author: STEWART, J.

text:
    Cynthia BRIDGES, Secretary of the Louisiana Department of Revenue for the State of Louisiana, Plaintiff-Appellant v. Kenneth P. and Margaret L. BULLOCK, Defendants-Appellees.
    No. 48,231-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Department of Revenue, State of Louisiana, by Florence Bonaccorso-Saenz, Antonio Charles Ferachi, Bradley S. Blanchard, for Appellant.
    Kean Miller, Baton Rouge, LA, by Linda S. Akchin, Jenny N. Phillips, for Appel-lees.
    Before STEWART, MOORE and GARRETT, JJ.
   STEWART, J.

11At issue in this appeal by Cynthia Bridges, Secretary of the Louisiana Department of Revenue (referred to herein as the “LDR”), is whether the trial court erred in granting a motion for involuntary dismissal filed by taxpayers Kenneth and Margaret Bullock (“the Bullocks”) in response to the LDR’s petition for judicial review of a judgment by the Board of Tax Appeals (“the board”) favorable to the Bullocks. The involuntary dismissal was based upon the alleged lack of service on the Bullocks of the petition for judicial review. Because we find that the LDR satisfied the requirements under La. R.S. 47:1434 for judicial review, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

These proceedings were initiated by the Bullocks against the LDR by the filing of two petitions for refund with the board in 2006 and 2008. They claimed they were denied credits for ad valorem inventory taxes paid by their business, JPS Equipment, L.L.C., to political subdivisions in 2004, 2005, and 2006. The board heard the Bullocks’ claims on April 12, 2011, and rendered a judgment in their favor on May 12, 2011.

As authorized by La. R.S. 47:1434, the LDR filed on June 8, 2011, a petition for review of the board’s decision with the district court, specifically, the 3rd Judicial District Court (“3rd JDC”) in Lincoln Parish. On June 9, 2011, the district court judge signed an order allowing judicial review, directing that copies of the petition be mailed to the board and the 12Bullocks, and directing the board to file the record of its proceedings with the court within 20 days, all as prayed for in the petition for review. In fact, personal service of the petition for review was made on the Bullocks through their counsel of record on June 16, 2011.

On July 1, 2011, the Bullocks filed a number of exceptions. They asserted dec-linatory exceptions of insufficiency of citation and service, arguing that the petition for review is an original petition that must be served on the naméd defendant. Because the petition for review was served on their counsel of record in the proceedings before the board, they also asserted an exception of lack of personal jurisdiction. Asserting their domicile to be in Union Parish, not Lincoln Parish, the Bullocks excepted to venue. Lastly, they asserted the peremptory exception of prescription based on the alleged failure of Bridges to timely file the petition for review as required by La. R.S. 47:1434 in the proper district court within 80 calendar days after the Board’s decision was rendered and signed on May 12, 2011. Before these exceptions were heard, the Bullocks filed a supplemental declinatory exception of improper service and a motion for involuntary dismissal under La. C.C.P. art. 1672(C) for the LDR’s failure to request service within 90 days of commencement of the action as required by La. C.C.P. art. 1201(C).

After a hearing on the exceptions, the district court judge rendered an oral ruling sustaining the exception of improper venue and ordering the |smatter transferred to Union Parish, which is also within the 3rd JDC. The judge determined that the court of proper venue should address the other exceptions raised by the Bullocks. A judgment was signed on January 6, 2012.

Upon transfer to Union Parish, the same judge of the 3rd JDC who heard and granted the exception of venue in Lincoln Parish then heard the remaining exceptions and the motion for involuntary dismissal on March 22, 2013. After taking the matter under advisement, the district court judge rendered an oral ruling granting the motion for involuntary dismissal. Though the district court judge noted' that its granting of the motion made it unnecessary for it to decide the exceptions, the basis of the dismissal was that service of the petition for review on the Bullocks’ counsel of record in the proceedings before the board was not proper service of an original petition that commences a civil action. In effect, the trial court found merit to the exception as to insufficiency of service of process. The district court concluded that the LDR had neither requested nor made proper service on the Bullocks or a proper agent for them and that there was no showing of “good cause” as to why proper service could not have been requested. Accordingly, a judgment granting the Bullocks’ motion for involuntary dismissal and dismissing, without prejudice, the petition for review was signed on May 21, 2012. The LDR’s appeal followed.

^DISCUSSION

Though the LDR presents eight assignments of error on appeal, the underlying issue is whether a petition for judicial review filed under La. R.S. 47:1434 is subject to an involuntary dismissal under La. C.C.P. art. 1672(C) for the failure to comply with the requirements for citation and service under La. C.C.P. art. 1201.

With regard to an involuntary dismissal, La. C.C.P. art. 1672(C) reads:

C. A judgment dismissing an action without prejudice shall rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declina-tory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

A trial court has great discretion in granting an involuntary dismissal. Barnes v. Barnes, 46,417 (La.App.2d Cir.6/22/11), 71 So.3d 1004; Smith v. Knight, 39,781 (La. App.2d Cir.6/29/05), 907 So.2d 831.

As stated, the trial court’s ruling effectively sustained the declinatory exception of insufficient service of process based on the failure of Bridges to comply with La. C.C.P. art. 1201, which provides:

A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.
B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional ^defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinato-ry exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.

A civil action is a demand for the enforcement of a legal right and is commenced by the filing of pleading presenting such demand to a court of competent jurisdiction. La. C.C.P. art. 421. Here, the Bullocks made a demand for the enforcement of a legal right by filing petitions for refund of overpayments of taxes. The power of taxation is vested .in the legislature, which is mandated to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” La. Const. Art. VII, § 1 and § 3(A); St. Martin v. State, 2009-0935 (La.12/1/09), 25 So.3d 736. The Bullocks’ action arises under one such remedy, namely, the Refund of Overpayments remedy under La. R.S. 47:1621, et seq. If the collector denies or fails to timely act on a refund claim, then the taxpayer “may appeal to the board of tax appeals for a hearing on the claim filed.” La. R.S. 47:1625. This avenue of redress is repeated in La. R.S. 47:1431, which provides that a taxpayer aggrieved by the collector’s action or failure to act on a claim for a refund may appeal to the board by filing a petition to have the alleged overpayment determined.

As authorized by La. R.S. 47:1431 and R.S. 47:1625, the Bullocks sought enforcement of their legal right to a refund before the board, which was created to “hear and decide, at a minimum of expense to the taxpayer, questions of law and fact arising from disputes or controversies between a | fi-taxpayer and the collector of revenue for the State of Louisiana in the enforcement of any tax, excise, license, permit or any other tax law administered by the collector!.]” La. R.S. 47:1401. In proceedings concerning refund claims, the board is authorized to “render judgment” as provided in La. R.S. 47:1625, and that judgment is subject to judicial review as provided by La. R.S. 47:1434-1436. St. Martin, supra. By commencing the refund proceedings before the board, the Bullocks submitted themselves to the procedures set forth for review by the board and for any further appellate review of the board’s judgment by the courts.

As explained by the supreme court in St. Martin, supra, the board serves as a trial court, and the district court as an appeals court in its review of the board’s decisions. The court noted that “district courts are courts of limited jurisdiction and have only appellate jurisdiction to review administrative decisions as provided by the legislature and constitution.” Id., at p. 7, 25 So.3d at 740. The court further noted that “the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies.” Id., citing Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La.1987).

The procedure for obtaining judicial review of the board’s judgments is set forth in La. R.S. 47:1434 as follows, with emphasis added:

After a decision or judgment of the board, the collector or taxpayer may, within thirty calendar days after such decision or judgment has been rendered and signed, file a petition with the district court in accordance with the provisions hereinafter set out, for review of the said decision or judgment of the board. The party filing such petition shall before the filing of same, either at open ^hearing or by motion, notify the board of his intention to file such petition for review. Provided that when the board has found any tax to be due, a taxpayer must, when giving the notice of intention to file a petition for review, post bond, with surety approved by the board conditioned upon the payment of the tax as finally determined, together with any interest, additional amounts or additions to the tax provided for by law, payable to the collector, in an amount not to exceed one and one-half times the said tax, interest, and penalty found to be due in said decision or judgment of the board, and the posting of such bond shall be a condition precedent to the filing of any petition for review in any district court.
Thereafter, and within the thirty calendar days from the date of the rendering and signing of such decision or judgment of the board, the taxpayer may file his petition for review with the proper district court setting forth specifically any errors which may have been committed by the board in reaching its decision or judgment.
When the district judge has ordered the review, a copy of the order and petition shall be mailed to the secretary-clerk of the board, and the opposing party or counsel representing him, and the order shall command the secretary-clerk of the board to send up within twenty days from the date thereof the original transcript of the record, together with all exhibits and evidence thereto attached; which record shall be the basis for any action on review and the decision of the distinct court shall be rendered upon the said record as made up before the board.

