author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Dameion A. GREENBERRY.
    No. 2014-KA-0076.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2014.

      Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| defendant, Dameion A. Greenberry, pleaded guilty to possession of cocaine pursuant to State v. Crosby He now appeals the trial court’s denial of his motion to suppress. For the reasons that follow, we vacate defendant’s guilty plea and sentence and remand this matter to the trial court for further proceedings.

PROCEDURAL BACKGROUND

After being charged by bill of information with possession of cocaine, a violation of La. R.S.40:967 C, defendant, Dameion Greenberry, pleaded not guilty. Mr. Greenberry filed a motion to suppress which was considered at the preliminary hearing, held on October 27, 2011. At the conclusion of the hearing, the trial court found probable cause and denied the motion to suppress. Mr. Greenberry filed an application for supervisory review with this Court which was denied on January 24, 2012, on the basis that, if convicted, Mr. Greenberry would have an adequate remedy on appeal. State v. Greenberry, 11-1616, unpub, (La.App. 4 Cir. 1/24/12). He then sought review of the ruling with the Louisiana Supreme Court, which also denied the writ application. State v. Greenberry, 12-0350 (La.2/15/12), 82 So.3d 271.

| thereafter, Mr. Greenberry withdrew his plea of not guilty and entered a guilty plea under Crosby, reserving his right to appeal the trial court’s denial of his motion to suppress. A1 delays were waived and Mr. Greenberry was sentenced to five years at hard labor, with credit for time served. This appeal followed.

FACTUAL BACKGROUND

At the hearing on the motion to suppress, the sole witness to testify was New Orleans Police Officer Corby Slague. According to Officer Slague, on February 24, 2011, he was assigned to the Fifth District, in the area of Franklin and North Roman Streets, an area he described as “a highly, very highly violent crime area,” marked by “an increase in murders, and shootings and armed robberies” and an area in which there is “a lot of narcotic activity.” Officer Slague was notified by radio from “an undercover unit in the area” that an older model, GMC Yukon was “continuously circling the area,” and “going in and out of the neighborhoods.” He described this as “acting suspicious and driving in a suspicious manner.” When questioned about the “suspicious” manner in which the vehicle was being driven, Officer Slague indicated that it was “circling the area driving in a slow manner.” Officer Slague had previously seen the vehicle “make several passes in the area as well.”

At that point, Officer Slague elected to conduct an investigatory stop of the vehicle. Officer Slague’s partner, Officer Davis, asked the driver of the vehicle (Mr. Greenberry) for identification and Mr. Greenberry advised that he had none. Officer Davis then asked Mr. Greenberry to exit the vehicle. When Mr. Greenberry opened the door, the vehicle’s light came on, illuminating the interior |sof the vehicle. Officer Slague observed a small, clear, plastic bag on the floorboard which held several other small clear plastic bags containing a white powdery substance. After a field test revealed that the substance was cocaine, Mr. Greenberry was arrested.

STANDARD OF REVIEW

The “appellate court reviews the district court’s findings of fact on a motion to suppress under a clearly erroneous standard, and will review the district court’s ultimate determination of Fourth Amendment reasonableness de novo.” State v. Dorsey, 00-2331, p. 1 (La.App. 4 Cir. 1/24/01), 779 So.2d 1008, 1009, citing U.S. v. Seals, 987 F.2d 1102 (5th Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). As the Dorsey court indicated, “[o]n mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id. (citation omitted). Furthermore, a trial court’s decision as to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581.

DISCUSSION

Mr. Greenberry maintains that the trial court erred in failing to suppress the evidence (cocaine) found in his car, on the basis that Officer Slague’s seizure of it was the result of an illegal stop and violated the federal and state constitutional prohibitions against unreasonable searches and seizures. See U.S. Const, amend. IV (“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”); La. Constart. I § 5 (“[e]very |4person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy”). Mr. Greenberry contends that Officer Slague lacked reasonable suspicion warranting an investigatory stop and accordingly, the evidence ultimately recovered from his vehicle was the product of an unlawful stop and an unlawful seizure. We agree with Mr. Greenberry and find that the trial court’s denial of the motion to suppress was an abuse of its discretion.

The standard by which an officer can lawfully detain a person, as enunciated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), was codified in La. C.Cr.P. art. 215.1, which provides, in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

Our jurisprudence interpreting this Article indicates that “[rjeasonable suspicion” to stop a person is “something less than the probable cause required for an arrest, and a reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights.” State v. Brown, 09-0722, p. 8 (La.App. 4 Cir. 2/10/10), 32 So.3d 939, 945, citing State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37; State v. Littles, 98-2517, p. 3 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737. It is clear that, in making a stop, a police officer “must have a particularized and objective basis for | ¡¡suspecting the particular person stopped of criminal activity.” State v. Temple, 02-1895, p. 4 (La.9/9/03), 854 So.2d 856, 859-60 (internal citations omitted).

This Louisiana Supreme Court has recognized that “the reputation of an area is an articulable fact upon which a police officer may legitimately rely and is therefore relevant in the determination of reasonable suspicion.” Temple, 02-1895, p. 5, 854 So.2d at 860. However, relying on the United States Supreme Court decisions of Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) and Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), this Court has held that “an individual’s presence in an area of expected crime, standing alone, is insufficient to support a reasonable, particularized suspicion that a person is involved in criminal activity.” State v. McClendon, 13-1454, p. 10 (La.App. 4 Cir. 1/30/14), 133 So.3d 239, 248, writ denied, 14-0324 (La.2/19/14), 133 So.3d 667. See also State v. Francis, 10-1149, p. 3 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 707; State v. Allen, 01-0939, p. 5 (La.App. 4 Cir. 7/18/01), 792 So.2d 93, 97. Rather, the courts have required some other, articulable factors that give rise to a reasonable suspicion of criminal activity. Thus, for example, “flight, nervousness, or a startled look at the sight of a police officer” are types of conduct that “may be highly suspicious” and may support “a finding of reasonable cause.” State v. Morgan, 09-2352, p. 8 (La.3/15/11), 59 So.3d 403, 408. Similarly, “unprovoked flight by an individual in a high-crime area” has been held sufficient to warrant an investigatory stop. Morgan, 09-2352, p. 6, 59 So.3d at 407, citing Wardlow, 528 U.S. at 124, 120 S.Ct. at 676 (internal citations omitted). Other factors may include the “lateness of the hour,” “whether an area is dimly lit, and the nature of the defendant’s flight.” Id. 09-2352, pp. 6-7, 59 So.3d at 407, (internal citations omitted).

|fiIn the instant matter, the sole basis for Officer Slague’s stop of Mr. Greenberry was the “manner in which the vehicle was being driven.” The trial court, noting the area to be a “targeted area,” and the officers’ perception of a “suspicious vehicle,” found that “the officers in an effort to be proactive on patrol did have the right to pull over the vehicle.” Importantly, however, while Officer Slague noted that the area was a high-crime area, he admitted that he did not see Mr. Greenberry commit any traffic violation, engage in the sale of any narcotics, or otherwise engage in any illegal activity. Based on the facts and circumstances of this case, we find that Officer Slague did not have reasonable suspicion to justify an investigatory stop of Mr. Greenberry. We therefore find that Officer Slague’s stop was illegal. It follows, therefore, that the cocaine seized from Mr. Greenberry’s vehicle was subject to suppression as the fruit of the illegal stop. See State v. Marino, 11-0224, p. 9 (La.App. 4 Cir. 9/28/11), 74 So.3d 742, 748; State v. Smith, 99-2129, p. 10 (La.App. 4 Cir. 4/26/00), 761 So.2d 642, 648; State v. Creecy, 98-1472, p. 10 (La.App. 4 Cir. 7/14/99), 742 So.2d 615, 621.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Dameion Greenberry are vacated, and the judgment of the trial court is reversed. This matter is hereby remanded to the district court for further proceedings.

REVERSED AND REMANDED.

      . 338 So.2d 584 (La.1976).

      . We note that the State did not file an appellate brief.

      . As is our practice, we conducted a review of the record and found no errors patent.


source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge. BONIN, J.,

license: Public Domain

text:
    David DeSALVO v. DEPARTMENT OF POLICE.
    No. 2013-CA-1598.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2014.

