author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Alton HOLLOWAY.
    No. 2012-KA-0926.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Robert W. Hjortsberg, Jason Rogers Williams & Associates, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

|,The defendant appeals his multiple bill adjudication as a second felony offender under the habitual offender statute, La. R.S. 15:529.1. The defendant assigns as his sole assignment of error that his adjudication under the habitual offender statute is in violation of the double jeopardy clause. We find no error in the trial court’s enhancement of defendant’s sentence pursuant to La. R.S. 15:529.1. The trial court’s sentence of the defendant as a habitual offender under La. R.S. 15:529.1 is affirmed.

STATEMENT OF CASE

On May 28, 2009, the defendant, Alton Holloway, was charged by bill of information with possession of marijuana, third offense, in violation of La. R.S.40:966(E)(3) and aggravated flight from an officer in violation of La. R.S. 14:108.1(C). A jury found the defendant guilty of third offense possession of marijuana and not guilty of aggravated flight from an officer.

The defendant was subsequently sentenced to five years at hard labor to run concurrently with any other sentence. The trial court ordered that the defendant receive credit for time served. On the same date, the state filed a multiple offender bill of information charging the defendant as a second felony offender. The multiple offender bill of information alleged that in addition to his 2010 conviction 12for third offense possession of marijuana, the defendant previously pled guilty to possession of cocaine on September 14, 2006 in Jefferson Parish, Case No. 04-06447.

Following a multiple bill hearing, on June 2, 2011, the defendant was adjudicated a second felony offender pursuant to La. R.S. 15:529.1. The trial court then vacated its previous sentence and sentenced the defendant to ten years at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served, to run concurrently with any sentences including parole.

STATEMENT OF FACT

The facts of the underlying crime are not relevant to the assignment of error presently before the Court and therefore will not be discussed.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR

As his sole assignment of error, the defendant contends that the trial court erred in sentencing him “as a multiple offender by using a crime that had already been enhanced because it constitutes double jeopardy.” Specifically, the defendant argues that the trial court erred by allowing the state to use his previous conviction for possession of marijuana to support his conviction for third offense marijuana possession and to support the multiple offender bill filed against him.

\?LAW AND ANALYSIS

Both the Fifth Amendment to the United States Constitution and Art. 1, Section 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense and to protect an accused against multiple punishment for the same conduct. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Vaughn, 431 So.2d 763, 767 (La.1983); State v. Warner, 94-2649, p. 4 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, 59.

It is well-settled that double jeopardy does not apply to multiple offender proceedings. State v. Langendorfer, 389 So.2d 1271, 1277 (La.1980); see also, State v. Picot, 98-2194, p. 1 (La.App. 4 Cir. 11/10/98), 724 So.2d 236, 237; State v. Davis, 2002-0565, p. 16 (La.App. 4 Cir. 12/11/02), 834 So.2d 1170, 1180. The Habitual Offender Statute, La. R.S. 15:529.1, does not create a new or separate offense based on the commission of more than one felony but merely provides for imposition of an increased sentence for persons convicted of second and subsequent felonies. State v. Hayes, 412 So.2d 1323, 1325-1326 (La.1982); State v. Boatner, 304 So.2d 661, 662 (La.1974); Picot, 98-2194, p. 1, 724 So.2d at 238; see also, State v. Dorthey, 623 So.2d 1276, 1279 (La.1993) (providing that Louisiana’s Habitual Offender statute is simply an enhancement of punishment provision; it does not punish status and does not on its face impose cruel and unusual punishment).

Nevertheless, the defendant argues that principles of double jeopardy apply because he faced sentencing enhancement twice when the state used the same marijuana conviction to enhance his sentence for third offense possession of |4marijuana and to enhance his sentence as a habitual offender under La. R.S. 15:529.1. To support this contention, the defendant relies on two Louisiana Supreme Court decisions, State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978), which have since been overruled. See, State v. Baker, 2006-2175 (La.10/16/07), 970 So.2d 948.

In Sanders, the Louisiana Supreme Court held that the state could not use the same prior felony conviction it used to charge the defendant with a firearms offense (possession of a firearm or the carrying of a concealed weapon by a convicted felon in violation of La. R.S. 14:95.1) to serve as the basis for the habitual offender proceedings under La. R.S. 15:529.1. The Sanders Court reasoned that because La. R.S. 14:95.1 already provided for enhanced penalties for concealing a weapon when the offender is a felon, the legislature did not intend further enhancement of sentence under La. R.S. 15:529.1. The Supreme Court stated:

[ W]e find that the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.

337 So.2d at 1135.

In Firmin, 354 So.2d at 1355, the Louisiana Supreme Court extended Sanders to cases in which the state relied on one prior felony conviction in charging a violation of La. R.S. 14:95.1 and on a different felony conviction to reach the habitual offender status under La. R.S. 15:529.1. As applied in Firmin, the rule of Sanders “prevents double use of a defendant’s recidivist offender status, |snot simply the double use of any particular prior felony conviction.” Baker, 2006-2175, p. 6, 970 So.2d at 951. However, as noted above, the Louisiana Supreme Court has subsequently reversed Firmin outright and confined Sanders to its specific facts.

In Baker, the Louisiana Supreme Court again addressed this issue of double enhancement. The defendant in Baker, as in Firmin, had been previously convicted of two different felonies and charged with possession of a firearm by a felon under La. R.S. 14:95.1. At trial, the state used the defendant’s conviction for aggravated battery to prove the elements of the firearm offense. The state later used the defendant’s conviction for illegal possession of stolen things in a habitual offender bill of information under La. R.S. 15:529.1, seeking to have the defendant’s conviction for possession of a firearm by a felon enhanced. The trial court adjudicated the defendant a second offender.

On appeal, the defendant in Baker argued that his adjudication as a multiple offender was improper under Sanders and Firmin as an impermissible double enhancement of his firearms conviction. The state countered that no double enhancement occurred because it did not rely on the same prior conviction to support both the firearm violation and habitual offender charge. The Baker Court agreed with the state and affirmed defendant’s adjudication/sentence as a habitual offender. The Baker Court held that a sentence imposed for a felon in possession of a firearm may also be enhanced under the habitual offender law provided that the offense used as an element in the possession of a firearm offense was not subsequently used to enhance the penalty under the habitual offender statute as well. The Louisiana Supreme Court stated in pertinent part:

|fiWe hold today that our determination in both Sanders and Firmin, that a sentence imposed under La. R.S. 14:95.1 may not be further enhanced under the habitual offender statute, was in error, and these cases are overruled to the extent that they stand for this proposition. However, we note that the other holding in Sanders, that the state may not seek multiple enhancement of a defendant’s sentence on the basis of the same set of prior convictions, was recently cited with approval by this court in State v. Ruiz, 2006-1755 p. 12-13 (La.4/11/07), 955 So.2d 81, 89. Since in this case the state used a different prior felony conviction as the element in charging a violation of La. R.S. 14:95.1 from the prior felony conviction used in the multiple offender bill of information to enhance the firearms sentence, we are not required to re-evaluate that portion of the holding in Sanders.
We find that a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. To the extent that cases state to the contrary, including State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978), they are overruled. [Emphasis added].