A law that is clear and unambiguous and .whose application does not lead to absurd consequences must be applied as written with no further interpretation made in search of the legislative intent. McLane Southern, Inc. v. Bridges, 2011-1141, p. 5-6, (La.1/24/12), 84 So.3d 479, 483, and cases cited therein. This principle of statutory interpretation is applicable to the tax statutes. Id. The language of La. R.S. 47:1434 governing judicial review of the board’s decisions is clear and unambiguous, and its application does not lead to absurd consequences. The last paragraph of La. R.S. 47:1434 requires the mailing of a copy of the order granting the review along with the petition to the board’s secretary-clerk and “the opposing Isparty or counsel representing him.” This is the procedure that was followed in this matter and, in fact, exceeded by the LDR and the district court.

The LDR’s petition for review requested that a copy of the order of review and the petition be mailed to the board’s secretary-clerk and the Bullocks. However, the LDR’s filings also included service instructions for the Bullocks through their counsel of record. In accordance with these instructions, the Bullocks were served with citation along with copies of the petition and order through their counsel of record on June 6, 2011. Thus, the LDR did more than what the law requires to obtain judicial review of the board’s judgment.

Nothing in La. R.S. 47:1434 or the other provisions applicable to judicial review of the board’s judgments or decisions requires service of process in accordance with La. C.C.P. art. 1201(C). When interpreting a statute, courts should give effect to all parts of a statute and should not' reach an interpretation that renders any part superfluous or meaningless. Id. Requiring compliance with La. C.C.P. art. 1201 would render the requirements under La. R.S. 47:1484 for mailing a copy of the order and petition to the opposing party or counsel representing him superfluous and meaningless since service of process requires that the citation be accompanied by a copy of the petition as provided by La. C.C.P. art. 1202, and such service would typically include a copy of any order signed by the court. -We find that the trial court erred as a matter of law in reading the requirements for service of process and citation under La. C.C.P. art. 1201 into the clear and unambiguous judicial review procedure set forth at La. R.S. 47:1434. The specific statutory procedure for obtaining judicial review implies a legislative intent that it be the exclusive means of obtaining judicial review of the boards decisions and judgments.

As stated, the district court’s jurisdiction in reviewing decisions by the board is appellate in nature. St. Martin, supra; Clark v. State, 2002-1936 (La.App. 1st Cir.1/28/04), 873 So.2d 32, writ denied, 2004-0452 (La.4/23/04), 870 So.2d 300. Judicial review of the board’s decisions is based upon the record made before the board and is limited to the facts on the record, which are reviewed under the manifest error standard, and questions of law. International Paper, Inc. v. Bridges, 2007-1151 (La.1/16/08), 972 So.2d 1121. The district court does not conduct a full hearing in open court which would be subject to the ordinary rules of procedure and proof. See Flynn v. State, Dept. of Public Safety & Correction, 608 So.2d 994, 998 (La.1992). As such, the petition for judicial review does not institute a typical civil action which requires the district court to make factual findings and apply the law to such facts in order to reach a decision on the demand presented. The action is initiated before the board, and the petition for judicial review authorized by La. R.S. 47:1434 is akin to a petition for an appeal. Under La. C.C.P. art. 1312, service on the adverse party is not required for a petition for an appeal. However, La. R.S. 47:1434 does require that a copy of the petition and order authorizing review be mailed to the opposing party or counsel representing him, and this requirement was satisfied in this matter.

|inWe observe that had the legislature, in devising the specific statutory procedure for judicial review of the board’s decisions, intended to require service of process and citation, it could have so stated in La. R.S. 47:1434. For instance, the procedure for judicial review of adjudications provided in the Administrative Procedure Act (“APA”) requires the filing of a petition in the district court and service of copies of the petition on the agency and all parties of record. La. R.S. 49:964(B). The provision authorizing judicial review of unemployment compensation claims instructs that a certified copy of the petition shall be served on the administrator named as a party defendant by leaving with him or his representative copies of the petition for each defendant; furthermore, upon such service, or where the administrator files a petition for review, the administrator must send each party a copy of the petition by registered mail, and “such mailing shall be deemed to be completed service on all parties.” La. R.S. 23:1634(A) and (B). Under La. R.S. 37:786(A)(3), a copy of the petition for judicial review of the Board of Dentistry’s decisions in an administrative adjudication “shall be served on the agency and all parties of record.” Likewise, copies of petitions for review by the district court of administrative decisions rendered under the Corrections Administrative Remedy Procedure, La. R.S. 15:1171, et seq., “shall be served upon the agency and all defendants, as provided by law.” La. R.S. 15:1177(A)(l)(a). While this is not an exhaustive survey of the various judicial review procedures in our law, these examples show that the legislature knows how to provide specific | n requirements for service when such is intended. Therefore, it must have intended for the mailing of copies of the petition and district court’s order to suffice, in lieu of service of process and citation, as notice of the filing of a petition for judicial feview of the board’s decisions and judgments.

La. R.S. 47:1431, et seq., sets forth a procedure by which a taxpayer may challenge the collector’s action or failure to act on a refund of overpayment claim and other allowed claims. Under this procedure, the board is the trier of fact, and the district court exercises appellate review. The Bullocks invoked this procedure by filing petitions for refunds and thus submitted themselves to all the process and procedures provided for a determination of their claim, including appellate review before the judiciary. The LDR complied with the requirements of La. R.S. 47:1434 in providing the required notice of the petition for judicial review to the Bullocks through their counsel of record in these proceedings. For all the reasons mentioned in this opinion, we find that the trial court abused its discretion in granting the Bullocks’ motion for involuntary dismissal and in dismissing the petition for judicial review.

CONCLUSION

For the reasons stated, we reverse the judgment of the district court and remand for further review proceedings. Costs are assessed against the Bullocks.

REVERSED and REMANDED.

      . The Bullocks’ petitions were filed pursuant to La. R.S. 47:1625, which allows a taxpayer to appeal to the board when his claim for a refund or credit is denied by the collector or not acted upon within one year of the date of receipt of a properly filed claim.

      . During these proceedings, the Bullocks have at all times been represented by attorneys with Kean Miller, L.L.P., namely, Christopher J. Dicharry, Jenny N. Phillips, and / or Linda S. Akchin. The suggestion that the Bullocks had no counsel of record at the time of service is belied by the record, which shows the vigorous advocacy by these attorneys on behalf of the Bullocks.

      . The venue ruling is not before this court for review.

      . Pursuant to La. R.S. 49:967, the administrative procedure set forth at Chapter 13 of Title 49 of the Revised Statutes is not applicable to the board.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Steve Allen HUMPHRIES, Appellant.
    No. 48,235-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before BROWN, PITMAN & GARRETT, JJ.
   PITMAN, J.

LA unanimous jury convicted Defendant Steve Allen Humphries as charged of three counts of aggravated incest. The trial court originally sentenced Defendant to 45 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 10 years at hard labor for Count Two and to 15 years at hard labor for Count Three. The trial court ordered these sentences to run concurrently. After Defendant filed a notice of appeal, the state filed a motion to reconsider sentence. The trial court granted the state’s motion and sentenced Defendant to 45 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 16 years at hard labor for Count Two and to 16 years at hard labor for Count Three. The trial court ordered Counts Two and Three to run concurrently with each other and consecutively with Count One.

Defendant now appeals his conviction as to Count One and claims his sentence is excessive. For the following reasons, we affirm Defendant’s conviction and sentence.

FACTS

On July 7, 2011, the state filed a bill of indictment charging Defendant with three counts of aggravated incest of his stepdaughter, K.W., in violation of La. R.S. 14:78.1. Count One alleges that, between the dates of January 1, 2000, and December 19, 2008, Defendant committed aggravated incest with K.W., a person who is under 13 years of age and who is related to Defendant by being his stepdaughter. Counts Two and Three allege that, between the dates of December 19, 2008, and June 8, 2011, ^Defendant committed aggravated incest with K.W., a person who is under eighteen years of age and who is related to Defendant by being his stepdaughter. On July 13, 2011, Defendant pled not guilty. A jury trial began on July 16, 2012.

K.W., born on December 19, 1995, testified that her mother, M.H., married Defendant when K.W. was five, almost six, years of age, making Defendant her stepfather. K.W. lived with her mother and stepfather and thought of Defendant as her father because she had no contact with her biological father.

K.W. testified:

I was around the age of five and six, and he would make me rub his penis with my hand. He would forcibly make it-make me do that.
He told me that if I told that it would make my mother’s life miserable and he would just hurt me more than what he was actually making me do.