      Kevin Vincent Boshea, Kevin V. Boshea, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Sharonda R. Williams, City Attorney for the City of New Orleans, Shawn Lindsay, Assistant City Attorney for the City of New Orleans, Elizabeth Robins, Assistant City Attorney for the City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    Court composed of Chief Judge JAMES F. McKAY III, Judge PAUL A. BONIN, Judge ROSEMARY LEDET.
   JAMES F. McKAY III, Chief Judge.

hln this civil service, David DeSalvo seeks review of a judgment by the Civil Service Commission of the City of New Orleans, which denied the appeal of his termination by the New Orleans Police Department. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

David DeSalvo was employed as a Police Officer I with the New Orleans Police Department (NOPD) from September of 2009 through June 5, 2012 and had gained permanent status. On January 20, 2012, while Mr. DeSalvo and his partner were in the process of arresting a suspect, Mr. DeSalvo received a laceration to his head, which required medical attention. Immediately thereafter, Mr. DeSalvo sought medical treatment and also submitted to a post-accident substance abuse screening test at Tulane Medical Center.

On January 24, 2012, the Public Integrity Bureau was notified that the test results of Mr. DeSalvo’s urine specimen revealed a positive result for marijuana metabolite. The test results indicated that Mr. DeSal-vo had a T.H.C. level of 43 nanograms per milliliter. Thereupon, Sergeant Arlen Barnes was assigned to investigate.

|POn January 25, 2012, Mr. DeSalvo submitted another urine sample that was tested by Tulane Drug Analysis Laboratory. A hair test was conducted on January 30, 2012. These private tests, paid for by Mr. DeSalvo, were both negative.

Following Sergeant Barnes’s investigation, an administrative hearing took place before Deputy Chief Daryl Albert. The NOPD terminated Mr. DeSalvo’s employment, by letter dated June 5, 2012, for violation of internal rules regarding use of drugs and CAO Policy Memorandum # 89 for the City of New Orleans relative to Substance Abuse. Mr. DeSalvo appealed his termination to the Civil Service Commission for the City of New Orleans.

On May 8, 2013, a hearing took place before hearing examiner Jay Ginsberg. Testifying at the hearing were Deputy Chief Albert, Sergeant Barnes and Ms. Susan Bybee, an employee of Alere Toxicology Service. Ms. Bybee identified a lab report that identified 43 nanograms of marijuana per milliliter in Mr. DeSalvo’s urine test. Sergeant Barnes and Deputy Chief Albert testified as to the investigation. However, Deputy Chief Albert was unaware of the negative result of the January 25, 2012 test. Mr. DeSalvo testified that he had undergone random drugs tests in the past and had always tested negative. The parties also stipulated to and accepted all testing results and chains of custody.

Following the hearing, a three-member panel of the Civil Service Commission reviewed the evidence and a transcript of the hearing. The panel found that the appointing authority established by a preponderance of evidence that it terminated Mr. DeSalvo for cause and that the appointing authority has a legitimate governmental interest in testing safety sensitive employees who sustain work related injuries. Therefore, on September 6, 2013, the Civil Service | ¡¡Commission denied Mr. DeSal-vo’s appeal. It is from this judgment that he now appeals to this Court.

DISCUSSION

On appeal, Mr. DeSalvo raises one assignment of error: the Civil Service Commission erred in concluding, based on the evidence produced, that the appointing authority terminated him with sufficient legal cause.

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his/her employer except for cause expressed in writing. La. Const, art. X, § 8(A); Walters v. Dept. of Police, 454 So.2d 106 (La.1984). The employee may appeal from such disciplinary action to the City Civil Service Commission, and the burden of proof on appeal, as to the facts, is on the appointing authority. Id.; Goins v. Dept. of Police, 570 So.2d 93 (La.App. 4th Cir.1990).

“Cause” for dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Walters, 454 So.2d at 113. The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Id.

The Civil Service Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X, § 12(B). Thus, the reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the Civil Service Commission’s factual findings. Walters v. Department of Police, 454 So.2d at 113; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In reviewing the Civil Service Commission’s findings of fact, the court should not re verse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the Civil Service Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Walters at 454 So.2d at 112-14; See also Evans v. DeRidder Municipal Fire, 2001-2466 (La.4/3/02), 815 So.2d 61; Delpit v. New Orleans Dept. of Utilities, 2002-2008 (La. App. 4 Cir. 2/19/03), 841 So.2d 30. Any disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. Newman v. Dept. of Fire, 425 So.2d 753 (La.1983).

In the instant case, Mr. DeSalvo’s initial urine sample tested positive for a relatively small amount of marijuana metabolites (43 ng/ml). Some controversy exists whether a urine sample which tests less than 50 ng/ml should even be considered as a positive result. La. R.S. 49:1005, which deals with drug testing procedures and standards, requires that drug testing shall only be performed Substance Abuse and Mental Health Services Administration (SAMHSA) certified labs when negative employment consequences apply. The cutoff limits shall be in accordance with SAMHSA guidelines, with the exception of initial testing for marijuana. The cutoff for marijuana shall be no less than 50 ng/ml. Ms. Bybee Utold the hearing officer that a second test was performed after the initial test was done, but no report of that test was introduced or made available. Labs that follow the Mandatory Guidelines for Federal Workplace Drug Testing Programs, published by SAMHSA, first conduct one or more initial screens followed by confirmatory tests. According to these guidelines, if you test below the drug cutoff levels on the initial screens, that lab cannot report it as a positive test or continue with the confirmatory tests. If you test above on the initial screen but below on the confirmatory tests, the lab still cannot report them as positive. Furthermore, Deputy Chief Albert testified that he was unaware of the January 25, 2012 negative drug test. Also, Mr. DeSalvo had never tested positive on any random drug test, and his hair sample test indicated that he was not a habitual or long term user of marijuana. When these facts are all considered together, it calls into question whether there was just cause to terminate Mr. DeSalvo.

As stated above, the burden of proof as to the facts for taking a disciplinary action is on the appointing authority. There are a number of circumstances in the instant case which call the facts into question. Because of this, the NOPD failed to meet its burden of proof as to the facts for which Mr. DeSalvo was fired.

CONCLUSION

For the above and foregoing reasons, the judgment of the Civil Service Commission is reversed, and it is ordered that Mr. DeSalvo be reinstated in his former position by the New Orleans Police Department.

REVERSED AND RENDERED.

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

Li concur.

Mr. DeSalvo was apparently drug-tested under the authority of La. R.S. 49:1015 A. The cut-off level for marijuana, which is specified by statute, “shall be no less than fifty nanogram,s/ML and no more than one hundred nanograms/ML as specified by the employer or testing entity.” La. R.S. 49:1005 B (emphasis added). Here, the employer and the testing entity are relying upon a lesser cut-off limit, which contravenes the clear dictates of law because the NOPD is using the below cut-off limit for a “negative employment consequence,” namely termination of employment. See La. R.S. 49:1001(5), 1005 A. As a matter of law, these test results cannot support the termination of Mr. DeSalvo, who is not an at-will employee.


text:
    NEW JAX CONDOMINIUMS ASSOCIATION, INC. v. 620 DECATUR, L.L.C.
    No. 2014-CA-0026.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2014.

      Stuart H. Smith, Bonnie A. Kendrick, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, Ron A. Austin, Austin & Associates, L.L.C., Harvey, LA, for New Jax Condominiums Association, Inc.
    David J. Halpern, Jill A. Gautreaux, McGlinchey Stafford PLLC, New Orleans, LA, for 620 Decatur, LLC.
    Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS.
   DANIEL L. DYSART, Judge.

620 Decatur, L.L.C., filed an appeal seeking reversal of a judgment finding it in contempt of court for violating a preliminary injunction previously issued by the trial court. New Jax Condominiums Association, Inc., filed a motion to dismiss the appeal. The appeal was dismissed based on this Court’s ruling in Yokum v. Karno, 12-1736, p. 4 (La.App. 4 Cir 10/23/13), 126 So.3d 723, 727, writ denied, 13-2706 (La.2/21/14), 133 So.3d 683, in which we held that “[ujntil such time as the trial court actually imposes a criminal sentence or sanctions, there is nothing to appeal.” However, because the motion for appeal was filed within the time limits to apply for a supervisory writ, we have converted the appeal to a supervisory writ.

