owned three buildings. One was a house in Donaldsonville, valued at $68,000, the second was a house in Marrero, valued at $230,000, and the third was a four-plex, also in Marrero, valued at $250,000. The agreement provided that Ms. Martin would receive the four-plex, plus $24,000 in cash, and Mr. Martin would receive the two houses. Thus, each party would receive the value of $274,000. There were also provisions in the agreement concerning two vehicles and furniture, but the division of these goods is not contested. Ms. Martin also alleged that she should have received certain pension benefits, but there was no evidence to establish the amount of those benefits, or from where they had originated.

On the above evidence, the trial judge concluded that the division of the assets was fair to both parties, and that the agreement confected on August 24, 2011, was a binding compromise by the parties. In our opinion, those findings are reasonable on the record before us. Although Ms. Martin testified that she did not in fact agree to the terms set forth, there was ample countervailing evidence to support the conclusion that she did agree to them at the August 24, 2011 meeting. That being the case, we are precluded from setting those findings aside. CONCLUSION

For the foregoing reasons, the judgment of the district court based on the terms of the settlement agreement is hereby affirmed.

AFFIRMED