K.W. testified that this would happen two or three times a week. K.W. further testified:

I was around the age of eight to ten and he would make me get naked and bend over so that he could see my vaginal area and he would masturbate.
He would ask me every day, but I wouldn’t do it every day. It would be three or four times a week.

K.W. also testified that, when she was eight or nine years old, Defendant “stuck a spark plug up my butt.... He told me that he was — that he plugged me up so nobody else could have me.” K.W. added that, beginning when she was approximately ten years old, Defendant showed her pornographic movies. K.W. explained that her mother was not home when all of these | (¡actions occurred. K.W. testified that, when she was 12 years old, she told her mother that Defendant had “been touching me in the wrong areas.” K.W. explained that Defendant “found out that I told and he immediately threatened me, that if I didn’t tell her that it was a lie that he would hurt me,” so K.W. recanted and told her mother she had lied.

K.W. further testified that, before the age of 10, Defendant never touched her; but, from the ages of 10 to 15, “he had never penetrated me until I was fifteen. He had fondled with me, but he had never actually penetrated me.” K.W. further testified that, when she was 15 years old, Defendant began asking her to have anal sex with him. K.W. recalled that the first time they had anal sex was on Defendant’s birthday, February 26, 2011. K.W. stated that they had anal sex over 20 times, with the last time being on May 29, 2011. K.W. initially did not tell her mother because Defendant threatened K.W. that, if she told, “he would do something way worse to me than what he was doing.” K.W. eventually did tell her mother, which led to the investigation of Defendant.

Sgt. Jo Caston of the Ouachita Parish Sheriffs Office testified that she works on sex crimes and child abuse cases. She stated that the Sheriffs Office received a complaint involving Defendant on June 8, 2011, and that she was assigned the case the next day. Sgt. Caston had K.W. interviewed at the Children’s Advocacy Center and arranged for her to be examined by Dr. Meade O’Boyle, a pediatrician who focuses on child sexual abuse. On June 14, 2011, Sgt. Caston located Defendant at his place of work and asked | ^Defendant if he would be willing to speak with her. Sgt. Caston testified that she explained the Miranda rights to Defendant and then began asking him about his sexual conduct with K.W. Sgt. Caston testified that Defendant originally denied having sexual contact with K.W. Sgt. Caston explained that she told Defendant a lie that K.W. said they had consensual sex, saying:

I don’t remember my exact words, but I said something to the effect of look, man, [K.W.] told me all about it, and I know it was consensual; she wanted to do it just like you did. And his whole demeanor and countenance changed.... He started smiling and kind of chuckling and laughing a little bit and admitted.

Several minutes into the conversation, Sergeant Caston turned on a tape recorder to record the remainder of their conversation.

In the recorded conversation, Defendant denied that he had touched K.W. from the age of five and denied that he threatened K.W. if she told anyone about their sexual contact. Defendant admitted that he and K.W. had been having sex for two months. He stated that he and K.W. talked about having children and “whether or not we’d make a pretty baby.” Defendant then detailed the first time he and K.W. had anal sex and that they had anal sex again a few weeks later.

Dr. O’Boyle testified that she examined K.W. on June 13, 2011, and stated that she took a history from K.W. in which K.W. described how Defendant engaged in improper sexual actions with her. Dr. O’Boyle 1 ..¡performed a physical examination of K.W. and noted that K.W. “had a normal, intact hymenal ring which means that she had not had sex vaginally.” Dr. O’Boyle further noted:

Examination of her anus showed a large anal tag and there was venous pooling. This is normal. And there was scarring all over her anus. The architecture was very, very distorted from the normal that I usually see.
Normally, the anus has muscles that go around, and they’re all like this. But hers were all distorted in appearance. And she had scarring. And it was — it looked like she had taken trauma to her anus on repeated occasions.

Dr. O’Boyle testified that the condition of KW.’s anus was consistent with that of someone who had been anally penetrated 20 or more times.

On July 18, 2012, the jury unanimously found Defendant guilty as charged of all three counts of aggravated incest. On October 16, 2012, the trial court sentenced Defendant to 45 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 10 years at hard labor for Count Two and to 15 years at hard labor for Count Three, with all three sentences to run concurrently-

On October 19, 2012, Defendant filed a notice of appeal and a motion to reconsider sentence. The trial court denied the motion to reconsider sentence. On October 26, 2012, the state filed a motion for reconsideration of sentence, and the trial court granted the state’s motion. On April 1, 2013, the trial court resentenced Defendant to 45 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 16 years at hard labor for Count Two and to 16 years at hard labor for Count | fiThree. The trial court ordered Counts Two and Three to run concurrently with each other and consecutively with Count One.

On April 11, 2013, Defendant filed a motion to reconsider sentence, which was denied by the trial court on April 12, 2013.

Defendant appeals his conviction as to Count One and his sentence.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of aggravated incest as set forth in Count One. Defendant contends that KW.’s testimony was not credible enough to support a guilty verdict. Defendant does not challenge the convictions on Counts Two and Three.

The standard of appellate review for a sufficiency of the evidence claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992); State v. Smith, 47,983 (La. App.2d Cir.5/15/13), 116 So.3d 884. See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

|7The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022. A reviewing court may not impinge on the fact finder’s discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12. Likewise, the sole testimony of a sexual assault victim is sufficient to support a requisite factual finding. State v. Watson, 32,203 (La.App.2d Cir.8/18/99), 743 So.2d 239, writ denied, 99-3014 (La.3/31/00), 759 So.2d 69. The testimony of one witness is sufficient to prove the elements of an offense even when the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant: State v. Turner, 591 So.2d 391 (La.App. 2d Cir. 1991), writ denied, 597 So.2d 1027 (La.1992).

Thus, in order for Defendant’s conviction to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the | Ressential elements of aggravated incest. La. R.S. 14:78.1 states the elements of aggravated incest:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
C. Consent is not a defense under this Section.

As to Count One, Defendant was specifically charged with committing aggravated incest with a person who is under 13 years of age. La. R.S. 14:78.1(D)(2) provides an enhanced penalty for this charge:

Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

The testimony of K.W. is sufficient to support the conviction of aggravated incest for Count One, which encompasses the time range of January 1, 2000, to December 19, 2008, when she was under 13 years of 19age. K.W.’s testimony established that Defendant is married to KW.’s mother, making Defendant her stepfather, which satisfies the element of aggravated incest in La. R.S. 14:78.1(A) that the offender must be related to the victim as a stepparent.

K.W.’s testimony also demonstrated that Defendant engaged in acts prohibited by La. R.S. 14:78.1(B)(1) and (2), i.e., Defendant “would make me rub his penis with my hand” two or three times a week (when she was 5 and 6 years old), Defendant “would make me get naked and bend over so that he could see my vaginal area and he would masturbate” three or four times a week (when she was ages 8 to 10) and Defendant “stuck a spark plug up my butt.... He told me that he was — that he plugged me up so nobody else could have me” (when she was 8 or 9 years old). K.W. added that, when she was approximately 10 years old, Defendant began showing her pornographic movies. K.W. further testified that, before the age of 10, Defendant never touched her; but, from the ages of 10 to 15, “he had never penetrated me until I was fifteen. He had fondled with me, but he had never actually penetrated me.”

KW.’s testimony was also sufficient to prove the additional elements of La. R.S. 14:78.1(D)(2) that Defendant committed aggravated incest with her when she was under the age of 18 and he was over the age of 17. K.W. testified that she was born on December 19, 1995. As detailed in the preceding paragraph, K.W. testified that Defendant committed acts prohibited by La. R.S. 14:78.1(B) when she was under the age of 13, beginning when she was 5 years of age. KW. further testified that 110Defendant was 36 years of age at the time of trial in July 2012, making him older than 17 years of age when he began committing aggravated incest approximately 11 years earlier. Additionally, on the responsive verdicts form, the jury was specifically asked, “Do you find that any act or acts which form the basis of your verdict occurred while the victim was under the age of 13, and while the defendant was over the age of 17?” The jury answered ‘Tes.”

There was sufficient evidence presented at trial to establish all the essential elements of aggravated incest beyond a reasonable doubt. The testimony of the victim alone was sufficient to convict Defendant. See State v. Watson, supra. It is the role of the trier of fact to determine the credibility of the witness. See, State v. Casey, supra. The jury could have chosen to reject the testimony of K.W. had they not found her to be credible. The unanimous verdict of the jury, however, suggests that they believed and accepted K.W.’s testimony and found her to be a credible witness. The evidence presented at trial was clearly sufficient to sustain the conviction of Defendant as to Count One. Therefore, we find that this assignment of error lacks merit.