MERITS OF WRIT APPLICATION:

A trial court is vested with great discretion to determine whether circumstances warrant holding a party in constructive contempt of court for willful disobedience of a court order. South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 09-0011, p. 8 (La.App. 4 Cir. 6/30/10), 42 So.3d 1094, 1099, Watters v. Dep’t of Social Services, 02-1425, p. 4 (La.App. 4 Cir. 6/4/03), 849 |2So.2d 734, 737. Appellate courts use the manifest error rule when reviewing the propriety of civil eon-tempt orders. Joseph v. Entergy, 05-0263, p. 6 (La.App. 4 Cir. 8/3/05), 918 So.2d 47, 51, citing Davis v. Harmony House Nursing Home, 35,080, p. 6 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, 96; Sonnier v. Town of Vinton, 99-927, p. 3 (La.App. 3 Cir. 12/22/99), 759 So.2d 818, 820.

After a thorough review of the record of this matter, including the trial court’s reasons for judgment, we conclude that the evidence supports the trial court’s conclusion that 620 Decatur, L.L.C., was in constructive contempt of the preliminary injunction previously issued.

New Jax Condominiums Association, Inc., presented evidence of 620 Decatur, L.L.C.’s willful disobedience of the protective order through its expert witness, who the trial court found to be credible and to have used the proper equipment by which to measure the sound. The trial court also found that, although 620 Decatur, L.L.C., purchased a limiter to regulate the sound emanating from the club, the limiter was intentionally set at a level above what the ordinance would allow. Thus, we do not find that the trial court was manifestly erroneous in its ruling.

Accordingly, we deny 620 Decatur, L.L.C.’s writ application.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Anthony MARTIN.
    No. 2013-KA-0628.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project Marrero, LA, for Defendant/Appellant.
    Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS.
   ROLAND L. BELSOME, Judge.

h The defendant, Anthony Martin, was convicted of manslaughter; two counts of attempted second degree murder; six counts of attempted armed robbery with a firearm; one count of attempted aggravated burglary; and one count of illegal use of weapons by discharging a firearm while committing a crime of violence. Several errors patent and a sentencing error result in this matter being affirmed in part, vacated in part and remanded.

PROCEDURAL HISTORY

In a thirteen count grand jury indictment, the defendant was charged with second degree murder (Count I); illegal use of weapons by discharging a firearm while committing a crime of violence (Count II); aggravated burglary of an inhabited dwelling (Count III); attempted second-degree murder (Counts IV, V, and VI); attempted armed robbery with a firearm (Counts VII, VIII, IX, X, XI, and XII); and possession of a firearm after having been previously convicted of an enumerated felony (Count XIII). He pleaded not guilty at his arraignment.

12Subsequently, the trial court denied his motion to quash the indictment. After a twelve-person jury trial, he was found guilty of the responsive verdicts of manslaughter as to Count I, and attempted aggravated burglary as to Count III. He was found not guilty as to Count V, attempted second degree murder of Victor Garcia. The defendant was found guilty as charged on the remaining nine counts: one count of illegal discharge of a firearm during the commission of a violent crime (Count II), three counts of attempted see-ond degree murder (Counts. IV and VI), and six counts of attempted armed robbery (Counts VII through XII).

The trial court denied the defendant’s motion for new trial and sentenced him to forty years at hard labor for manslaughter Count I; fifteen years at hard labor on Count II; twelve years at hard labor on Count III; fifty years at hard labor on Counts IV and VI; and forty-nine and one-half years at hard labor on Counts VII through XII. All sentences were imposed without the benefit of parole, probation, or suspension of sentence, and ordered to be served consecutively. On the same day, he was adjudicated a second-felony habitual offender as to Count IV (attempted second degree murder) only; the trial court vacated the original sentence imposed on that count and sentenced him to one hundred years at hard | dab or, without the benefit of parole, probation, or suspension of sentence. The trial court denied his motion to reconsider the sentence, and this appeal followed.

FACTS

On August 22, 2007, three men forced their way into a residence located at 4810 Nighthart Street, in New Orleans. At the time of the incident, there were five men and two women at home: Jose Guevara, Julio Benitez-Cruz, Danilo Garcia Pavón, Victor Garcia, Michael Sanchez Ramirez, Fanny Villalta Flores, and Jessica Maldonado. Mr. Ramirez and Mr. Pavón were outside eating when they were accosted by the men at gunpoint, and quickly moved inside to the living room.

Once inside, they were held face-down on the floor at gunpoint, while the other perpetrators gathered the remaining occupants, except Mr. Garcia, into íhe living room and ordered them to lie on the ground as well. When Ms. Flores was ordered to lie face down in the living room, one of the male victims explained to the perpetrators that she could not lie on the ground because she was pregnant. Ms. Flores was then ordered to sit while the perpetrators demanded the victims’ money. Following a brief struggle with one of the gunmen, Mr. Benitez-Cruz was shot in the chest. After hearing the shot, Mr. Guevara jumped on the defendant in an attempt to commandeer his gun. During the struggle, the defendant fired twice, striking Mr. Ramirez in the arm and right side of the chest. Mr. Garcia exited from a room in the rear of the home and was also shot by the defendant.

| .(Ultimately, Mr. Guevara was able to take hold of the gun. When the defendant attempted to flee, Mr. Guevara grabbed him by the shorts, pulling his shorts and tennis shoes off. The police later recovered the defendant’s identification card from the shorts left at the scene. Mr. Pavón, Mr. Guevara, Ms. Flores, and Mr. Ramirez all identified the defendant in a photographic lineup. He was later apprehended in Mississippi, and extradited to New Orleans.

ERRORS PATENT

A review of the record reveals two major errors.

First, the minute entry and transcript from the sentencing are inconsistent. Though the minute entry from sentencing reflects that all of the defendant’s sentences are to be served without benefits, the transcript reflects that the trial court restricted benefits in the multiple offender sentence on Count IV only. The minute entry further reflects that the multiple offender sentence is to run consecutively to the other sentences; however, the transcript is silent. Generally, when there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, the entries should be amended to delete both the restriction of benefits and the consecutive sentence on Count IV, then the amendments should be forwarded to the officer in charge of the institution to which the defendant has been sentenced, as well as to the legal department of the Department of Corrections. See |fiLa.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam).

Next, the trial court failed to expressly impose an additional five year sentence on Counts VII-XII, for using a firearm in connection with an attempted armed robbery, on each of those counts, as required by La. R.S. 14:64.3. The defendant was convicted of six counts of attempted armed robbery with a firearm, and sentenced to forty-nine and one-half years at hard labor on each count, the maximum. In State v. Burton, 09-826, p. 3 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076, this Court held that in cases where it is unclear whether the trial court imposed a firearm enhancement, the sentence is indeterminate, requiring it to be vacated and the matter remanded for resentencing for clarification of whether the defendant’s sentence includes the additional punishment pursuant to La. R.S. 14:64.3. See also State v. Adams, 10-1140 (La.App. 4 Cir. 6/1/11), 68 So.3d 1165; and State v. Carter, 13-74, p. 5 (La.App. 4 Cir. 12/11/13), 131 So.3d 153, 158. Thus, the defendant’s sentences in Counts VII-XII are vacated and remanded for resentencing.

¡«DISCUSSION

On appeal, the defendant assigns four errors in reference to three issues: 1) the motion to quash; 2) the habitual offender plea; and 3) the sentencing. The defendant argues that the trial court erred in denying his motion to quash, which was based on the allegation that the State abused its prosecutorial discretion by improperly entering a nolle prosequi as to his first indictment, on the morning his second trial was set to begin, and then reinsti-tuting prosecution the following day.

In support of his argument that the trial court erred in denying his motion to quash, the defendant contends that: 1) the State abused its prosecutorial authority entering a nolle prosequi in order to circumvent the authority* of the trial court; 2) the State violated the defendant’s due process rights by obtaining a procedural advantage not available to him; 3) the State violated the separation of powers clause; and 4) the State’s misuse of its powers prejudiced the defendant.

Generally, a trial court’s ruling on a motion to quash should not be disturbed absent a clear abuse of discretion. State v. Sanders, 12-409, pp. 4-5 (La.App. 4 Cir. 11/14/12), 104 So.3d 619, 624. Louisiana courts understand that the determination of motions to quash in which the district attorney entered a nolle prosequi and later reinstituted charges should be decided on the basis of the facts and circumstances of the individual case. State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209.