Id. at pp. 10-13, 16-17, 970 So.2d at 953-955, 958.

Here, contrary to the defendant’s allegations, the state did not use the same conviction to support his third offender marijuana possession and the multiple offender bill. Although the state used his two prior convictions for marijuana possession to establish that the defendant’s third offense of marijuana possession, the state used the defendant’s 2006 conviction for possession of cocaine as the predicate offense to enhance his sentence for the third offense marijuana possession. Thus, because the state, like in Baker, used a different underlying |7conviction to enhance his sentence for the instant offense, it was not error for the trial court to adjudicate and sentence the defendant as a habitual offender.

The defendant acknowledges that the holdings in Firmin and Sanders have been rejected by Baker but nevertheless asks this Court to consider their analysis. The defendant also attempts to distinguish Baker because in Baker an additional element (the requirement that the defendant be convicted of certain felonies) was needed to upgrade from misdemeanor possession of a firearm under La. R.S. 14:95 to felony possession under La. R.S. 14:95.1. The defendant’s arguments have no merit. The Louisiana Supreme Court and other Circuit Courts have rejected similar arguments to those made by the defendant and have applied Baker to enhance the sentence for second and third offense marijuana possession pursuant to the habitual offender law. State v. Brooks, 43,613, pp. 2-5 (La.App. 2 Cir. 10/29/08), 997 So.2d 688, 690-692; State v. Lewis, 2012-1835, p. 5 (La.11/30/12), 104 So.3d 407, 410; State v. Foster, 2009-0617, p. 2 (La.11/25/09), 23 So.3d 885, 886; see also, State v. Shoupe, 46,395, pp. 17-18 (La.App. 2 Cir. 6/22/11), 71 So.3d 508, 518 writ denied, 2011-1634 (La.1/13/12), 77 So.3d 950 (recognizing that Baker has been extended to subsequent offenses of marijuana possession and applying it to enhance a defendant’s sentence under the habitual offender statute for his fourth DWI); State v. Bias, 2010-1440, p. 15-19 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, 409-411, writ denied 2011-1063 (La.11/14/11), 75 So.3d 939 (citing Baker and Foster for authority and finding that no double enhancement occurred where the state used the prior convictions of simple robbery only once to support a conviction as a felon in possession of a firearm and only once to enhance the defendant’s sentence for attempted armed robbery in a multiple offender bill).

In Brooks, supra, the defendant was convicted of possession of marijuana, third offense. Subsequent to that conviction, the state charged the defendant as a third felony offender in a multiple bill, based on prior convictions for possession of cocaine in 1995 and simple criminal damage to property in 2001. The defendant filed a motion to quash the multiple offender bill, arguing that the state sought to enhance a crime already enhanced by law. The trial court denied the defendant’s motion, adjudicated the defendant as a third felony offender, and sentenced him to fourteen years at hard labor without benefits.

On appeal, the Second Circuit affirmed. In doing so, the Brooks Court relied on Baker to find that a third offense possession of marijuana could be enhanced pursuant to La. R.S. 15:529.1 “as long as none of the marijuana convictions are used as prior felony convictions in the habitual offender bill of information.” Id. at pp. 4-5, 997 So.2d at 692-693. The Second Circuit also declined to “revisit the holding in Baker” as the defendant suggested and refused to distinguish the Baker case because it involved a conviction under La. R.S. 14:95.1, as opposed to a conviction for third offense possession of marijuana under La. R.S. 40:966(E). Id. at pp. 2-3, 997 So.2d at 690.

The Louisiana Supreme Court in Lewis, 2012-1835, pp. 4-5, 104 So.3d at 409-410, also found that a defendant’s conviction for third offense marijuana possession could be subject to additional enhancement in habitual offender proceedings. In Lewis, after the defendant’s conviction for third offense possession of marijuana, in violation of La. R.S. 40:966(E)(3), the state filed a habitual offender bill charging him as a fourth felony offender on the basis of prior convictions for manslaughter, attempted armed robbery possession of stolen property valued over $500, and attempted possession of cocaine with intent to 13distribute. The defendant moved to quash the multiple bill, claiming that his conviction for third offense marijuana possession, “which converted the base offense from a misdemeanor to a felony with substantially increased penalties,” could be not further enhanced under La. R.S. 15:529.1. The trial court granted the motion to quash on those grounds. The defendant filed writs with the Fourth Circuit, and, in a split panel, this court summarily denied review. See, State v. Lewis, 2012-0560 (La.App. 4 Cir. 7/30/12) (unpub.) (stating “[pjursuant to State v. Davis, 2002-2061 (La.App. 4 Cir. 10/8/03), 859 So.2d 776, the writ is denied”).

The Louisiana Supreme Court granted certiorari, reversed the trial court’s decision to quash the multiple bill, and remanded the case for further proceedings. In reaching this conclusion, the Lewis Court found the dissenting appellate opinion of Judge Lobrano persuasive and found that the trial court’s reliance on Davis, 2002-2061, 859 So.2d 776 was improper. The Court also cited the Second Circuit’s decision in Brooks with approval. The Louisiana Supreme Court stated:

The [Fourth Circuit’s] order [denying the defendant’s writ application] cited to the court of appeal’s prior decision in State v. Davis, [20]02-2061, pp. 9-10, (La.App. 4 Cir. 10/8/03), 859 So.2d 776, 782 (“Because what would be a misdemeanor as a first offense is elevated to the status of a felony in the case of a second offense, a conviction for possession of marijuana, second offense is not subject to being further enhanced under the Habitual Offender Law.”) (citations omitted). Dissenting, Judge Lobrano observed that Davis had been superseded by this Court’s subsequent decision in State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, and as a consequence, “[t]he mere fact that a felony instant offense is a status offense, which has been enhanced, does not preclude the felony status offense being enhanced further under La. R.S. 15:529.1.” Lewis, [20] 12-0560, p. 1 (Lobrano, J., dissenting). Judge Lobrano further observed that “[t]he caveat is only that the same predicate conviction or convictions used to enhance the original offense cannot also be listed in the multiple bill as one of the predicate convictions in |10support of the multiple offender adjudication.” Id. at 1-2. We fully subscribe to the views expressed by Judge Lobrano which appear entirely consistent with the Second Circuit’s decision in State v. Brooks, 43,613, pp. 4-5 (La.App. 2 Cir. 10/29/08), 997 So.2d 688, 692 (“Applying th[e] reasoning [of Baker ] to the instant case, we conclude that a sentence for possession of marijuana, third offense, can be enhanced under the habitual offender law as long as none of the marijuana convictions are used as prior felony convictions in the habitual offender bill of information.”), writ denied, 08-2973 (La.12/18/09), 23 So.3d 930. [Emphasis added].