Excessive Sentence

In his second assignment of error, Defendant argues that the trial court erred in imposing an unconstitutionally excessive sentence. Defendant contends that the 45-year sentence for Count One is excessive and a violation of ex post facto. Defendant also contends that the trial court erred when ordering that his sentences for Counts Two and Three run ^consecutively with the sentence for Count One. Defendant further argues that the total sentence of '61 years is excessive and constitutes cruel and unusual punishment.

Defendant filed two motions to reconsider sentence — one after he was originally sentenced and another after he was resen-tenced. La. C. Cr. P. art. 881.1(E) states:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

The Louisiana Supreme Court explained in State v. Mims, 619 So.2d 1059 (La.1993):

Under Article 881.1 the defendant must file a motion to reconsider and set forth the “specific grounds” upon which the motion is based in order to raise an objection to the sentence on appeal. However, in order to preserve a claim of constitutional excessiveness, the defendant need not allege any more specific ground than that the sentence is excessive. If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the' defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness. Article 881.1 only precludes the defendant from presenting arguments to the court of appeal which were not presented to the trial court at a point in the proceedings when the trial court was in a position to correct the deficiency.

In both motions, Defendant argued that his sentence was excessive and that the trial court failed to sufficiently weigh the factors of La. C. Cr. P. art. 894.1. Defendant did not raise the issues of consecutive sentences or ex post facto in his motions for reconsideration of sentence. Defendant raised the issue of consecutive sentences during a resentencing hearing. 112The first time Defendant raised the ex post facto issue was on appeal. Therefore, Defendant’s sentence review is limited to the bare claim of excessiveness.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the trial record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 483 So.2d 688 (La.1988). The trial court should consider the defendant’s personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant’s potential for rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981). The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La. App.2d Cir.12/11/02), 833 So.2d 1103, unit denied, 03-0477 (La.5/16/03), 843 So.2d 1130. When the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

The trial court adequately complied with La. C. Cr. P. art 894.1. During the original sentencing hearing on October 16, 2012, the trial court considered a letter written by K.W.; the presentence investigation report; Defendant’s criminal history, social history and work history; information | ^provided by Defendant- during the hearing and letters written on Defendant’s behalf. The trial court also noted that he was the presiding judge during trial and had reviewed the La. C. Cr. P. art. 894.1 factors. The trial court considered Defendant’s criminal history with arrests for driving while intoxicated and criminal damage to property. The trial court considered Defendant’s educational and employment history, noting that Defendant did not finish high school, but received a GED, had welding certificates and took RV technical courses and that he had worked at the same company for the past eight years. The trial court noted that Defendant previously used alcohol, meth and marijuana, but had not used them in the past ten years, which the trial court considered to be a mitigating factor. The trial court also considered that Defendant is respected by his pastor and others.

The trial court also specified what it considered to be aggravating factors. The trial court noted that Defendant admitted to having anal sex with K.W., his stepdaughter who was a minor, and used her as an object for his own sexual gratification. The trial court called Defendant’s acts “perverse,” “depraved” and “volatile.” The trial court also noted that Defendant threatened harm upon K.W., stating that the victim will have “lifelong mental, emo.-tional, psychological scars” and that she cannot be compensated. The trial court determined that Defendant is not a candidate for probation because of an undue risk that he would commit another crime. | T 4After articulating the aggravating and mitigating circumstances considered, the trial court sentenced Defendant to 45 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 10 years at hard labor for Count Two and to 15 years at hard labor for Count Three, with all three sentences to run concurrently.

Defendant filed a motion to reconsider sentence, which was denied by the trial court. The trial court granted the state’s motion to reconsider sentence and ordered a contradictory hearing, which was held on | ^January 22, 2013. At this hear-mg, the state argued that the sentence should be reconsidered because the trial court did not consider all of the subsections of La. C. Cr. P. art. 894.1 and requested that the trial court order the sentences to run consecutively. The state argued that the trial court did not consider Defendant’s request for DNA testing on K.W. and the “emotional trauma” it caused K.W. The state also asserted that the trial court should consider information from KW.’s counselor as to her psychological and physical injuries, including her anal surgery. An evidentiary hearing was held on February 26, 2013. The state provided the trial court with a report from KW.’s counselor and requested that it consider the La. C. Cr. P. art. 894.1 factor of deliberate cruelty to the victim in Defendant’s request for a DNA test. The state also requested that the trial court order the sentences to run consecutively because the concurrent sentences, in effect, caused Defendant not to be punished for the two counts of aggravated incest based on the acts of anal sex that Defendant admitted to performing. Defendant responded with a request that the sentences run concurrently because the sexual acts were a pattern of conduct.

In a written ruling dated March 8, 2013, the trial court stated that it reviewed the following:

Motions and briefs of counsel for the State and the defense, the additional five-page letter from Rachael Peterson, M.S. and Adam Mathews, Ph.D., the Court ordered Pre-Sentence Investigation, the Court’s own personal sentencing notes, the previous sentencing via video tape recording and letters offered by or in support of Mr. Steve Hum-phries and the victim.

The trial court then granted the state’s motion and requested a date for resentenc-ing.

|1fiOn April 1, 2013, a hearing was held for the purpose of resentencing Defendant. The trial court adopted the information previously considered at the original sentencing as to Defendant’s history.

The trial court listed aggravating circumstances it considered. The .trial court stated that Defendant’s suggestion that he might be K.W.’s biological father was deliberately cruel toward the minor victim and caused an emotional outburst by the victim. The trial court considered that Defendant’s crimes were “particularly violent. Rough sex repeatedly.” The trial court reiterated that the victim was a minor who cannot give consent and noted additional information it received in a report from KW.’s counselor regarding “the totality of the possible lifelong effects that the child victim will likely suffer.”

The trial court stated that it reviewed La. C. Cr. P. arts. 883 and 883.1 and noted that imposing consecutive sentences for crimes arising out of a single course of conduct requires particular justification. The trial' court explained that it erred in the initial sentencing of Defendant. The trial court detailed the sexual acts committed by Defendant from the time K.W. was 5 to 15 and stated that the acts in Counts Two and Three

deserve and demand consecutive sentences as they do establish deliberate cruelty, exhibit a callus [sic] and perverse disregard for a child who he molested from age five to fifteen.... And they involve the physical taking of sexual intercourse anally from a child who refused such advances and who was requested to be left alone. Counts two and three involve threats of physical harm.

The trial court also noted Defendant’s lack of remorse during the proceedings. The trial court found that the acts of anal sex

117are clearly distinguishable and different and separate from the previous sexual acts by the defendant. They were done by force and by theft — by a threat of harm, not theft, but a threat of harm and injury. They are not just one continuous and ongoing crime.

For these detailed reasons, the trial court resentenced Defendant to 45 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 16 years at hard labor for Count Two and to 16 years at hard labor for Count Three, ordering Counts Two and Three to run concurrently with each other and consecutively with Count One.

As to the first prong of the excessive-sentence test, this court finds that the trial court adequately complied with La. C. Cr. P. art. 894.1 when sentencing Defendant. At both sentencing hearings, . the trial court noted in great detail the aggravating and mitigating circumstances it considered.

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (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. Id. A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

| ^Defendant argues that the 45-year sentence imposed by the trial court as to Count One is excessive because the trial court sentenced Defendant using an amended version of La. R.S. 14:78.1 that was not in effect for part of the time range alleged in Count One. Although this claim was not raised in a motion to reconsider sentence and was raised for the first time on appeal, it is a necessary consideration in the excessive-sentence analysis to determine if the trial court imposed a sentence within the statutory limits.

Count One encompasses the years before K.W. turned 13 years of age, i.e., January 1, 2000, to December 19, 2008. Prior to August 15, 2006, La. R.S. 14:78.1(D) set forth the following penalty for all convictions of aggravated incest:

A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more, than twenty years, or both.

In 2006, La. R.S. 14:78.1(D) was amended to add an enhanced penalty:

(2) Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:78.1(D)(2) was amended in 2008 to state:

(2) Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

119The trial court sentenced Defendant as to Count One under the 2008 version of La. R.S. 14:78.1(D)(2), explaining to Defendant that the sentence range was 25 to 99 years.

Defendant contends that, although the jury convicted him of committing aggravated incest between the dates of January 1, 2000, and December 19, 2008, it is unclear whether the jury found that the state proved beyond a reasonable doubt that aggravated incest occurred after the effective date of the 2006 amendment of La. R.S. 14:78.1, i.e., August 15, 2006. Defendant argues that, because of this uncertainty, the trial court should have, sentenced Defendant pursuant to the 1993 version of La. R.S. 14:78.1, which was in effect prior to the 2006 amendment.