The defendant argues that the dismissal and reinstitution of prosecution circumvented the authority of the trial court to the defendant’s disadvantage. 17However, the Louisiana Supreme Court and this Court have recognized the State’s authority to enter a nolle prosequi and reinstitute the same charge. State v. Bias, 06-1153, p. 2 (La.App. 4 Cir. 12/20/06), 947 So.2d 797, 799; Love, 00-3347 at pp. 12-13, 847 So.2d at 1208-1209. See also La. C.CrJP. art. 691; La.C.Cr.P. art. 693. Even “a prosecutor’s evident, flagrant, objectionable, and ill-motived ‘flaunting’ is not in itself specific prejudice to the defense at a forthcoming trial.” State v. Hayes, 10-1538, pp. 9-10 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 15, writ denied, 11-2144 (La.3/2/12), 83 So.3d 1043. The jurisprudence clearly rejects the notion that the State’s action alone would have supported the granting of a motion to quash under the circumstances of the instant case. “In order to sustain a motion to quash [based on the prosecutor’s abusive exercise of its power to nolle prosequi and reinstitute], the resulting specific prejudice to his right to a fair trial must be shown by the defendant.” Id.

Further, the due process and separation of powers arguments raised by the defendant have consistently been rejected by this Court. Hayes, 10-1538 at p. 3, 75 So.3d at 11-12 (where this Court rejected the defendant’s due process and related separation of powers claim, in which he primarily argued the holding in Wardius v. Oregan, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)); State v. Luther, 11-1003, pp. 7-8 (La.App. 4 Cir. 5/9/12), 91 So.3d 560, 563 (where this Court, citing to Hayes, supra, again rejected due process and separation of powers arguments made by the defendant); and State v. Brown, 11-947, p. 3, n. 4 (La.App. 4 Cir. 3/7/12), 88 So.3d 662, 664 (noting that “[b]oth the Louisiana Supreme Court and this court have rejected the separation of powers and due process claims”).

^Nevertheless, the jurisprudence has recognized that the State’s dismissal-reinstitution authority may be overborne under the circumstances of any given case by proof either that the defendant’s right to a fair or speedy trial was violated. State v. King, 10-2638 (La.5/6/11), 60 So.3d 615. A defendant challenging the State’s dismissal and reinstitution of charges has the burden of showing a violation of his or her right to a fair trial or constitutional right to speedy trial. King, 10-2638 at pp. 7-8, 60 So.3d at 619; State v. Scott, 04-1142, pp. 11-12 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, 850-51.

This brings us to the defendant’s final argument that he was prejudiced by the prosecutor’s actions. To demonstrate prejudice, he argues three things: 1) the State included additional charges in the second indictment; 2) he was forced to go to trial with a jury different from the one originally selected; and 3) his right to a speedy trial was violated.

First, the defendant claims he was prejudiced because he was forced to stand trial for six additional charges he had not faced in the first indictment. However, all thirteen offenses with which the defendant was charged in the instant case were well within the time limits allotted for prosecution under La.C.Cr.P art. 572(A)(1). The State’s case was based on facts establishing that all of the offenses occurred within a very brief period of time in front of and inside of one residence. While some of the elements of the nine newly charged offenses were different from those for the second degree murder and attempted second degree murder charges the defendant originally faced, he has articulated no specific prejudice to his ability to have presented a defense as to those nine new offenses.

l9The defendant submits that the additional offenses were only included in the indictment to portray him in a bad light. However, evidence of the defendant’s possession of and use of a gun, his armed forcible entry into the residence, and the alleged attempted armed robberies with a firearm, would have been admissible at the first trial as either relevant evidence or res gestae /integral act evidence pursuant to La. C.E. art. 404(B)(1). Moreover, the State dropped three charges for attempted second degree murder that were included in the first amended indictment, which were more serious in nature than the six additional charges included here.

Second, the defendant contends that due to the State’s dismissal of the first amended indictment, he was forced to go to trial with a different jury. He represents that the last juror selected for that August 2011 trial was challenged for cause by the State, but the challenge was denied and the State was forced to go to trial with a juror it deemed undesirable. Thus, he maintains that the likelihood of a favorable outcome was greater with that jury. However, such conjecture falls short of the required showing of actual prejudice to the defendant’s due process right to a fair trial.

Finally, the defendant argues that he was prejudiced by having his constitutional right — not his statutory right — to a speedy trial violated by the State’s actions in entering the nolle prosequi. The right to a speedy trial is guaranteed by both the Sixth Amendment to the U.S. Constitution and La. Const, art. 1, § 16.

|10In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set out the following four factors to determine whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reason(s) for the delay; (3) the defendant’s assertion of his right to a speedy trial; and, (4) the prejudice to the defendant. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192; State v. Mathews, 13-525, p. 2 (La.11/15/13), 129 So.3d 1217, 1218.

The Court in Barker held that the length of the delay was to some extent a triggering mechanism and that until the delay was presumptively prejudicial, there was no need to inquire into the other factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Mathews, supra. The Court further stated that the length of the delay that would provoke such an inquiry was dependent upon the particular circumstances of the case. Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192. Also, the reason for the delay is closely related to the length of the delay, and different weights should be given to different reasons. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. The Court noted that a deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government; a more neutral reason such as negligence or overcrowded courts should be weighted less heavily; and what the Court characterized as a “valid reason,” such as a missing witness, should serve to justify an appropriate delay. Id.

As to the defendant’s assertion of his right to a speedy trial, the Court in Barker stated that the assertion of the right was entitled to strong evidentiary weight in determining whether the defendant was deprived of his right, with the |1Tcourt emphasizing that the “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93.

In the instant case, the delay to be considered for purposes of the first Barker factor is the delay between the defendant’s arrest on November 1, 2007, and the day he filed his motion to quash, October 18, 2011, in the reinstituted prosecution in the instant case. This was a period of almost four years; however, this was a multi-count indictment involving serious and complex charges. See State v. Reaves, 376 So.2d 136, 138 (La.1979)(quoting Barker, supra)(“ ‘the delay tolerable for the simplest street crime is considerably less than for a serious complex conspiracy charge’ ”).

In addressing the second Barker factor, the reason for the delay, the defendant maintains that there were approximately two defense continuances, three joint continuances, six State continuances, and numerous court cancellations. He contends that these delays do not justify the amount of time it took to bring him to trial. However, the defendant fails to consider that much of the delay in bringing him to trial is attributable to two mistrials, one in the first case and one in the instant case, as well as dismissal and reinstitution of prosecution, due to the absence of a key witness who was out of the country.

The unavailability of a state witness is a legitimate reason for delaying trial or entering a nolle prosequi, and thus such delay/nolle prosequi does not violate an accused’s right to a speedy trial. Sanders, 12-409 at p. 9, 104 So.3d at 626-27 (citing Love, 00-3347 at p. 6, 847 So.2d at 1204; State v. Batiste, 05-1571, p. 8 (La.10/17/06), 939 So.2d 1245, 1249; State v. Scott, 06-1610, p. 6, (La.App. 4 Cir. 4/25/07), 958 So.2d 725, 729; State v. Shannon, 2009-0305, p. 8 (La.App. 4 Cir. 9/9/09), 17 So.3d 1061, 1067). Moreover, the record does not indicate that the government deliberately delayed the trial in an attempt to hamper the defense.

As to the third Barker factor, the defendant asserted his constitutional right to a speedy trial for the first time in his motion to quash the instant indictment, filed nearly four years after he was arrested.

The final Barker factor, prejudice to the defendant, should be considered in light of the interests in which the speedy trial right was designed to protect: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

The defendant focuses on the issue of whether the delay impaired or prejudiced the defense in the instant case. He argues that the passage of four years impaired the memory of State witnesses Mr. Guevara and Ms. Flores. To demonstrate his point, he cites to discrepancies in Mr. Guevara’s testimony. In particular, he asserts that at a motion hearing in the instant case, Mr. Guevara testified that the defendant was not the gunman who shot the homicide victim. However, during the March 2011 trial that ended in a mistrial, he was not sure whether the defendant shot the homicide victim.

| ^However, the record does not reflect any inconsistent testimony. Mr. Guevara’s testimony at the instant trial was essentially the same testimony he gave at the February motion hearing. Moreover, the pertinent transcript from the March 81, 2011, mistrial is not contained in the record. Thus, there is no evidence of Mr. Guevara’s memory impairment.