Id. at p. 2, 104 So.3d at 408. The Lewis Court also considered its previous opinions in Baker, Sanders, and Firmin, as well as the statutory language of La. R.S. 15:529.1 and La. R.S. 40:966(E) prior to reaching its holding:

Although the decision in Baker was guided by “the clear language of the statute, its context and its purpose” with respect to La. R.S. 14:95.1, id., 06-2175 at 10, 970 So.2d at 953, we also observed more broadly that “there is no restriction on the type of felony which may be enhanced by the habitual offender law,” id., 06-2175 at 11, 970 So.2d at 955 (citation omitted), and further noted that “[o]nly by reading into the statute something which is not there, i.e., a specific prohibition as to further enhancement, [could] the result in Sanders be reached.” Id.
The decision in Baker controls the outcome here. Apart from the lack of any clear prohibition of further enhancement of sentence, La. R.S. 40:966(E)(3) expressly provides penalties for a “third or subsequent conviction for violation of Subsection C of this Section with regard to marijuana,” i.e., the knowing and intentional possession of a Schedule I controlled substance. A prior felony conviction for second offense possession of marijuana is not a prerequisite to a prosecution for third offense possession of marijuana, which may rest on two pri- or misdemeanor convictions for first offense marijuana possession. See, e.g., State v. Chinn, 11-893 (La.App. 5 Cir. 4/24/12), 94 So.3d 838; State v. Jones, 11-644 (La.App. 5 Cir 2/28/12), 88 So.3d 1120; cf. La. R.S. 15:529.1(B) (“an offender need not have been adjudged to be a second offender in a previous prosecution in order to be adjudged |nto be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender”). Thus, La. R.S. 40:966(E)(3) punishes repeated violations of Louisiana’s controlled substances law with respect to possession of marijuana -without regard to the status of the defendant as a prior felony offender. On the other hand, La. R.S. 15:529.1 is Louisiana’s general felony recidivist sentencing statute whose purpose is “to discourage commission of successive felonies and to enhance punishment for subsequent felonies.” State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La.1991).
[Emphasis added].

Id. at pp. 3-5, 104 So.3d at 409-410.

Thus under Lewis, because La. R.S. 40:966(E)(3) does not distinguish between the type of offense (misdemeanor versus felony) needed to qualify as third offense marijuana possession and because La. R.S. 15:529.1 does not provide restrictions on the type of felony which may be enhanced by the habitual offender law, neither statute prohibits the defendant from being sentenced as a habitual offender in this case. Additionally, the Louisiana Supreme Court has determined that a status crime may be enhanced under the habitual offender law provided that the same convictions are not used to support both the underlying offense and the habitual offender bill. In the present case, the defendant was not exposed to improper double enhancement, because the state charged the defendant as a second felony offender pursuant to La. R.S. 15:529.1 using a separate conviction from the prior convictions used to prove the underlying offense. Accordingly, the defendant’s assignment of error has no merit.

CONCLUSION

We find no error in the trial court’s enhancement of the defendant’s sentence pursuant to La. R.S. 15:529.1. The prior convictions used to convict the defendant 11gof third offense marijuana possession were not the same as that alleged in the multiple offender bill of information. The defendant’s conviction, multiple offender adjudication, and sentence are affirmed.

AFFIRMED

      . The defendant was originally charged with possession of cocaine in excess of 400 grams on September 7, 2004, but pled guilty to the lesser charge of possession of cocaine in excess of 200 grams, but less than 400 grams. See also La. R.S. 40:967(F)(1)(A)-(B). The multiple bill filed by the state incorrectly stated that the defendant pled guilty to cocaine possession in excess of 400 grams. However, the trial court allowed the state to amend the bill to correctly provide that the defendant plea to the reduced charges.

      . The record reflects that the defendant pled guilty to his prior charges of possession of marijuana Case no. 425-571 and Case No. 429-760. The parties also stipulated to this at the trial of the underlying marijuana possession, third offense.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Richard R. MILLS.
    No. 2012-KA-0851.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

hThe defendant, Richard Mills, appeals his convictions for possession of cocaine and possession of drug paraphernalia (third offense), along with his multiple offender sentence. We affirm the defendant’s conviction for possession of cocaine, as well as his multiple offender sentence. We reverse the defendant’s conviction for third offense possession of drug paraphernalia.

PROCEDURAL HISTORY

The defendant was charged by bill of information with one count of possession of cocaine in violation of La. R.S. 40:967(C) and one count of possession of drug paraphernalia (third offense) in violation of La. R.S. 40:1025(C). The defendant pled not guilty to both counts at arraignment. After a jury trial, the defendant was found guilty as charged on both counts. The trial court denied the defendant’s motions for new trial and post-verdict judgment of acquittal, and sentenced the defendant to serve five years at hard labor on the charge for possession of cocaine and five years at hard labor on the charge for possession of drug paraphilia. Both sentences were to be served concurrently, with | credit for time served. The State filed a multiple bill of information, alleging the defendant to be a second felony offender. The defendant pled guilty to the multiple bill. The trial court vacated the sentence imposed on the conviction for possession of cocaine and re-sentenced the defendant to ten years at hard labor with credit for time served.

This appeal followed.

STATEMENT OF FACT

On December 14, 2010, while on patrol, New Orleans Police Officers Glen Buckel and Steve Gaudet observed the defendant, near the intersection of Saratoga and Clio Streets. After seeing the officers, the defendant became startled and dropped a glass tube. Officer Buckel observed that the object was a pipe and heard it break into two pieces. Based upon these observations, he believed that the defendant had discarded some type of contraband so he exited his vehicle and retrieved the pipe. The object was consistent with a crack pipe: burnt at both ends with burnt copper mesh inside. Both officers believed that the pipe contained residual contraband in it. After Officer Buckel retrieved the pipe, the defendant was placed under arrest for possession of drug paraphernalia. In a search incident to the arrest, a white rock wrapped in plastic was recovered from the defendant. The rock-like object field tested positive for cocaine.