This court addressed a similar issue in State v. Simpkins, 44,197 (La.App.2d Cir.5/13/09), 12 So.3d 1021. The defendant in Simpkins was charged with, among other crimes, molestation of a juvenile. The evidence presented at trial demonstrated that the defendant first molested the victim in August 2005, that the defendant had no contact with the victim from 2005 to 2006, that the victim turned 13 in January 2007 and that the defendant raped the victim six or seven times before February 2007. The jury convicted the defendant of molestation of a juvenile, and the trial court sentenced him to ten years at hard labor. The molestation of a juvenile statute, La. R.S. 14:82.2, was amended in 2006 in the same act as the aggravated incest statute, La. R.S. 14:78.1, to add an enhanced penalty for when the victim is under the age of 13 and the offender is over the age of 17. On appeal, this court determined that the trial court should have |2nsentenced the defendant pursuant to the enhanced penalty of the 2006 version of La. R.S. 14:82.2. This court explained that the defendant was exposed to the enhanced penalty from the effective date of August 15, 2006, until January 13, 2007, when the victim turned 13 years old. After examining the time line of events presented at trial, this court determined that “it defies all logic that this repulsive pattern of lewd and lascivious conduct towards [the victim] would occur before and after this five-month window, but abruptly cease, cold turkey, during this window” between the effective date and the victim’s 13th birthday. This court vacated the sentence as illegally lenient and remanded to the trial court for resentencing pursuant to the 2006 enhanced penalty. On remand, the trial court sentenced the defendant to life imprisonment at hard labor. The defendant filed an application for post-conviction relief arguing that the sentence was illegal because the court of appeal made a factual assumption that molestation must have occurred during the five-month period. The trial court denied the application, and the defendant filed an application for a writ of certiorari. In State ex rel. Simpkins v. State, 12-1599 (La. 12/14/12), 102 So.3d 776, the Louisiana Supreme Court granted the writ in part and held that the sentence was illegal. The court reasoned that no evidence was introduced at trial that any act of molestation occurred during the five-month window between the effective date of August 15, 2006, and the victim’s 13th birthday on January 13, 2007, and that the appellate court assumed that acts must have occurred during this window. The court vacated the life sentence and reinstated the ten-year sentence.

|21The case sub judice is distinguishable from Simpkins, supra. In Simpkins, the evidence presented at trial demonstrated that the molestation of the victim by the defendant ceased for approximately a year, including the time between the effective date of the 2006 amendment to La. R.S. 14:82.2 and the victim’s 13th birthday. In the instant case, the victim testified that the acts of aggravated incest by Defendant never ceased during a ten-year period beginning in 2001 when she was 5 years old:

• K.W. was born on December 19, 1995.
• K.W.’s mother, M.H., married Defendant when K.W. was 5, almost 6, which would have been during the fall of 2001.
• When K.W. was 5 and 6 years of age (December 19, 2000 — December 19, 2002), Defendant “would make [K.W.] rub his penis with [her] hand” two to three times a week.
• When K.W. was 8 or 9 years of age (December 19, 2003 — December 19, 2005), Defendant “stuck a spark plug up her butt.”
• When K.W. was 8 to 10 years of age (December 19, 2008 — December 19, 2006), Defendant “made [her] get naked and bend over so that he could see [her] vaginal area and he would masturbate” three or four times a week.
• When K.W. was approximately 10 years old (December 19, 2005 — December 19, 2006), Defendant began making her watch pornographic movies.
• On August 15, 2006, La. R.S. 14:78.1(D)(2) became effective, which added an enhanced penalty to the aggravated incest statute for when the victim is under the age of 13 and the offender is over the age of 17.
• When K.W. was 10 to 12 years of age (December 19, 2005-December 19, 2008), Defendant touched her and fondled her.
• When K.W. was 12 (December 19, 2007 — December 19, 2008), she told her mother that Defendant had been touching her but then recanted after Defendant threatened her.
|¾>* On August 15, 2008, La. R.S. 14:78.1(D)(2) was amended to change the maximum penalty from life in prison to 99 years.
• K.W. turned 13 on December 19, 2008.
• When K.W. was 13 to 15 years of age (December 19, 2008 — December 19, 2011), Defendant continued to touch and fondle her.
• On February 26, 2011, Defendant first forced K.W. to have anal sex with him. Defendant forced K.W. to have anal sex with him approximately 20 times, with the final time being on May 29, 2011.

As demonstrated in this time line, acts of incest occurred multiple times a week beginning when K.W. was 5 years old and escalated to forced anal sex when K.W. turned 15 years old. KW.’s testimony detailed a continuous pattern of conduct that never ceased. Considerable evidence was presented at trial of acts of incest performed between the effective date of the 2006 amendment and KW.’s 13th birthday. During this time period, K.W. testified that Defendant made her pose naked while he masturbated, made her watch pornography and touched and- fondled her. K.W. also testified that, when she was 12 years old, she told her mother that Defendant had been touching her inappropriately, but that she recanted her story after Defendant threatened her. Unlike in Simpkins, there is no need for this court in this case to assume facts — the evidence presented at trial clearly supports that acts of aggravated incest occurred between the effective date of the 2006 amendment and KW.’s 13th birthday.

This case is further distinguishable from. Simpkins, supra, because, in Simpkins, the defendant’s exposure to the enhanced penalty was approximately five months. In the instant case, Defendant was exposed to the enhanced penalty from the effective date of August 15, 2006, until | ^December 19, 2008, when K.W. turned 13 years old — over two years and four months of exposure.

Therefore, this court finds that the trial court did not err when sentencing Defendant pursuant to the enhanced penalty of La. R.S. 14:78.1(D)(2). Considerable evidence was presented at trial that Defendant committed aggravated incest for over two years between the effective date of the enhanced provision and the victim’s 13th birthday. The sentence is within the statutory limits.

Based on the law and the facts of the case, we conclude that the trial court did not abuse its wide discretion in sentencing Defendant to a total sentence of 61 years at hard labor. The 45-yeár sentence as to Count One is toward the lower end of the sentencing range of 25 to 99 years in La. R.S. 14:78.1(D)(2). Considering the weekly acts of aggravated incest that began when the victim was five years old and continued, as encompassed in Count One, until she turned 13, a 45-year sentence is not excessive. Such a sentence is not grossly out of proportion to the severity of the crime and does not shock the sense of justice. Similarly, the 16-year sentences for Counts Two and Three, which encompass the acts of forced anal sex that Defendant admitted to, are not excessive and are within La. R.S. 14:78.1(D)(l)’s sentencing range of 5 to 20 years with or without hard labor with a fine not to exceed $50,000. The concurrent 16-year sentences are not l^out of proportion to the severity of the crime and do not shock the sense of justice.

Furthermore, the total sentence of 61 years at hard labor is not excessive. When a defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. This court, in State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898, writ denied, 07-0058 (La.11/2/07), 966 So.2d 591, sets forth the law as to consecutive and concurrent sentences and states:

Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently.
A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms.
Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for defendant’s rehabilitation, and whether defendant has received a benefit from a plea bargain.
... [T]he failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences.

(Internal citations omitted.)

During the resentencing hearing, the trial court specifically noted that particular justification was required for imposing consecutive sentences forj^crimes arising out of a single course of conduct. As discussed, supra, the trial court thoroughly detailed the aggravating and mitigating factors it considered when deciding on Defendant’s sentence. The trial court emphasized how the sexual acts performed by Defendant escalated after K.W. turned 15 to include forced anal sex. It determined that the acts performed in Count One and the acts performed in Counts Two and Three were distinguishable and not an ongoing crime. Based upon this reasoning, the trial court ordered that Counts Two and Three run concurrently with each other and consecutively with Count One. The trial court properly provided particular justification and clearly stated the factors it considered in imposing this sentence. We find, therefore, that the trial court did not err in ordering consecutive sentences and that the total sentence of 61 years at hard labor is not excessive.

As to the second prong of the excessive-sentence test, this court finds that the sentence is not constitutionally excessive. Therefore, this assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

      . To protect the privacy of the victim and her mother, the victim will be referred to by her initials, K.W., and her mother by her initials, M.H., pursuant to La. R.S. 46:1844(W).

      . Defendant's birthday is February 26, 1976.

      . Prior to trial, a free and voluntary hearing was held, and the trial court determined that Defendant’s statements to law enforcement were made freely and voluntarily, without any inducements, threats or coercion.

      . These two admissions form the basis for Counts Two and Three.