The defendant also argues that Ms. Flores’ version of the events changed. In particular, she initially told an FBI agent shortly after the crimes that she had gone into her bedroom to await her husband and that when he did not come she left the room, whereupon she saw one of the perpetrators. She later testified at trial that she was in her room when one of the perpetrators entered her bedroom and forced her to the living room. The agent, Juan Bacerra, testified at trial for the defense as an impeachment witness.

However, evidence of these inconsistent accounts actually benefitted the defendant. He used the discrepancy between what was in retired FBI Agent Bacerra’s report and Ms. Flores’ testimony at the August 2012 trial in an attempt to discredit her entire testimony. Thus, he failed to prove any prejudice. Although these witnesses may have had difficulty recalling specific details of the incident, they were consistent in their identifications of the defendant.

Considering the circumstances of this case in light of the Barker factors, we cannot conclude that there was a violation of the defendant’s constitutional right to a speedy trial. Moreover, the record does not support the argument that the defendant was prejudiced by the dismissal and subsequent reinstitution of prosecution in the instant case. Under these circumstances, we do not find that the trial court abused its discretion in denying the defendant’s motion to quash the bill of information in this case.

| uIn this next assignment of error, the defendant argues that his habitual offender plea was not valid due to the trial court’s failure to advise him of his rights or enter into a plea colloquy with him before accepting the plea. La. R.S. 15:529.1(D)(l)(a) states that upon the district attorney filing a habitual offender bill of information the trial court shall inform the defendant of the allegation contained in the information and of his right to be tried as to the truth thereof, and shall require the defendant to say whether the allegations are true. In State v. Johnson, 432 So.2d 815, 817 (La.1983), the Louisiana Supreme Court found that La. R.S. 15:529.1(D) “implicitly provides that the defendant should be advised, by the court, of his statutory right to remain silent.” The requirements of R.S. 15:529.1(D)(l)(a) that the court inform a defendant of the allegations in a habitual offender bill of information, and of his right “to be tried as to the truth thereof according to law,” should not serve as technical traps for an unwary but otherwise conscientious judge.

While the record reflects that the trial court advised the defendant’s counsel, in his presence, of his right to a multiple offender hearing, it did not address the defendant directly or discuss his right to remain silent. For the defendant to receive an enhanced penalty under La. R.S. 15:529.1, the State must prove prior felony convictions and then prove the defendant is the same person who committed the prior felonies. State v. Blackwell, 377 So.2d 110 (La.1979). Both the identity and the prior conviction alleged must be proven beyond a reasonable doubt. La. R.S. 15:529.1(D)(l)(b). Various methods of proof establishing identity have been recognized as sufficient to sustain the state’s burden of proof, including testimony of witnesses, expert opinion as to fingerprints, and photographs contained in duly authenticated records. State v. Brown, 514 So.2d 99, 106 (La.1987); State v. Jones, 408 So.2d 1285, 1294 (La.1982); State v. Curtis, 338 So.2d 662, 664 (La.1976).

Even though the defendant, through his counsel, admitted to his multiple offender status, the State, nevertheless, submitted the certification packet for record purposes during the hearing. After the conclusion of the entire hearing, the State admitted the certification packet into evidence.

The District Attorney’s Office screening action forms in the instant prosecution show that the defendant, Anthony Martin, was a black male, date of birth, July 14, 1980, residing at 6684 Chef Menteur Highway, New Orleans, Louisiana. Capias issued in the instant case reflect this same information. The documents the State submitted at the habitual offender hearing and later filed in the record reflect that on March 27, 2003, Anthony Martin, a black male, date of birth July 14, 1980, residing at 6684 Chef Menteur Highway, New Orleans, Louisiana, pleaded guilty to possession of cocaine in Section “G” of Orleans Parish Criminal District Court, as charged in the habitual offender bill of information filed in the instant case. The documents also reflect that he was given probation for that offense. The defendant further confirmed his felony conviction and probationary sentence during his trial testimony. As mandated by the Louisiana Supreme Court, the trial court could properly take those admissions into account. State v. Brown, 11-1656, pp. 2-3 (La.2/10/12), 82 So.3d 1232, 1234. Given these facts, we find the State proved the defendant’s multiple offender status beyond a reasonable doubt despite the trial court’s harmless error.

11fiIn the two remaining assignments of error, the defendant complains that his sentences were excessive, both as to the length of the sentences and as to the order that they be served consecutively. The court sentenced the defendant to the maximum sentence on all counts, except Counts II and III. While the defendant does not argue that any one particular sentence is excessive, he does argue that the five-hundred and fourteen-year sentence is unconstitutionally excessive. He also argues that the trial court failed to articulate the “statutorily required reasons for imposing the maximum sentences.” Thus, we limit our review of individual sentences to the maximum sentences only.

La. Const, art. I, § 20 explicitly prohibits excessive sentences. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Every, 09-0721, p. 7 (La.App. 4 Cir. 3/24/10), 35 So.3d 410, 417. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. State v. Cassimere, 09-1075, p. 5 (La.App. 4 Cir. 3/17/10), 34 So.3d 954, 958. A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Ambeau, 08-1191, p. 9 (La.App. 4 Cir. 2/11/09), 6 So.3d 215, 221. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Vargas-Alcerreca, 12-1070, p. 25 (La.App. 4 Cir. 10/2/13), 126 So.3d 569, 583 (quoting State v. Galindo, 06-1090, pp. 15-16 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, 1113).

117Generally, when reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1 and whether the sentence is warranted under the facts established by the record. State v. Wiltz, 08-1441, p. 10 (La.App. 4 Cir. 12/16/09), 28 So.3d 554, 561. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious offenders. State v. Bell, 09-0588, p. 4 (La.App. 4 Cir. 10/14/09), 23 So.3d 981, 984.

However, even where there has not been full compliance with La. C.Cr.P. art. 894.1, resentencing is unnecessary where the record shows an adequate factual basis for the sentence imposed. State v. Stukes, 08-1217, p. 25 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233, 1250 (citing State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819). Further, La.C.Cr.P. art. 881.4(D) expressly states that an “appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.”

The defendant was sentenced to the maximum sentence of forty years at hard labor on Count I, for manslaughter; the maximum sentence of forty-nine and one-half years at hard labor on Counts VII through XII, for attempted armed robbery with a firearm; the maximum sentence of fifty years on Count VI, for attempted second degree murder; and the maximum sentence of one hundred years at hard labor as a second-felony habitual offender on Count IV, for attempted second degree murder. He was sentenced to fifteen years on Count II for the illegal use of weapons by discharging a firearm while committing a crime of |lsviolence, five years less than maximum sentence of twenty years; and twelve years on Count III for attempted aggravated burglary of an inhabited dwelling, which was three years less than the maximum. Though the trial court did not comment on his reasons for the sentences; he did comment on the serious nature of the crime when he sentenced the defendant as a multiple offender on Count IV.

The evidence established that the defendant was one of a group of three men all armed with a handgun that targeted a dwelling, which housed a group of Hispanic workers. The potential for death or great bodily injury in the perpetration of this crime was great. In fact, one of the victims suffered a fatality, and two others were injured from gunshot wounds. That the shootings may have occurred when one or more of the victims resisted the defendant and his accomplices in self-defense is not a mitigating factor in the shootings, as he seems to suggest. Ms. Flores, was in her ninth month of pregnancy at the time she and the other victims were terrorized by the defendant and his accomplices. The record further reflects that the defendant was thirty-two years old at the time of sentencing and had one prior felony conyiction. At sentencing, Mr. Ramirez gave a victim impact statement regarding the terror he felt and the injuries he suffered, requiring fifteen surgeries; the defendant expressed no remorse for his crimes.

This court has previously affirmed maximum forty-year sentences for manslaughter as not unconstitutionally excessive. See State v. Peters, 12-1641 (La.App. 4 Cir. 8/21/13), 123 So.3d 307, writ denied, 13-2259 (La.3/14/14), 134 So.3d 1195 (the defendant was originally charged with second degree murder relative to 119a drive-by shooting; however, the State amended the charges to manslaughter); State v. Colbert, 07-947 (La.App. 4 Cir. 7/23/08), 990 So.2d 76 (the defendant was charged with second degree murder and convicted of manslaughter); State v. Allen, 06-1434 (La.App. 4 Cir. 3/7/07), 954 So.2d 779; State v. Bell, 02-2349 (La.App. 4 Cir. 8/6/03), 854 So.2d 429.