John Palm, a criminalist with the New Orleans Police Department Crime Lab, testified that he tested the glass tube for cocaine, and it tested positive. He also tested the rock-like substance, but it tested negative for illegal narcotics. Palm ^testified that it is possible, but not probable, that another part of the rock would test positive for cocaine.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to wait for the legal delays after denying the defendant’s motion for new trial before imposing sentence. La. C.Cr.P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence maybe imposed immediately.

In the present case, the trial court asked the defendant if he was ready for sentencing, and defense counsel responded in the affirmative. By virtue of the defense counsel’s statement, defendant announced his readiness for sentencing, which implicitly waived the waiting period. See State v. Robichaux, 00-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 465.

DISCUSSION

In this appeal, the defendant asserts four assignments of error, two counseled and two pro se: 1) the defendant’s right against double jeopardy was violated; 2) the defendant’s right to present a defense was violated; 3) the trial court imposed an unconstitutionally excessive sentence; and 4) counsel was ineffective for failing to object to the sentence as unconstitutionally excessive.

[4In his first counseled assignment of error, the defendant argues that his conviction for both possession of cocaine and possession of drug paraphernalia violates the defendant’s right against double jeopardy. We agree.

The Double Jeopardy Clause protects defendants from being punished or prosecuted twice for the same offense. U.S. Const, amend. V; La. Const, art. I, § 15; and La.C.Cr.P. art. 591. La.C.Cr.P. art. 596 provides:

Double jeopardy exists in a second trial only when the charge in the trial is:

1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
2) Based on a part of a continuous offense for which the defendant was in jeopardy in the first trial.

The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense, and also to protect a person against multiple punishments for the same conduct. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), rev’d on other grounds; State v. Vaughn, 431 So.2d 763 (La.1983). Louisiana has used both the “Blockburger test” and the “same evidence test” to determine if double jeopardy exists. La.C.Cr.P. art. 596; State v. Vaughn, supra.

The “Blockburger test” was established by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in which the Court stated:

The applicable rule is that where the same act or transaction constitutes violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

|sOn the other hand, the “same evidence test”, adopted and explained in State v. Steele, 387 So.2d 1175 (La.1980), provides that:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for the conviction, not all the evidence introduced at trial ... The “same evidence test” is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.

Id. at 1177. Thus, double jeopardy offers protection not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct. State v. Vaughn, supra; State v. Watson, 97-0358 (La.App. 4 Cir. 1/23/98), 706 So.2d 1044.

The Double Jeopardy Clause, under both the “Bloclcburger” and the “same evidence” tests, prevents an offender from being convicted of both a felony murder and the underlying felony. State ex rel. Adams v. Butler, 558 So.2d 552, 553-554 (La.1990). The rationale which supports that rule is the same as that which prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself. State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809; State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57.

In the present case, the defendant was convicted of possession of drug paraphernalia, i.e., a crack pipe, and possession of cocaine. The defendant argues that the two convictions are based upon the same evidence, the residual cocaine | (¡found in the glass crack pipe. La. R.S. 40:1023(C) states that it is “unlawful for any person to ... possess with intent to use, any drug paraphernalia, to ... ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Part.”

La. R.S. 40:1021 provides that “unless the context clearly indicates otherwise, the term ‘drug paraphernalia’ shall mean and include, but not be limited to ... glass ... pipes with or without screens.” La. R.S. 40:1022 sets forth factors to be considered in determining whether an object is drug paraphernalia.

In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other legally relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use.
(2) The proximity of the object, in time and space, to a direct violation of the Uniform Controlled Dangerous Substances Law.
(3) The proximity of the object to controlled substances.
(4) The existence of any residue of controlled substances on the object.
(5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows or should reasonably know intend to use the object to facilitate a violation of the Uniform Controlled Dangerous Substances Law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of the Uniform Controlled Dangerous Substances Law shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia.
(6) Instructions, oral or written, provided with the object concerning its use.
(7) Descriptive materials accompanying the object which explain or depict its use.
17(8) National and local advertising concerning its use.
(9)The manner in which the object is displayed for sale.
(10) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise.
(11) The existence and scope of legitimate use for the object in the community.
(12) Expert testimony concerning its use.

Here, the only evidence introduced to aid in determining whether the defendant had possession of the pipe with the intent to use was the evidence of the residual cocaine in the pipe. There was no other testimony presented to show intent.

In State v. McMooain, 95-2103 (La.App. 1 Cir. 9/27/96), 680 So.2d 1370, the State sought to use residual cocaine in a crack pipe as evidence to support the charge of possession of cocaine after the defendant had entered a guilty plea to possession of drug paraphernalia. The First Circuit found that guilty plea to possessing drug paraphernalia precluded the State, on double jeopardy grounds, from prosecuting the defendant for possession of cocaine because the cocaine residue from the pipe was the only evidence to support both the possession of drug paraphernalia charge and the possession of cocaine charge. As in McMooain, use of the same cocaine residue as evidence to support both convictions violates the defendant’s right against double jeopardy.

IsThe State argues that the defendant’s conviction for possession of cocaine is based upon the defendant’s possession of the rock-like object, which tested positive for cocaine in a field test. However, John Palm, the criminalist with the New Orleans Police Department Crime Lab, testified that when he tested the rock-like object, it was negative for all illegal drugs. Mr. Palm further testified that while it is possible, it is not probable, that such an object could test positive on one side and not the other. Such testimony is not sufficient to sustain a conviction for possession of cocaine. The testimony does not reach the standard of beyond a reasonable doubt. Therefore, the only basis for the defendant’s conviction for possession of cocaine would be the residual cocaine found in the crack pipe.

The procedure for remedying a violation of double jeopardy is to vacate the conviction and sentence of the less severely punishable offense, and affirm the conviction and sentence of the more severely punishable. See State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990); and State v. Doughty, 379 So.2d 1088 (La.1980). Accordingly, we vacate the defendant’s conviction and sentence for possession of drug paraphernalia, third offense.

In his second counseled assignment of error, the defendant argues that the trial court in not allowing Susan Hutson, the independent police monitor, to testify about complaints made against Officer Gaudet. He further asserts that his right was also inhibited by the trial court’s refusal to allow the defense to introduce Ms. Hutson’s letter/report to the Public Integrity Bureau into the record.