      . Prior to the 2004 amendment of La. R.S. 14:78.1, "aggravated sexual battery” was listed as a prohibited act under Section B. The 2004 amendment changed this term to "second degree sexual battery.” 2004 La. Sess. Law Serv. 676 (West).

      . During this hearing, Defendant told the trial court that he believed there was a possibility that K.W. is his biological daughter and requested a DNA test. The trial court explained to Defendant that it could not order a DNA test.

      . La. C. Cr. P. art. 881.1(B) states, in pertinent part, that: "The motion ... shall set forth the specific grounds on which the motion is based." Specifically, the state argued that the trial court did not consider:
      A. The offender’s conduct during the commission of the offense manifested deliberate cruelty to the victim.
      B. The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth.
      C. The offender used his position or status to facilitate the commission of the offense, as the defendant was a step-parent.
      D. The offense resulted in a significant permanent injury to the victim, psychological and physical.
      E. The offense involved multiple incidents over years for which the defendant received no actual punishment. The State shows that the Court ran a 10 year and 15 year sentence on counts 2 and 3, concurrent with each other and concurrent with count 1 which involved separate conduct over many years prior to the child reaching the age of 13. In essence, this Court imposed no sentences whatsoever on the defendant that he would actually serve in relation to counts 2 and 3.
      F.Any other relevant aggravating circumstances which includes the defendant’s outrageous behavior on date of sentencing when he tried to convince this Court that he should have DNA testing to prove he was the biological father of the child. The defendant’s outrageous conduct caused additional harm to the minor child as the Court witnessed in open court. The minor victim was aghast at the new claims by the defendant.

      . The trial court had jurisdiction to reconsider Defendant’s sentence pursuant to La. C. Cr. P. art. 916, which states, in part, that:
      The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:

      (3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
      La. C. Cr. P. art. 881.1(D) states, in part, that "The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing.”

      . As discussed, supra, La. R.S. 14:78.1(D)(2) was added in 2006 to include an enhanced penalty with a sentencing range of 25 years to life imprisonment at hard labor. The statute was amended in 2008 to change the sentencing range to 25 to 99 years at hard labor. The trial court in this case sentenced Defendant pursuant to the 2008 statute, stating at the sentencing hearing that the sentencing range was 25 to 99 years. Although it is questionable whether the 2006 or 2008 statute should have been applied, this consideration is irrelevant because Defendant was not sentenced to the statutory maximum sentence.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Richard L. COLEMAN, Appellant.
    No. 48,258-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Richard L. Coleman, Pro Se.
    Paula Corley Marx, Douglas Lee Har-ville, Louisiana Appellate Project, for Appellant.
    John McIntosh Lancaster, District Attorney, Johnny R. Boothe, Penny Wise Douciere, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant, Richard L. Coleman, pled guilty to distribution of cocaine with an agreed-upon sentencing cap of seven years at hard labor. Coleman was subsequently sentenced to serve seven years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. Coleman now appeals. His appellate counsel filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivo-lous issues upon which to base an appeal. For the reasons stated herein, the motion to withdraw is granted, and Coleman’s conviction and sentence are affirmed.

Facts

On March 23, 2011, Coleman was charged by bill of information with distribution of cocaine, in violation of La. R.S. 40:967. Pursuant to a plea agreement, Coleman subsequently appeared before the trial court and pled guilty as charged. Under the plea agreement, the parties agreed that Coleman would be sentenced by the trial court after a presentence investigation report (“PSI”), subject to a sentencing cap of seven years at hard labor. During the guilty plea colloquy, Coleman admitted to facts in support of his guilty plea, noting that on December 16, 2010, a man approached him and gave him $20.00. Coleman explained that he then went into “one of the dope houses,” bought cocaine, and took the cocaine back to the man. The man gave him some of the cocaine and an additional $20.00 so that Coleman could buy soap and washing powder. Coleman was | ¡¡arrested and charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967.

At his guilty plea, Coleman was advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Once the defendant waived his rights, the trial court accepted his guilty plea and ordered a PSI. Subsequently, after reviewing the PSI, the trial court sentenced Coleman, as agreed, to serve seven years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence.

Coleman filed a pro se motion for appeal, which the trial court granted. Coleman’s trial attorney filed a motion to be relieved as counsel of record, and subsequently this court granted the motion and ordered the trial court to determine whether Coleman was indigent and therefore entitled to the appointment of appellate counsel. Following a hearing, the Louisiana Appellate Project was appointed to represent Coleman on appeal.

Coleman’s appellate counsel filed an An-ders brief, seeking to withdraw, alleging that no nonfrivolous issues existed to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242; State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history and facts of the case and the agreement under which Coleman’s guilty plea was entered. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra at 242. Defense counsel further verified mailing copies of the motion to withdraw and his brief to Coleman, in accordance with An-ders, Jyles, Mouton, and Benjamin, supra. In addition, the State filed a brief in this matter agreeing that no nonfrivolous issues exist to raise on appeal.

On June 12, 2013, this court issued an order holding the motion to withdraw in abeyance, rescinding the pro se briefing deadline, and notifying Coleman that he could file a brief in this appeal within 30 days of the date of the order and file a request to view the appellate record within 10 days of the date of the order. Coleman was further advised that if no brief was timely filed, the appellate record would be reviewed only for error patent. Coleman informed this Court by letter of his intent to file a supplemental brief, and a copy of the appellate record was sent to the records custodian of the Franklin Parish Detention Center, where Coleman is being held. Nonetheless, Coleman has failed to file a supplemental brief in his appeal within the allocated time period in which to do so.

Discussion

As stated, Coleman’s appellate counsel has filed an Anders brief, which alleges no nonfrivolous issues to raise on appeal and seeks the withdrawal of counsel. See Anders; Jyles; Benjamin, supra. The brief outlines the procedural history and facts of the case set forth by the State. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra at 242. The State filed a letter with this Court agreeing that there are no non-frivolous issues to raise on appeal. Appellate |4counsel has verified the mailing of copies of his notice to withdraw and brief to the defendant in accordance with An-ders, Jyles, and Benjamin, supra.

Louisiana C. Cr. P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek 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. Pee, 47,261 (La.App.2d Cir.09/26/12), 107 So.3d 69. Here, the transcript of the guilty plea hearing clearly reflects that Coleman agreed to the sentence. He was advised of his Boykin rights and knowingly and voluntarily pled guilty to distribution of cocaine. In accepting the terms of his plea agreement and ultimately pleading guilty, Coleman cannot now seek review of his sentence. The appellate counsel has shown that Coleman cannot appeal the sentence imposed and that no nonfrivolous errors can be found after a conscientious review of the record. We agree that this matter has no nonfrivolous issues to raise on appeal. Further, we have examined the record for error patent and found none. Thus, for the foregoing reasons, the motion to withdraw by appeal counsel is granted, and Richard L. Coleman’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Richard D. DICKSON, Appellant.
    No. 48,361-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Louisiana Appellate Project by Katherine M. Franks, for Appellant.
    Jerry L. Jones, District Attorney, R. Nicolas Anderson, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and GARRETT, JJ.
   WILLIAMS, J.

11 The defendant, Richard D. Dickson, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64, and jumping bail, a violation of LSA-R.S. 14:110.1. He pled guilty to the lesser included offense of aggravated burglary, in violation of LSA-R.S. 14:60. In exchange, the state agreed to dismiss the jumping bail charge, as well as other unrelated charges (two counts of second degree battery, in violation of LSA-R.S. 14:34.1; and simple criminal damage to property, a violation of LSA-R.S. 14:56). The defendant was sentenced to serve 15 years in prison at hard labor. For the following reasons, we affirm.

FACTS

On June 17, 2008, the Ouachita Parish Sheriffs Office responded to a call that an armed robbery had been committed at a residence on Stubbs Vinson Road in Monroe, Louisiana. The victim, David Glover, told the deputies that a black male had knocked on his door at approximately 11:00 p.m. When he opened the door, the man pointed a gun at his head, forced his way inside and ordered him to get on the floor. Several other men entered and began ransacking the house. The men smashed Glover’s gun case and stole numerous guns. They also stole other items, including jewelry, a television, a laptop computer, video games and various small electronic items. They fled in Glover’s Ford F-350 pickup truck.

Police officers arrived on the scene and discovered a television, later identified as belonging to Glover, lying in the middle of the roadway, a short distance from Glover’s house. While processing the television, an officer observed a white Dodge Neon, occupied by at least four black males, |2passing the scene; all of the occupants avoided looking in the officer’s direction. The vehicle was later found abandoned in a nearby subdivision; the crime unit found a laptop computer, two DVD players and multiple guns that had been stolen from Glover’s residence inside the vehicle. Also found inside the vehicle was a traffic citation that had been issued to the defendant. Glover’s pickup truck was found abandoned near a wooded area with many of the items from the robbery still inside.