Additionally, this court has found maximum fifty-year sentences for attempted second degree murder not excessive. See State v. Nix, 07-1431 (La.App. 4 Cir. 6/18/08), 987 So.2d 855 (the defendant’s consecutive maximum sentences of fifty years for attempted second degree murder involving an unprovoked stabbing of the victim and forty years for a manslaughter conviction by stabbing were not excessive, given the defendant’s criminal history and fact that he committed a very similar stabbing resulting in a death only a few weeks earlier); State v. Lewis, 03-1234 (La.App. 4 Cir. 6/2/04), 876 So.2d 912 (two concurrent fifty-year sentences for attempted second degree murders committed during separate armed and attempted armed robberies not excessive where the defendant was remorseless and each shooting victim endured enormous pain and suffering during multiple surgeries for their wounds, with one suffering from permanent physical problems as a result); State v. Davis, 93-663 (La.App. 4 Cir. 2/25/94), 633 So.2d 822 (two consecutive fifty-year sentences for attempted second degree murder and consecutive sentence of forty-nine and one-half years for attempted armed robbery not excessive considering injuries and complications sustained by one shooting victim and the defendant’s record of thirty three arrests, including one resulting in prior conviction for armed robbery).

This court has also found sentences of forty-nine and one-half years for attempted armed robbery not excessive. See State v. Robinson, 11-0066 (La.App. 204 Cir. 12/7/11), 81 So.3d 90; State v. Augustine, 482 So.2d 150 (La.App. 4th Cir.1986). Louisiana courts have further affirmed one-hundred year sentences for attempted second degree murder for second offenders. State v. Hills, 98-507, pp. 5-7 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217-18 (where the trial court considered the gravity of the crime and cruelty to the victim); State v. Hall, 606 So.2d 972 (La.App. 3rd Cir.1992); State v. Williams, 435 So.2d 1047 (La.App. 5th Cir.1983). In Hall, the defendant had an extensive violent history. The defendant’s disregard for the safety of the victim and others also led the sentencing judge to conclude that the sentences did not constitute cruel and unusual punishment.

While the imposition of the maximum sentences was harsh, it cannot be said that the sentences made no measurable contribution to acceptable goals of punishment, were nothing more than the purposeless imposition of pain and suffering, and were grossly out of proportion to the severity of the crime. Here, the sentences accomplished the legitimate purpose of protecting society from further action by the defendant. Since the record supports the individual sentences imposed by the trial court, we do not find that the trial court abused its discretion as it relates to the length of the sentences.

Last, the defendant argues that his sentences are excessive because they are to be served consecutively. La.C.Cr.P. art. 883 provides in part: “If the 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. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.” | ⅞1 However, when consecutive sentences are imposed for crimes arising out of the same act, the trial court must articulate particular justification for such sentences beyond a mere articulation of the standard sentencing guidelines set forth in La. C.Cr.P. art. 894.1. State v. Marcelin, 12-645, p. 19 (La.App. 4 Cir. 5/22/13), 116 So.3d 928, 939, writ denied, 13-1485 (La.1/10/14), 130 So.3d 321, cert. denied, - U.S. -, 134 S.Ct. 1951, 188 L.Ed.2d 971 (2014); State v. Williams, 11-414, p. 29 (La.App. 4 Cir. 2/29/12), 85 So.3d 759, 777, writ denied, 12-0708 (La.9/21/12), 98 So.3d 326.

Here, the eleven counts upon which the defendant was convicted arose out of the same occurrence; thus, the trial court had to set forth reasons for ordering the sentences to be served consecutively. The trial court did not provide articulated reasons for running the eleven sentences consecutively, totaling five hundred and fourteen years, instead of rently. The only express reasons the trial court gave when sentencing the defendant were directed to the one-hundred-year sentence it imposed on him as a second-felony habitual offender on one count of attempted second degree murder. Accordingly, the portion of the sentence requiring that all of the sentences be served consecutively instead of concurrently is vacated and the case is remanded for resentencing, as to the concurrent or consecutive nature of the sentences, in accordance with the law.

CONCLUSION

The defendant’s convictions and multiple offender adjudication are affirmed. The length of the defendant’s sentences in Counts I through IV and VI are affirmed. However, the sentences are vacated as it relates to them consecutive nature. The defendant’s sentences in Counts VII and XII for attempted armed robbery are vacated and remanded for resentencing to reflect the five-year firearm penalty.

| ^AFFIRMED IN PART; VACATED IN PART AND REMANDED.

      . This was the defendant’s second indictment.

      . The defendant was not tried on Count XIII.

      . In the first indictment, the trial court denied the defendant’s motions to suppress the evidence, statement, and identification. After a mistrial, the State entered a nolle prosequi just before the jury was sworn in for the second trial, because the trial court denied a continuance and one of its key witnesses was out of town. After the second indictment was filed, a mistrial was again granted. The defendant later proceeded to the instant trial. The nolle prosequi entered in the first indictment was the basis for the motion to quash filed in the instant case.

      . The record establishes that the defendant waived the mandatory delays between a ruling on a new trial motion and sentencing. See La.C.Cr.P. art. 873; and State v. Robichaux, 00-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 465.

      . In his brief, the defendant incorrectly asserts that the record lacks documentation of a ruling on the motion to reconsider sentence. The record reflects that the trial court made a ruling on December 12, 2012.

      . The bill of information refers to this witness as "Danilo Garcia.” For consistency, we will reference this witness using the name "Danilo Garcia Pavón,” as denoted in the transcript.

      . The bill of information refers to this witness as "Michell Sanchez.” For consistency, we will reference this witness using the name "Michael Sanchez Ramirez,” as denoted in the transcript.

      . While there were no drugs recovered from the home and the witnesses all negated the presence of drugs in the home, the defendant testified that he was present in the home to purchase drugs when two armed men came into the home and began fighting with a person, whom he had only known as “Panther.”

      .The trial court was required to restrict benefits on all of the sentences except those on Counts I and III. Since the minute entry contains illegal sentences on these counts, it must be corrected. Though the trial court failed to articulate any restrictions on the remaining sentences, such restrictions are self-activating and are deemed to be contained in the respective sentences with no further action required. La. R.S. 15:301.1(A); State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799; and State v. Hall, 02-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488.

      .La. R.S. 14:64.3(B) states that when the dangerous weapon used in the commission of the crime of attempted armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence, which sentence shall be consecutively to the sentence imposed under the provisions of La. R.S. 14:27 and 14:64.

      . The defendant's assignments of error are as follows: 1) the trial court erred in denying the motion to quash; 2) the sentence imposed was excessive; 2) the trial court erred in imposing consecutive sentences; and 4) the habitual offender plea is invalid.

      . The first trial resulted in a mistrial.

      . Under La.C.Cr.P art. 572(A)(1), the State had six years to institute prosecution on the instant offenses, and it instituted the indictment in less than four years.

      . The defendant also asserts that once the jurors had been selected they had a right to sit on that jury and the State “circumvented” the jurors’ rights by entering the nolle prose-qui. However, he fails to cite to any authority or otherwise show that any presumed rights of an unsworn juror overrides the constitutional and statutory authority of the district attorney. Further, this issue does not in any way implicate the defendant's right to a fair trial on the reinstituted charges.

      . In April of 2011, the State informed Mr. Guevara of the August 2011 trial date. A few days before trial was set to start, an instanter subpoena was left at his residence. The State learned that he was out of town on the first day of trial and telephoned him. He confirmed that he was in El Salvador and had forgotten about the trial date. When the trial court refused to declare him unavailable, to use his prior testimony, or grant a recess, the State dismissed the case.

      . The defendant was adjudicated a multiple offender, sentenced, and his counsel allowed tó withdraw.

      . In particular, the trial court stated: "Now, you may want to know how harsh that is, but a person’s house is their sanctuary. You came busting in somebody's house, blazing guns like in the wild west [sic] just can’t be tolerated in 2012.”


author: FAIR, J., CARLTON, J.,

text:
    Douglas DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00915-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.

      Douglas Davis, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. This appeal follows the Oktibbeha County Circuit Court’s summary dismissal of Douglas Davis’s motion for post-conviction relief (PCR). Davis was originally sentenced to serve two years in the custody of the Mississippi Department of Corrections (MDOC) followed by five years of post-release supervision. The court subsequently revoked Davis’s post-release supervision. Davis now raises the following issues: (1) the circuit court had no authority to revoke his post-release supervision for conduct that occurred while he was on earned-release supervision (ERS), and (2) his counsel was ineffective at the revocation hearing for failing to disclose he was on ERS before post-release supervision. We agree that the circuit court could not revoke Davis’s post-release supervision for misconduct that occurred while he was on ERS, but the court did have authority to revoke Davis’s post-release supervision based on an incident that occurred after he was placed on post-release supervision. Therefore, we affirm the judgment of the circuit court.