The defendant proffered Ms. Hutson’s testimony along with a letter/report to the PIB. Ms. Hutson would have testified that Officer Gaudet has had ten complaints filed against him from 2005 to 2011, and that she has asked the Public Integrity Bureau (PIB) to determine if the officer needed to be placed in the | ¡performance Improvement Plan. Ms. Hutson would have also testified that she filed a complaint against Officer Gaudet on the defendant’s behalf after receiving a letter from the defendant and that the complaint was open and pending at the time of the trial. She also testified that she requested PIB to consider the officer for participation in a Performance Improvement Program, to determine whether he needed to be reassigned while the complaint is under review, and that he be warned not to retaliate due to the complaint. The complaint was also proffered into the record.

The Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee the criminally accused a meaningful opportunity to present a complete defense. State v. Blank, 04-204, p. 49 (La.4/11/07), 955 So.2d 90, 130. Under La. C.E. art. 402, all relevant evidence is admissible, and evidence that is not relevant is not admissible. La. C.E. art. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Finally, evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. art. 403; State v. Singleton, 01-1070 (La.App. 4 Cir. 9/25/02), 828 So.2d 1185. A district court judge enjoys broad discretion in admitting or excluding evidence on relevancy grounds. State v. Miles, 402 So.2d 644, 647 (La.1981); State v. Dressner, 08-1366 (La.7/6/10), 45 So.3d 127, 137-38.

Every witness in a criminal case subjects himself to a credibility attack by way of examination of his prior criminal convictions. La. C.E. art. 609.1. | in“Generally, only offenses for which the witness has been convicted are admissible upon the issue of credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, a prosecution, or an acquittal.” Id. Additionally, under La. C.E. art. 608, reputation evidence to attack or support a witness’s credibility is limited to references to the witness’s character for truthfulness or untruthfulness. However, as noted in C.E. art. 608(B): “Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.”

Although only convictions can be used to impeach credibility as a general rule, many cases have held that possible or ongoing prosecutions that have not resulted in a conviction can be used to show bias or interest under La. C.E. art. 607D(1). As stated in State v. Vale, 95-1230, 95-577, p. 4 (La.1/26/96), 666 So.2d 1070, 1072:

This court granted certiorari because the trial court’s ruling [prohibiting the defense from cross-examining the witness about a pending charge], affirmed by the court of appeal, conflicted with numerous decisions by this court that to the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); see also State v. Nash, 475 So.2d 752, 755-56 (La.1985). A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct. Id.

Thus, alleged criminal conduct which has not resulted in a conviction may be elicited from a witness at trial to show bias or interest.

The defendant argues that when the trial court refused to allow Ms. Hutson to testify, he was denied his right to present a defense regarding his theory that Officer Gaudet and his partner framed him because he refused to become an informant. However, the record on appeal discloses no testimony given by Officer Gaudet that could have been directly impeached by extrinsic evidence of the alleged investigations against him. For example, in State v. Cureaux, 93-838 (La.App. 4 Cir. 10/27/94), 645 So.2d 1215, this Court held that the defendant could impeach an officer’s testimony that he had been a police officer for four years with extrinsic evidence that the officer had been suspended for some sixteen months. In State v. Hollins, 97-627 (La.App. 5 Cir. 11/25/97), 704 So.2d 307, the court found that evidence of an officer’s suspension was inadmissible for impeachment purposes because it did not involve a conviction. In a footnote, the court noted that had the officer testified at trial that he was an employee in good standing with the sheriffs office, then the defendant could have impeached him with extrinsic evidence that he had in fact been suspended. See also State v. Thompson, 08-874 (La.App. 4 Cir. 4/8/09), 10 So.3d 851, writ denied, 09-1044 (La.1/29/10), 25 So.3d 827 (where this Court held that the trial court properly granted the state’s motion in limine because evidence that the officer was the subject of a pending |12conduct investigation regarding the officer’s alleged participation in a battery incident was not admissible as evidence of interest or bias to impeach the officer’s testimony in an unrelated prosecution for possession of cocaine); and State v. Simmons, 10-1508 (La.App. 4 Cir. 2/15/12), 85 So.3d 743. In addition, Officer Buckel’s testimony corroborates Officer Gaudet’s testimony.

In light the above jurisprudence, we cannot find that the trial court abused its discretion when it refused to allow the defendant to introduce evidence regarding Officer Gaudet’s prior or pending investigations.

In his two pro se assignments or error, the defendant argues that his multiple offender sentence was excessive and that his trial counsel was ineffective. The defendant makes two arguments concerning his sentence: 1) the trial court erred in sentencing him without mentioning the sentencing guidelines outlined in La.C.Cr.P. art. 894.1, and is, therefore, excessive; and 2) his counsel was ineffective in not objecting to or filing a motion for reconsideration of sentence.

In addressing his first argument, the defendant concedes his trial counsel failed to make an oral motion, file a written motion for reconsideration of sentence, or object to the sentence in any way. Therefore, the defendant is precluded from raising the claim of excessive sentence. La. C.C.P. arts. 841 and 881.1; and State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775. In Tyler, the defendant failed to file a motion for reconsideration of sentence or to object to the sentence, and this court found that he had failed to preserve his argument for appeal, and he was precluded from arguing that the trial court failed to follow La. C.Cr.P. art. 894.1 in sentencing him.

| iJn reference to his second argument, the defendant contends that if this court’s review of his sentence is precluded due to counsel’s failure to object or file a motion to reconsider the sentence, such lapse on counsel’s part amounts to ineffective assistance of counsel.

As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court where a full eviden-tiary hearing may be conducted if warranted. State v. Howard, 98-64, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient, the claims may be addressed on appeal. State v. Bordes, 98-86, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147. We find the trial judge’s comments during sentencing are adequate; therefore, the record is sufficient and the issue of ineffective assistance of counsel shall be addressed.

For a defendant to be successful in a claim of ineffective assistance of counsel, he must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is considered ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Likewise, counsel’s deficient performance will have prejudiced the defendant if the errors were so serious as to deprive the defendant of a fair trial. Id. To carry this burden, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. This Court has recognized that a defendant must make both |14showings to establish that counsel was so ineffective as to require reversal. State v. Jenkins, 09-1551, pp. 4-5 (La.App. 4 Cir. 6/30/10), 45 So.3d 173, 176. (citation omitted).

Thus, to prevail on this claim the defendant must show that there is a reasonable probability that, had defense counsel objected to or filed a motion to reconsider sentence and preserved the sentencing issue raised in his first argument, this court would have found merit in that argument. This brings us to a consideration of the defendant’s contention, as expressed in his first argument, that his sentence was excessive.

La. Const, art. I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 978, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, (La.App. 4 Cir. 3/16/99) (quoting State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461). However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979 (citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4th Cir.1987)). Courts must apply these penalties unless they are found to be unconstitutional.