Thereafter, the officers discovered that the Dodge Neon was owned by Krystal Crowe, the defendant’s girlfriend. The officers located Crowe at her apartment attempting to report her vehicle stolen. However, Crowe later admitted to police officers that the defendant had instructed her to report the vehicle stolen and she complied because she was afraid of him. Crowe informed the officers that the defendant was driving her car on the night of the armed robbery.

On September 6, 2008, Sterling Singleton was charged with the March 18, 2008 armed robbery of Glover’s son. Singleton told the investigating officers that he, Kenneth Galloway, Titus Gibson and Xavier John-Lewis had robbed Glover’s son. According to Singleton, they told the defendant about the prior robbery and they all thought that Glover’s house would be “a perfect target.” The group formulated a plan to commit the armed robbery of Glover in the instant matter. Singleton also stated that the group drove to Glover’s house in the defendant’s car, and the defendant told |sthem to “go to the door and tell the victim that he was returning a video game that he had borrowed from his son.” According to Singleton, he initially approached the door, but no one answered. At that point, he wanted to leave; however, the defendant told the group that they were going to “stay there until someone came home.” Subsequently, the defendant approached the door and “rang the doorbell three times and on the third ring a light came on in the house.” Singleton further stated that when Glover opened the door, the defendant “grabbed him and forced him onto the wall.”

A warrant for the defendant’s arrest was issued on January 12, 2009; however, the defendant eluded capture until May 4, 2010, when he was discovered in Ouachita Parish on a Greyhound bus en route to New York.

Subsequently, the defendant was charged by bill of information with the armed robbery of David Glover; the bill was later amended to include a charge of jumping bail in an unrelated matter. On October 25, 2011, the defendant pled guilty to aggravated burglary.

A sentencing hearing was held on April 5, 2012, during which Glover, the defendant and the defendant’s mother testified. Glover testified that he had built his home for his retirement; however, he was forced to move because he did not feel safe anymore. He also testified that he no longer felt safe leaving his wife home alone at night while he worked; therefore, he suffered a significant loss of income.

The defendant’s mother, Cassandra Shelling, also testified. She presented seven letters from family members and friends asking for |4leniency. Ms.. Shelling stated that the defendant was diagnosed and treated for Attention Deficit Hyperactivity Disorder (“ADHD”) since he was in third grade. She testified that he was placed on .Ritalin, and later Concerta, and was classified as a “504 student” in the school system. Ms. Shelling also testified that she was terminated from her position as a teacher after she challenged the school for failing to implement the defendant’s student plan; her firing and subsequent tenure hearing was highly publicized. She stated that the defendant’s conduct began to change because he felt that her termination was his fault. She further testified that the defendant’s girlfriend (Crowe) became pregnant when he was 15 years old; over the next few years, the defendant and Crowe had three sons. Ms. Shelling stated that the defendant’s problems were the result of his impulsiveness and hyperactivity. She also testified that much of the defendant’s rebellious conduct was a result of being teased by his peers for being on medication and for being classified as a 504 student. Further, she stated that one form of rebellion employed by the defendant was the refusal to take his medication. Ms. Shelling admitted that the defendant had a juvenile criminal record and had been housed at a juvenile detention center. However, she stated, “[H]is juvenile record was mostly just being an incorrigible youth with me[.]” She explained that the defendant would disobey her rules with regard to his curfew, not having other children at the house when she was not home and “hanging with the wrong group.” 1 ¿Additionally, Ms. Shelling expressed her belief that the defendant should receive a lenient sentence because the defendant has changed since his incarceration, has “owned up to” his role in the robbery and has expressed remorse. She described the defendant as a “brilliant kid” who had maintained a 3.8 grade-point average. She stated that he had “just been on the wrong track[.]”

The defendant also testified at the hearing. He stated that he would take back the “wrong choices” he had made if he could. However, the defendant denied actually robbing Glover. He testified, “[T]hey called me after the fact and that’s when I came[.]” The defendant also stated:

I don’t know what I was thinking. Greed. I was thinking about money. It wasn’t about noting [sic] but just money, you know. It’s just a struggle. I was— my family was struggling. I was struggling and it was just—
⅜ * *
Money wasn’t right. Children needed Pampers, food, you know, the rent, everything else. You know, it took a toll on me and I didn’t see no other way. Drugs, I’m not selling drugs. I don’t know.

With regard to his juvenile record, the defendant expressed love for his mother, but stated that his mother was unable to raise him because she “didn’t know the steps in life to go on about raising a man.” He also testified that he felt that he had little in common with his mother and sisters because he was the only male in the house. The defendant also testified that he received counseling while he lived in Massachusetts, and that he had been prescribed medication for his ADHD; however, he never had the prescription filled. He testified that he had not taken any medication in “years.”

|f)On cross-examination, the defendant denied being in Glover’s house and denied participating in the robbery. He stated that he knew one of the men who committed the robbery and that he agreed to pick the others up and take them to sell the stolen items. The defendant stated that he did not know the men had committed a robbery; he “just know they stole a whole bunch of stuff.” He stated that the other participants in the robbery lied when they told police that he “masterminded” the robbery. He also stated that he left the state after that night and did not discover that a warrant had been issued for his arrest “until like the middle of 2009.”

The trial court did not sentence the defendant at the conclusion of the April sentencing hearing. Rather, the court conducted another sentencing hearing on July 11, 2012. At that time, the court noted that during the original sentencing hearing, the defendant denied participating in the robbery. Therefore, the court ordered that the other robbery participants — Galloway, Gibson, John-Lewis and Singleton— be brought before the court to testify with regard to the defendant’s involvement in the crime.

Galloway testified that he, John-Lewis, Singleton and Gibson committed the robbery, and the defendant arrived in the car to drive them away. Galloway stated that they left Glover’s truck in the woods and did not have any of the stolen items with them when the defendant arrived.

John-Lewis corroborated Galloway’s testimony that he, Galloway, Gibson and Singleton committed the robbery. However, he testified that the |7defendant was not involved in the plan to commit the robbery. According to John-Lewis, after the robbery, Gibson called the defendant to transport the stolen items. The defendant arrived at the residence of John-Lewis’ aunt and the men loaded the items into the trunk of the defendant’s car. He testified that he could not recall whose idea it was to rob Glover. After the court advised John-Lewis that he could face an additional 10 years in prison for committing perjury, John-Lewis testified that he could not recall his testimony at his guilty plea hearing. However, he stated that if his previous testimony was any different from his current testimony, then his previous testimony was a lie.

Singleton testified that he, Galloway, Gibson and John-Lewis committed the robbery. He stated that he had seen the defendant before, but he did not know him. Singleton testified that the defendant became involved after the robbery had been committed. He stated that “one of the other guys” telephoned the defendant, who met them at a different location (he was unable to recall the exact location). Singleton also stated that he could not recall telling police officers that the defendant was involved in the robbery-. When questioned by the trial court about his statement to the police officers, Singleton replied that he could not recall what he told the officers. He maintained his testimony that the defendant was not with him and the others when they robbed Glover. The trial court advised Singleton of the penalty for perjury, and the prosecutor read into the record Singleton’s entire statement to police officers. Nevertheless, Singleton stated that he did not recall his statements to the officers. After answering |sother questions, Singleton refused to answer further, stating, “[I]f it’s okay with you, I wouldn’t — I would like to go back to the jail[.]”

Gibson testified that he, the defendant, Galloway, John-Lewis and Singleton were all involved in the robbery. He stated that all five of them went to Glover’s home and robbed him. The remainder of Gibson’s testimony was conflicting and incoherent. Gibson became belligerent and went on a tirade. He directed profanity towards the judge and the attorneys. He was held in contempt and removed from the courtroom.

At the conclusion of the hearing,, the court sentenced the defendant to serve 15 years in prison at hard labor. The court denied the defendant’s motion to reconsider sentence.

The defendant appeals his sentence.

DISCUSSION

The defendant contends the sentence imposed is excessive in light of his degree of involvement in the robbery. He argues that he was merely an accessory to the robbery and his only involvement included serving- as the driver and assisting the actual robbers in pawning the stolen goods. He also argues that he was 20 years old when the robbery was committed and that the court failed to consider the fact that he has suffered from ADHD since childhood.