FACTS

¶ 2. On April 29, 2009, Davis appeared before the Oktibbeha County Circuit Court and pled guilty to uttering forgery. The court accepted Davis’s guilty plea and sentenced him to two years in the custody of the MDOC, followed by five years of post-release supervision. The court ordered Davis’s sentence to run consecutively to a previous sentence he was currently serving. Davis was also ordered to pay $1235.75 in restitution to the victim, along with court costs and a $200 fine.

¶ 3. On November 3, 2011, Davis was reclassified by the MDOC and placed on ERS. He was released from MDOC custody and placed on post-release supervision on August 27, 2012. On September 11, 2012, the State filed a petition to revoke Davis’s post-release supervision. The petition stated the following: (1) Davis owed $440 in supervision fees to the MDOC; (2) Davis tested positive for marijuana use on February 7, 2012, and June 14, 2012, and admitted use on September 5, 2012; and (3) Davis owed $1,743.29 to the Oktibbeha County Circuit Court.

¶ 4. The court held a revocation hearing on October 22, 2012. Davis’s counsel stated that Davis admitted to using marijuana on the three dates listed in the petition. Davis’s counsel also stated that Davis did not have a steady job. The circuit judge revoked Davis’s post-release supervision and ordered him to serve five years.

¶ 5. In his PCR motion, Davis alleged that he was illegally revoked from post-release supervision since he was released early from the prison but was still under ERS at the time he was revoked. The circuit court dismissed Davis’s motion, stating that Mississippi Code Annotated section 47-7-34 (Rev.2011) provides that a “defendant shall be placed under post-release supervision upon release from the term of incarceration.” The judge further concluded that Davis’s post-release supervision began as soon as he was released from confinement, regardless of his early release.

STANDARD OF REVIEW

¶ 6. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2013). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 7. When reviewing the dismissal of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Revocation of Post-Release Supervision

¶ 8. Davis claims that the circuit court erred when it revoked his post-release supervision. Further, he argues that the circuit court had no authority to revoke his post-release supervision for conduct that occurred while he was on ERS.

¶ 9. Davis erroneously stated in his PCR motion that his sentence was revoked while he was on ERS. The record shows that Davis was released on post-release supervision on August 27, 2012. His sentence was not revoked until October 22, 2012. However, an issue remains as to whether the circuit court had authority to revoke Davis’s post-release supervision based on conduct that occurred while he was on ERS.

¶ 10. The circuit judge stated in his order that “post-release supervision starts immediately upon release from confinement whether a defendant is released early or not.” However, this Court recently held to the contrary in Sobrado v. State, 2012-CP-00484-COA, — So.3d -, -, 2014 WL 605675, at *3 (¶ 5) (Miss.Ct. App. Feb. 18, 2014), holding that an inmate on ERS is under exclusive jurisdiction of the MDOC and therefore cannot simultaneously be on post-release supervision. This Court further explained that “[a] circuit court cannot revoke a term of post-release supervision for conduct that occurred while a prisoner is an inmate in the MDOC’s legal custody.” Id. at-, 2014 WL 605675 at *4 (¶ 18) (citing Jones v. State, 97 So.3d 1254, 1258 (¶ 11) (Miss.Ct.App.2012)). Davis was an inmate in the custody of the MDOC until he was discharged from his two-year initial sentence. He remained under the MDOC’s sole jurisdiction when he was released early from incarceration and placed on ERS. See Miss.Code Ann. § 47-5-138(6) (Rev.2011). Therefore, the court had no authority to revoke Davis’s post-release supervision based on misconduct that occurred during ERS.

¶ 11. The record shows that Davis was released on ERS on November 3, 2011. Davis tested positive for marijuana on February 7, 2012, and June 14, 2012. On August 27, 2012, Davis was discharged from the legal custody of the MDOC and placed on post-release supervision. At the revocation hearing, Davis admitted to using marijuana on September 5, 2012. The circuit court has the sole authority to revoke an offender’s post-release supervision for misconduct that occurs when an offender is on post-release supervision. See Miss.Code Ann. § 47-7-34 (Rev.2011). Undoubtedly, the court had authority to revoke Davis’s post-release supervision based on the admitted use of marijuana on September 5, 2012, alone. Therefore, this issue is without merit.

2. Ineffective Assistance of Counsel

¶ 12. Davis argues that his counsel at the revocation hearing was ineffective because he failed to disclose that Davis was on ERS during some of his violations. Specifically, Davis argues this disclosure would have resulted in a different outcome.

¶ 13. To establish ineffective assistance of counsel, Davis must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must assess the totality of the circumstances in determining whether counsel’s assistance was effective. Wiley v. State, 750 So.2d 1198, 1199 (¶ 11) (Miss.1999). And there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 14. At the revocation hearing, Davis’s counsel announced to the circuit court that Davis admitted using marijuana on the three dates cited in the petition to revoke Davis’s post-release supervision. The admission was one of the circuit judge’s reasons for revoking Davis’s post-release supervision. Davis argues that his counsel was deficient in failing to disclose that two of the incidents occurred while he was on ERS. However, the incident that occurred during Davis’s post-release supervision was enough to have his sentence revoked. And Davis has not shown that, but for the alleged error, the outcome of the hearing would have been any different. This issue is also without merit.

¶ 15. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY JAMES, J.

CARLTON, J.,

concurring in part and in result:

¶ 16. I concur in result and in part with the opinion of the majority. I concur with the majority that the circuit court possessed authority to revoke Davis’s post-release supervision based upon an incident occurring after he was placed on post-release supervision. This finding by the Court resolves the issue on appeal in this case.

¶ 17. I respectfully submit however that the majority’s further comment that post-release supervision cannot be revoked for an incident occurring while on ERS to be overly broad and also unnecessary to the disposition of the case before us. As previously stated, the circuit court herein revoked Davis’s post-release supervision due to misconduct that occurred after Davis was placed on post-release supervision, and no “incident” occurring while on ERS is at issue before us in this case.

¶ 18. I respectfully submit that the majority’s opinion over broad in finding that the circuit court possessed no jurisdiction for “incidents” occurring while the defendant was on ERS, since jurisdiction of the circuit court depends on whether the “incident” at issue constituted felonious criminal misconduct that violated the terms and conditions of the suspension or post-release supervision. The conditions of a sentence suspended by the circuit court would not include mere technical violations of the ERS-program rules that fail to constitute felonious misconduct in violation of stated conditions. If a defendant engaged in criminal, felonious misconduct while on ERS that violates the previously imposed conditions of his suspension, then the sentencing circuit court would certainly possess jurisdiction to revoke the suspended sentence for commission of such felonious conduct. If the misconduct simply constitutes a mere violation of the MDOC’s ERS program, and not a felony offense violating the previously imposed conditions of suspension, then I agree that such a technical rule violation falls within the province of the MDOC to determine.

¶ 19. I certainly agree that the MDOC possesses authority to operate and implement the MDOC intensive supervision program and its ERS program, as well as authority to determine violations of the rules of these programs by offenders. However, the MDOC’s statutory authority to regulate its programs for offenders fails to divest the circuit court of its original jurisdiction to determine if the lawful conditions of a suspended sentence were breached by any felonious conduct of an offender. If a sentencing circuit court bases a suspended sentence, or post-release supervision, upon a condition of good behavior, a defendant thereafter breaches that condition by the commission of a crime. As acknowledged by our supreme court in Fuller v. State, 57 So. 6, 8 (Miss.1912), the sentencing trial court possesses inherent power to suspend a sentence on the condition of good behavior — and that condition is violated by any subsequent criminal conduct by the defendant. See also Johnson v. State, 925 So.2d 86, 103 (¶ 32) (Miss.2006) (acknowledging authority of circuit and county courts to suspend convicted felon’s sentence).