A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676; State v. Bonanno, 384 So.2d 355, 357 (La.1980). 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. Baxley, 94-2982 at p. 9, 656 So.2d at 979 (quoting State v. Lobato, 603 So.2d 739, 751 (La.1992)).

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 2002-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. Intertwined with this issue is the defendant’s argument that the trial court erred in failing to consider the factors outlined in La. C.Cr.P. art. 894.1.

The trial judge’s failure to comply with La.C.Cr.P. article 894.1 does not automatically render a sentence invalid. The Louisiana Supreme Court has held that although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. State v. Wimberly, 414 So.2d 666 (La.1982). Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised. State v. Price, 403 So.2d 660 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980). Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, the Louisiana Supreme Court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1. State v. Boatright, 406 So.2d 163 (La.1981); State v. McDonald, 404 So.2d 889 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981); State v. Douglas, supra.

If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239. See also State v. Bonicard, 98-665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

This Court, in State v. Kelly, 08-200 (La.App. 4 Cir. 6/4/08), 986 So.2d 880, affirmed a sentence of eight years at hard labor for a defendant who was convicted of possession of cocaine and adjudicated a second felony offender. The Court noted that the defendant had prior convictions for possession of cocaine and possession of marijuana.

Similarly, in the present case, the record reflects that the defendant had a prior conviction for possession of cocaine and three prior convictions for possession of drug paraphernalia. The packets from the prior convictions for possession of drug paraphernalia also reveal that on one occasion, the defendant 117was arrested, but not charged with possession of cocaine at the same time he was arrested for possession of drug paraphernalia. Although the defendant received the maximum sentence, the sentence was not a purposeful imposition of pain and suffering. At the sentencing hearing, the trial court expressed its intention to recommend the defendant for all drug treatment programs available through the Department of Corrections, including the Blue Waters Program. This demonstrates that the trial court considered the defendant's drug dependency and need for institutionalized rehabilitation. Under the facts set forth in the record, we cannot find that the trial court abused its discretion in sentencing the defendant to ten years at hard labor. Accordingly, we do not find that defense counsel’s failure to object to or file a motion to reconsider the sentence prejudiced the defendant, so as to render his assistance ineffective.

CONCLUSION

The defendant’s conviction and sentence for possession of drug paraphernalia, third offense, is hereby vacated. The defendant’s conviction for possession of cocaine and enhanced sentence are affirmed.

AFFIRMED IN PART; REVERSED IN PART

      . The parties stipulated that if George Jacobs, a fingerprint analyst, were called to testify, he would testify that defendant had three prior convictions for possession of drug paraphernalia.

      . In Warner, this Court ruled that double jeopardy barred the prosecution for cocaine possession of a defendant who had previously been convicted under La. R.S. 14:95(E) of possession of a firearm while in possession of the same cocaine. The appellate court noted that "[wjhen the gravamen of the second offense is essentially included within the offense for which the defendant was first tried, the second prosecution is barred because of former jeopardy.” Warner, 94-2649 at p. 7, 653 So.2d at 61. In Warner, this Court noted that the defendant’s prosecution under the cocaine possession charge would require the use of the same evidence presented against him under La. R.S. 14:95(E), and concluded that the prohibition against double jeopardy would be violated. Warner, 94-2649, p. 8, 653 So.2d at 61.

      . The law is clear that a conviction under the Controlled Dangerous Substances Act may rest on mere traces or residue of narcotics. See State v. Wright, 618 So.2d 540, 543 (La.App. 4 Cir.1993), writ denied, 623 So.2d 1334 (La.1993); State v. Sylvia, 01-1406 (La.4/9/03), 845 So.2d 358, State v. Spates, 588 So.2d 398 (La.App. 2 Cir.1991); State v. Fontenot, 578 So.2d 1032 (La.App. 3 Cir.1991), writ denied, 582 So.2d 1305 (La.1991).

      . La C.E. art. 607(D)(1) states:
      D. Attacking credibility extrinsically. Except as otherwise provided by legislation: (1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
      This article is also subject to the balancing test set forth in article 403. See La. C.E. 607(D)(2).

      . Though Officer Gaudet denied that he was admonished by Superintendent Westbrook regarding the defendant’s case, neither Ms. Hut-son, nor her letter, serve to disprove this testimony, as Ms. Hutson testified that the investigation was still open and she was unaware of the results. Likewise, extrinsic evidence to establish that there was an ongoing investigation was inadmissible because the officer never denied this fact, he only indicated that he was unaware of it.


text:
    STATE of Louisiana v. Michael J. LAWRENCE.
    No. 2012-KA-1026.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Donna R. Andrieu, Assistant District Attorney of Orleans Parish, Matthew R. Payne, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

| ¶ Defendant appeals his convictions and sentences for distribution of cocaine and possession of cocaine. We find the defendant was not prejudiced by the prosecutor’s closing arguments and therefore there is no abuse of the trial court’s discretion in denying defendant’s motion for mistrial. We do, however, find error in the trial court’s sentencing as to defendant’s conviction on count two. We affirm defendant’s convictions and his sentence as to count one. Defendant’s sentence as to count two is vacated and remanded to the trial court for resentencing in accordance with this opinion.

STATEMENT OF CASE

On June 12, 2008, the state charged Michael J. Lawrence with one count of distribution of cocaine and one count of possession with intent to distribute cocaine. A co-defendant, Louis Seymour, was charged with one count of distribution of cocaine. Trial commenced in this matter on December 5, 2012. The jury found the defendant guilty as charged on count one, distribution of cocaine, and guilty of the lesser included offense, simple possession of cocaine, on count two. As to count one, the trial court sentenced the defendant to five years imprisonment for the offense of distribution of cocaine. The sentencing transcript | ¡.reflects that the trial court sentenced the defendant, on count two, to five years imprisonment for his conviction for “possession with intent to distribute cocaine.” It is from these convictions and sentences the defendant now appeals.

STATEMENT OF FACTS

Detective Michael Dalferes, a member of the Major Case Narcotics Unit of the New Orleans Police Department, testified that on April 11, 2008, he was part of an undercover buy/bust operation targeting street level narcotics dealers; Detective Dalferes’ assignment was to pose as a potential buyer in an unmarked vehicle equipped with audio and video surveillance. At the beginning of the operation, he was supplied with pre-recorded expense funds to complete any narcotics purchases. Prior to the operation, the bills were photocopied to record the serial numbers.