At the time this crime was committed, LSA-R.S. 14:60 provided:

1 ¡¡Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; thus, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,-515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La.3/9/12), 84 So.3d 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in LSA-C.Cr.P. art. 894.1, and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. Where the defendant’s motion to reconsider sentence alleges mere excessiveness of sentence, the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,-321 (La.App.2d Cir.9/21/11), 72 So.3d 952.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

A review of the factors set forth in LSA-C.Cr.P. art. 894.1 does not require a listing of every aggravating or mitigating circumstance; the trial court must only articulate a factual basis for the sentence. State v. Cunningham, 46,664 (La.App.2d Cir.11/2/11), 77 So.3d 477. Although the defendant’s personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, the trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App.2d Cir.9/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App.2d Cir.9/21/11), 74 So.3d 248, writ denied, 2011-2348 (La.4/27/12), 86 So.3d 625. All convictions, criminal activity and other evidence normally excluded from the trial may be considered. State v. Platt, 43,708 (La.App.2d Cir.12/3/08), 998 So.2d 864, writ denied, 2009-0265 (La.11/6/09), 21 So.3d 305. A defendant’s degree of remorse is also a proper sentencing In consideration. State v. Birch, 43,119 (La.App.2d Cir.3/19/08), 979 So.2d 643; State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868; State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, 237, writ denied, 98-1199 (La.9/25/99), 724 So.2d 775.

In selecting an appropriate sentence, a sentencing court is not limited to considering only a defendant’s prior convictions, but it may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272; The sources of information- relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay, arrests and conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App.2d Cir.8/13/08), 989 So.2d 864.

Absent a defendant’s assertion that he was falsely or mistakenly charged with an offense, the sentencing court may consider a dismissed charge as part of the defendant’s criminal history, even when the dismissal forms a part of the plea agreement. State v. Pamilton, supra, citing State v. Cook, 466 So.2d 40 (La.App. 2d Cir.1985); State v. Daley, 459 So.2d 66 (La.App. 2d Cir.1984), writ denied, 462 So.2d 1264 (La.1985).

haIn the instant case, over the defendant’s objection, the trial court read most of the PSI report into the record, including the defendant’s juvenile criminal history. The defendant’s adult criminal history was as follows:

July 2005 — the defendant was arrested and charged with driving without a driver’s license, no insurance, driving without lights, improper license tags and failure to register a vehicle. The charges were later dropped.
September 2005 — the defendant was arrested for unauthorized use of a movable and no driver’s license. These charges were also dropped.
October 2005 — the defendant was charged with damage to property and aggravated assault with a weapon after his sister called police and reported that he had attempted to force her off the telephone by holding a large knife to her neck; she also reported that the defendant had destroyed a' cordless phone. The defendant’s mother reported that he was a danger to her and the other children in the home and asked that charges be brought against him. The charges were later dropped.
February 2006 — the defendant was charged with simple battery of a police officer, resisting an officer and criminal mischief. Police were called to a local high school; the principal reported that he suspected several students of possessing marijuana. The defendant, who smelled of marijuana, refused the police officer’s directive to hand over a forbidden radio; the defendant then “bumped” the officer in the chest. The charges were later dismissed.
April 2006 — the defendant was charged with simple battery; no disposition could be found on this- charge.
May 2006 — the defendant was charged with illegal use of weapons and dangerous instrumentalities after witnesses identified him as the assailant who shot Kenneth Smith in the leg as Smith stood with friends at a bus stop. The defendant admitted that he shot at a group of boys who had been “talking noise” to him. The defendant pled guilty to aggravated battery and was sentenced to serve 18 months in jail and to pay a $1,000 fíne, plus court costs.
| i3August 2007 — the defendant was charged with simple criminal damage to property and second degree battery after his girlfriend, who was 10 weeks pregnant, reported that he had kicked her and punched her in the eye.

The trial court also reviewed the defendant’s personal and educational history. The defendant is the father of four children (three with Crowe and another with a woman in Massachusetts). The defendant dropped out of high school in the 10th grade allegedly because he experienced difficulty concentrating. The court also noted that the defendant admitted that he had been suspended from school numerous times for fighting and other issues. Between the ages of 12 and 17, he lived either with his mother, or at a detention center when he became ungovernable. The defendant admitted that he began smoking marijuana at the age of 12. The defendant’s employment history included working at local markets and in his grandmother’s daycare center. When he was 19 years old, the defendant moved to Massachusetts to live with his paternal grandmother and to get to know his father. The defendant stated that he and his father did various things together, including lifting weights, partying and smoking marijuana. While in Massachusetts, the defendant worked at a furniture store and did landscaping. The defendant returned to Louisiana in April 2010 and was arrested on the instant charges.

At the sentencing hearing, the defendant disputed some of the criminal history contained in the PSI report. He denied that he had pulled a knife on his sister and that he had shot Kenneth Smith. Further, the defendant denied the notation that he and his father smoked marijuana together. According to the defendant, his father does not smoke marijuana; |uhe smokes crack cocaine. Additionally, the defendant denied hitting his girlfriend; he admitted that he “put his hands on her,” but he did not hit her.

The trial court also read the factual basis for the defendant’s guilty plea into the record and a statement from the defendant, in which he apologized for his actions and stated that he wanted to go to college. Additionally, the court read the victim’s statement, in which he stated that he believed the defendant should receive the maximum sentence.

The trial court noted the defendant had benefitted substantially by the state’s agreement to allow him to plead to a lesser charge and by the state’s agreement to forego the filing of a multiple offender bill against him. Noting the guidelines set forth in Art. 894.1, the court stated that the defendant committed a crime of violence, had used a firearm and had created a risk of death to the victim. The court found that the defendant will likely repeat his criminal activity. Further, the court noted the defendant’s continuous refusal to take his medication.

Thereafter, the court took note of the defendant’s criminal history; his PSI indicated that the defendant had been on a continuous path of violence and destruction, without showing regard for others. With only one exception, the defendant received only probation as a consequence of his prior crimes. The court further noted the defendant’s claim that if granted probation, he would begin taking his medication, seek further education and make a positive change in his life. The court stated that years of leniency by dismissing charges and granting him probation had done nothing to sway the defendant from a life of crime and violence.

11sThe court also found that although imprisonment may be a financial hardship, the defendant does not pay child support for any of his four children. The court found that there is an undue risk that the defendant would commit another crime, that the defendant is in need of correctional treatment and that any lesser sentence would deprecate the seriousness of the offense.

The court next considered the defendant’s denial that he was present and involved in the robbery, in light of the statements and testimony of the others who were involved. The judge expressly stated that he believed the statements the men made to police, in which they informed the officers that the defendant was involved in the robbery and that he was the “mastermind” of the crime. The judge made it clear that he did not believe the co-perpetrators’ testimony at the sentencing hearing. The court again noted the psychological and economic impact the robbery had on the victim and his family.

As stated above, the sentencing range for aggravated burglary is one to 30 years. The sentence imposed, 15 years, is well within this range. The trial court reviewed the guidelines set forth in LSA-C.Cr.P. art. 894.1, and noted the defendant’s personal and educational background, limited work history and extensive criminal history.

As the trial court noted, the sentencing exposure for armed robbery was a maximum of 99 years without benefits; therefore, the defendant received a substantial benefit by pleading guilty to the reduced charge of 11f,aggravated battery, for which he faced a maximum of 30 years in prison. The imposed sentence of . 15 years is only half the maximum allowed.

The defendant and his cohorts invaded the victim’s home at night and held him at gunpoint while they stole his possessions and his truck. Although some of the possessions were recovered, the trauma of the event has driven the victim and his family from their retirement home, caused significant changes in their finances, and left the victim fearful of another attack. In light of the damage the defendant created by his offense, the substantial benefit he received in pleading guilty, and his extensive criminal history, the sentence imposed is not so grossly disproportionate to the severity of the crime that it shocks the sense of justice, nor does this sentence appear to be the needless infliction of pain and suffering. Thus, we find no abuse of the trial court’s discretion. Consequently, the defendant’s sentence is not constitutionally excessive.

CONCLUSION

For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Glover testified that all of his possessions were recovered with the exception of a 9 mm Smith & Wesson handgun.

      . The co-perpetrators, Galloway, Gibson and John-Lewis are cousins.

      . Some time after the robbery, the defendant left town and had been living with his paternal grandmother in Springfield, Massachusetts.

      .Section 504 is a section of the Rehabilitation Act of 1973, which prohibits discrimination against individuals with physical or mental disabilities who attend public or private schools funded with public dollars.

      . The four co-participants pled guilty to attempted armed robbery and were sentenced to 15 years in prison in exchange for their agreement to testify against the defendant.

      . Gibson was unable to recall details about the night of the robbery. At some point, he stated, "[I]t’s been twelve years already since I got sentenced, so I mean it's been October of 2009. I know I did twelve years, so it's got to be 2021. If today is 2012 then that mean[s] I got locked up in 2000.”