Once the operation commenced, and his supporting units were in position, Detective Dalferes proceeded down Marais Street. A subject later identified as Louis Seymour flagged him down. Detective Dalferes stopped his vehicle and told Seymour that he wanted “two dimes,” which Detective Dalferes explained is street terminology for two ten dollar pieces of crack cocaine. The subject told him that he could get it and told Detective Dalferes to pull over. Dalferes handed the subject a twenty dollar bill and moved the vehicle to the side of the street.

The subject walked out of the detective’s view, turning on St. Anthony Street. A short time later, he returned with a single twenty dollar piece of crack cocaine wrapped in plastic, rather than two ten dollar pieces Dalferes had requested. Dal-feres then drove away from the area, radioed members of his support team, provided a description of the subject, and gave them the signal to move in and effect the arrest.

^Detective Andrew Roccaforte observed the subject, later identified as the co-defendant, Louis Seymour, make contact with Detective Dalferes. He then watched Seymour proceed on St. Anthony Street in a riverbound direction. He maintained sight of him until he approached the front door of a residence located at 1220 St. Anthony Street.

Seymour knocked, and within seconds he was greeted at the door by a black male. Seymour handed the subject currency in exchange for a small object. After completing the exchange, the subject entered the residence for a few minutes and then left. Roccaforte observed Seymour return to Detective Dalferes’ location where he completed a hand-to-hand exchange.

Detective Kyle Hinrichs was the first detective to arrive to effect the arrest of Louis Seymour. After arresting Seymour, he left him in the custody of two detectives and proceeded to 1220 St. Anthony Street, where he was met by Sergeant Jeff Sislo and another detective. They knocked on the door, and the defendant responded. The officer instructed the defendant to step outside. The defendant was advised of the investigation and of his Miranda rights. He admitted that he had a piece of crack cocaine on him at that time and stated, “I can’t go, I can’t go to jail.”

Mr. Lawrence was placed under arrest and searched. A total of twenty-seven dollars was recovered, which included a twenty dollar bill. A piece of crack cocaine was discovered on his person. Detective Hinrichs compared the serial number of the recovered bill to the original photocopy and determined that they matched.

|4Sergeant Jeff Sislo entered the residence to speak with the occupants and see what was going on. He also did a quick walk through for safety reasons to determine who was present inside the residence. On the coffee table in the front room, he observed approximately six or seven crack pipes (clear plastic tubes with burnt residue) and a razor blade. There were four women inside the residence at the time. One was bedridden. She was identified as the owner.

Mr. Lawrence testified on his own behalf. He denied possessing or distributing any drugs on the day in question. However, defendant admitted to being addicted to crack cocaine, a problem which he was combating. He also admitted to having two previous convictions for possession of cocaine as well as four convictions for theft from when he was much younger.

The defendant informed the jury that he lived nearby the house in question and had gone there that day to visit the bedridden women who lived at the house. Defendant knew her and her daughter Mary from his involvement with crack; however, he did not come to the house on the day in question to get high, only to check on the women’s well-being.

Lawrence stated that when he entered the house there were “six or eight women and men in the back of the house.” While he was talking to Mary’s mother, Mary came from the rear of the house and asked him if he had change for a twenty dollar bill, which he did. He then gave her a ten, a five, and five ones in exchange for the twenty dollar bill, which was the same bill the police recovered from him.

The defendant denied selling any drugs to Louis Seymour.

ERRORS PATENT/ASSIGNMENT OF ERROR NO. 2

| ^Review of the record for errors patent reveals two. The first is also addressed through an assignment of error by the defendant.

The trial transcript shows that the jury found the defendant guilty on count two of the lesser included offense of possession of cocaine; however, the minute entry from the trial states that the defendant was convicted of possession with intent to distribute cocaine. Where there is a discrepancy between a minute entry and the transcript, the transcript prevails. State v. Randall, 10-1027, p. 3 (La.App. 4 Cir. 6/22/11), 69 So.3d 683, 685.

Furthermore, at sentencing, the trial court noted that the jury found the defendant guilty of possession with intent to distribute cocaine before sentencing him to five years on that count. Defendant’s sentence as to count two must be vacated and remanded for resentencing for correction of the minute entry.

The second error patent relates to the trial court’s failure to order that the first two years of defendant’s sentence, as to count one, be served without the benefit of parole as required by La. R.S. 40:967(B)(4)(b). However, as per La. RS. 15:301.1(A) and State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 798-99, the sentence is deemed to have been imposed with this restriction, and no further action by this Court is required.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment of error, defendant contends that the trial court erred by failing to grant a mistrial after he objected to several statements by the prosecutor during closing arguments.

Pursuant to La.C.Cr.P. art. 774, the scope of closing argument should be confined to the evidence admitted, the lack of evidence, conclusions of fact that the State or defendant may draw therefrom, and the law applicable to the case. The [^State’s rebuttal shall be confined to answering the argument of the defendant. Id.

While prosecutors have wide latitude with regard to tactics used during closing arguments, they should not appeal to prejudice and should refrain from making personal attacks on defense strategy and counsel. State v. Manning, 03-1982, p. 75 (La.10/19/04), 885 So.2d 1044, 1108; State v. Brumfield, 96-2667, p. 9 (La.10/20/98), 737 So.2d 660, 666. Nevertheless, even where a prosecutor exceeds that wide latitude, the reviewing court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the guilty verdict. State v. Taylor, 93-2201, p. 19 (La.2/28/96), 669 So.2d 364, 375.

A trial court has broad discretion in controlling the scope of closing arguments, and Louisiana courts have consistently held that great consideration should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence, heard the arguments, and repeatedly been instructed by the trial judge that arguments of counsel are not evidence. State v. Casey, 99-0023, p. 17 (La.1/26/00) 775 So.2d 1022, 1036; State v. Mitchell, 94-2078, p. 11 (La.5/21/96), 674 So.2d 250, 258.

In State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, the Louisiana Supreme Court set forth the standard for determining whether a prosecutor’s remarks are so prejudicial as to warrant a new trial as follows:

Louisiana jurisprudence on prosecuto-rial misconduct allows prosecutors wide latitude in choosing closing argument tactics. See State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments referring to “smoke screen” tactics and defense “commipinkos” held inarticulate but not improper); State v. Copeland, 530 So.2d 526, 545 (La.1988) (prosecutor’s waving a gruesome photo at jury and urging jury to look at it if they become “weak kneed” during deliberations held not improper). In addition, La.Code Crim. Proc. art. 774 confines the scope of argument to “evidence admitted, to the lack of evidence, to conclusion of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” The trial judge has broad |7discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981). Even if the prosecutor exceeds these bounds, the court will not reverse a conviction if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. See State v. Martin, 93-0285, p. 18 (La.10/17/94), 645 So.2d 190, 200; State v. Jarman, 445 So.2d 1184, 1188 (La.1984); State v. Dupre, 408 So.2d 1229, 1234 (La.1982).

State v. Hoffman, supra at p. 45, 768 So.2d at 583.

Furthermore, prosecutors should not turn closing argument into a plebiscite on crime by making overt references to community sentiment. State v. Deboue, 552 So.2d 355, 364 (La.1989).

During his rebuttal closing, the prosecutor stated:

I had a mentor of mine tell me crack cocaine ... [is] like an iceberg. Looks so small. Just like an iceberg. All you see is what you see above the water. They say that that’s about five or ten percent of the actual size of the iceberg what you can visibly see above the water. That’s not the dangerous part. The part that wrecks your ship, that ruins your boat is the part that’s under water that you can’t see. That’s just like these crack rocks. They look small. And it’s people like Mr. Lawrence, so that either he could make some money or he could support his own addiction, who feed other people’s addictions, who ruin other people’s families and lives.

Defendant objected to the foregoing statement and moved for a mistrial. The court noted the objection, denied the motion, and then admonished the prosecutor to “stick to the evidence.” Shortly thereafter, the prosecutor stated:

Finally, I am going to leave this with you. It’s my last thought. Probably one of the most disturbing things to me during the process of the trial has been during, not really during my closing, but a lot during Mr. Malveau’s closing argument, I don’t know if you picked up on the snickering that’s happening on the other side of the courtroom, all of the laughter. He doesn’t get it. Icebergs. He doesn’t get it. Has no concept, gravity of what he’s done to other people’s lives.

IfiAgain, defendant objected and moved for a mistrial. The court overruled the objection and stated to the prosecutor, “Mr. Ghai, can you wrap it up, please?” The prosecutor continued his argument briefly before stating:

He’s laughing because he’s counting on you for your sympathy. Whether he’s counting on you for your sympathy or just counting on you to look past all of this, or he’s counting on you to let him go. And I beg you, the people of the city, people in this parish—

The defendant then objected to the prosecutor’s reference to “the people of the city” and moved for a mistrial, and the trial court again requested that the prosecutor “wrap it up.”

Defendant contends that the prosecutor’s arguments greatly exceeded the permissible scope of argument set for by La. C.C.P. art. 774 by suggesting that Mr. Lawrence, personally, had ruined people’s lives by selling them cocaine, even though no evidence was submitted to support such an assertion or even that defendant had sold cocaine in the past. Defendant notes that the prosecutor then compounded the error by suggesting that the jurors were obligated to find the defendant guilty on behalf of all the people in the city.

The State cites State v. Clark, 01-2087 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, in support of its argument that the comments by the prosecutor fall well short of the type of statements that would warrant a mistrial. In Clark, the prosecutor made a reference during rebuttal argument as to how many retail doses of heroin could have been made from the heroin seized from the defendant’s apartment stating, “‘that is two thousand needles sticking out of two thousand arms sitting right there.’ ” Id. at pp. 14-15, 828 So.2d at 1182-1183. Later, the prosecutor told the jury that “it was its chance to say no, that this is not acceptable and that drugs 1¡/will not go on in my city, in my community, in my schools.’ ” Defense counsel objected, but the objection was overruled.

This Court found that:

“In making the “two thousand-needle” comment in the instant case, the prosecutor was illustrating for the jury the societal impact of the retail distribution of the heroin found in defendant’s constructive possession. Even assuming this argument exceeded the scope of permissible argument, one would not be “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. Recognizing the good sense and fair-mindedness of the jurors who heard the evidence, it cannot be said that this comment constituted reversible error.”

Id. at pp. 15-16, 828 So.2d at 1183.

With respect to the prosecutor’s comment’s regarding- the jury’s opportunity to speak for the community and to put a stop to drugs this Court stated:

Applying the previously discussed standards, there is no indication that the jury verdict was not based on the evidence, and there is no indication that the jury was inflamed to mete out lynch-mob justice and convicted the defendant out of passion, not reason, because of these comments.

Id.

With respect to the present circumstances, the prosecutor’s “iceberg” analogy was not unlike the “two-thousand needle comment” in Clark. The prosecutor was commenting on the societal impact of crack for which the evidence suggested defendant was engaged in distributing. As to the prosecutor’s suggestion that it is people like the defendant who ruin other people’s families and lives by selling drugs, although the record evidence supported the conclusion that defendant was engaged in the distribution of crack cocaine, it is perhaps fair to say that the argument exceeded the permissible scope of La. C. Cr. P. Art. 774. Nevertheless, given the circumstances of the offense and the evidence submitted, | inone would not be “thoroughly convinced” that the argument influenced the jury and contributed to the verdict.

Defendant suggests that the impact of the prosecutor’s comments cannot be easily dismissed in light of the strength of his own testimony. However, given the detailed account of the transaction which the police observed, the recovery of the prerecorded twenty-dollar bill and the piece of crack cocaine from the defendant, we cannot agree. Despite defendant’s purportedly innocent explanation for possessing the currency, his previous criminal history provided a sufficient basis for the jury to doubt his credibility. The jury may have also found it curious that defendant was unable to identify the bedridden women in the apartment by name.

With respect to the prosecutor’s apparent attempt to persuade the jury to act on behalf of the community, defendant’s timely objection kept the prosecutor from completing his statement and likely diminished the effect of his comment. In any case, if nothing else, the jury’s verdict as to count two, finding the defendant guilty of the lesser included offense of simple possession cocaine, is support for the conclusion that the jury was not so inflamed by the prosecutor’s comment as “to mete out lynch-mob justice.” Id. at p. 16, 828 So.2d at 1183. In Clark, this Court reached a similar conclusion with respect to the effect if any of the prosecutor’s purportedly inflammatory comments after the jury found the defendant guilty of only possession of heroin rather than possession with intent to distribute heroin for which he would have faced a mandatory life sentence.

When the “good sense and fair-mindedness of the jury” is credited, one would not be thoroughly convinced that the prosecutor’s comments “influenced the jury and contributed to the verdict to defendant’s prejudice.” Id. at p. 17, 828 So.2d at 1184 (emphasis in original).

1 n Defendant’s assignment of error lacks merit.

CONCLUSION

Defendant’s convictions are affirmed as to all counts. Defendant’s sentence is affirmed as to count one. Defendant’s sentence as to count two is vacated and remanded for resentencing. The trial court is ordered to correct the minute entry of December 5, 2011, to accurately reflect the crime for which the defendant was convicted, possession of cocaine.

AFFIRMED, VACATED AND REMANDED FOR RESENTENCING

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