¶ 20. The Fuller court found that our state constitution authorizes the circuit court’s inherent authority and jurisdiction. Id. Indeed, Article 6, Section 156 of the Mississippi Constitution establishes original jurisdiction in the circuit courts over all matters criminal and civil matters in this state not vested by the constitution in some other court. Mississippi Code Annotated section 47-7-29 (Rev.2011) establishes the authority to prosecute a prisoner for felonies committed while on ERS, and in so doing, this statute acknowledges the circuit court’s jurisdiction to impose sentences on offenders for felonies committed while on ERS. Since statutes in pari materia are to be construed together, then logically the circuit court also possesses authority to revoke a suspended sentence for the commission of a felony while on ERS. See generally Miss. Dep’t. of Transp. v. Allred, 928 So.2d 152, 155 (¶ 16) (Miss.2006).

¶ 21. The majority cites to Mississippi Code Annotated section 47-5-138(6) (Supp. 2013) for the asserted proposition that Davis remains under the MDOC’s “sole” jurisdiction when released from incarceration and placed in the MDOC’s ERS program. As stated, I certainly agree that section 47-5-138(6) gives the MDOC the authority to promulgate ERS rules and regulations, as well as the jurisdiction to operate the ERS program for offenders sentenced to MDOC custody. I also certainly agree that this statute gives the MDOC authority and jurisdiction to determine if an inmate violated the rules of the MDOC’s ERS program, and the authority and jurisdiction to determine whether an inmate may be released early for his successful completion of the requirements of the MDOC’s ERS program. However, this statute fails to divest the sentencing circuit court of its original jurisdiction and inherent constitutional authority to revoke a previously suspended sentence, or post-release supervision, due to a breach of conditions of the suspension, such as commission of criminal felonious misconduct.

¶ 22. With respect to divestiture of jurisdiction, our supreme court’s precedent holds that existing jurisdiction is not to be inferred as having been withdrawn where the constitutional or legislative pronouncement of the withdrawal of jurisdiction is not clear and unambiguous. See Fuller, 57 So. at 8. We should therefore not infer that jurisdiction has been withdrawn in this case, or abdicate judicial powers and duties, since no constitutional or legislative pronouncement of such withdrawal exists to divest the circuit court of its original jurisdiction, at the relevant times applicable to this case. Id. (“The Legislature cannot authorize courts to abdicate their own powers and duties’^.] ).

¶ 23. The court in Arant v. Hubbard, 824 So.2d 611, 614 (¶ 12) (Miss.2002) (citation omitted), explained that the “the language of an act designed to divest a court of its jurisdiction must express the intent with such clearness as to leave no room for doubt.” The Arant court then found that the statute at issue in that case failed to clearly and unambiguously provide that jurisdiction was to be divested from the circuit court. Therefore the Arant court calculated that the act at issue established concurrent, not exclusive, jurisdiction by also vesting the justice court with that jurisdiction. Id. at 615 (¶¶ 13-14). The Texas Criminal Court of Appeals cited Fuller in its discussion of Snodgrass v. State, 67 Tex.Crim. 615, 150 S.W. 162, 166, 178 (1912), explaining that judicial construction cannot affect the supreme law embodied in our constitution and “constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another.”

¶ 24. I therefore respectfully submit that the majority opinion is overly broad and unnecessary in finding that a sentencing circuit court lacks jurisdiction in a criminal case to revoke a previously suspended sentence, or post-release supervision, for an “incident” on ERS. Since the jurisdiction issue involves consideration of whether the incident committed constituted a mere violation of the MDOC’s technical rules, or whether the misconduct constituted a felony violating the previously imposed conditions of the suspension. Again, the MDOC certainly possesses statutory authority to determine whether a violation of the ERS program’s rules and regulations occurred, but the MDOC’s authority over its programs fails to divest the circuit court of its jurisdiction. Section 156 of the Mississippi Constitution establishes original jurisdiction in criminal matters with the circuit court, and nothing in section 47-5-138 divests the circuit court of its jurisdiction. Accordingly, I concur in part and in result with the decision of the majority.

JAMES, J., JOINS THIS OPINION IN PART.

      . This separate opinion includes no comment as to the application of the 2014 amendments of Mississippi’s sentencing statutes as set forth in House Bill 585, section 54, since they were not in effect during the time periods relevant to this case. House Bill 585 section 54, to be codified in chapter 7 of title 47 of the Mississippi Code, gives the MDOC authority to impose graduated sanctions as an alternative to judicial modification or revocation, as provided in Mississippi Code Annotated sections 47-7-34 (Rev.2011) and 47-7-37 (Rev.2011). In this bill, the Legislature also provides that the Act takes effect from and after July 1, 2014.

      . The circuit court would possess such jurisdiction until completion of the sentence originally imposed by the court.

      . Miss.Code Ann. § 47-7-34(b) (Rev.2011) (period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including the requirement that the defendant abide by any terms and conditions as the court may establish; failure to abide by such terms and conditions shall be grounds to terminate the period of post-release supervision); Miss.Code Ann. § 47-7-35 (Rev.2011) (permissible conditions of probation or post-release supervision); see Pickett v. State, 751 So.2d 1031, 1032-33 (¶¶ 9-10) (Miss.1999); Crabb v. State, 55 So.2d 485, 485 (Miss.1951) (In a habeas proceeding determining the validity of the revocation of the suspension of sentences, a petitioner’s breach of a condition of good behavior upon the suspension of the sentences was not required to be shown beyond a reasonable doubt).

        .Leonard v. State, 271 So.2d 445, 447 (Miss.1973) (during period of probation, power of court continues to vest in sentencing court to subsequently impose sentence if defendant violates conditions of probation); see also Miss. Att'y Gen. Op., 2003-0113, 2003 WL 21003307, McCormick (Mar. 28, 2003) (circuit court possesses authority to impose conditions to a suspended sentence, including participation in community-service program).

      . Pickett, 751 So.2d at 1032-33 (¶ 10) (The supreme court held that a defendant’s suspended sentence could be revoked even though he had not been placed on probation where that suspended sentence was conditioned upon the defendant's good behavior, the defendant knew of that condition, and the defendant clearly violated that condition.).

      . I also agree that courts are statutorily prohibited from requiring the completion of the intensive supervision program as a condition of probation or post-release supervision. If an inmate violates a condition of the intensive supervision program, like the ERS program, then the MDOC possesses jurisdiction to determine whether a violation of the rules of that MDOC program occurred. Again, the MDOC operates the ERS program and determines if an offender violates the rules of that program. However, if an offender violates the conditions of that program by criminal misconduct, where that misconduct violates not only the rules of that MDOC program but also violates Mississippi criminal statutes and breaches a condition of a previously suspended sentence, or post-release supervision, then I submit that the sentencing trial court retains and possesses inherent authority to revoke its previously suspended sentence. The sentencing trial court possesses th (Rev.2011) is inherent authority until completion of the sentence. See Miss.Code Ann. § 47-5-1003 (prohibits requirement of completion of intensive supervision program as condition of probation or post-release supervision); compare Leonard v. State, 271 So.2d 445, 447 (Miss.1973) (during period of probation, power of court continues to vest in sentencing court to subsequently impose sentence if defendant violates conditions of probation); Crabb, 55 So.2d at 485 (breach of condition of good behavior not required to be shown beyond reasonable doubt); Fuller, 57 So. at 6 (court possesses inherent power to suspend sentence on condition of good behavior that is violated by subsequent criminal conduct).

        .See Miss.Code Ann. § 47-7-33 (Rev.2011); Evans v. State, 846 So.2d 301, 303 (¶ 6) (Miss. Ct.App.2003); Reaves v. State, 749 So.2d 295, 296-97 (¶¶ 6-7) (Miss.Ct.App.1999).

      . As noted, this separate opinion does not address or comment upon the 2014 amendment to sentencing statutes that will take effect July 1, 2014.

      . See Miss. Const, art. 6, § 156 (providing that a circuit court possesses original jurisdiction in all criminal matters in this state not vested in some other court).

      . Once the defendant is placed on probation, he is, according to section 47-7-33, under the supervision of the MDOC, and violation of the probationary conditions does not remove the defendant from that supervision; rather, the defendant remains under the MDOC’s supervision until further action is taken by the court, such as revocation of probation and imposition of the suspended sentence or continuance of the probation. Miss. Att’y Gen. Op., 1989-503246, 1989 WL 503246, Black (June 19, 1989).


author: LEE, C.J.,

text:
    In the Interest of J.M.S., a Minor.
    No. 2013-CA-00792-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.
    Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. J.M.S. was convicted of simple assault and was sentenced to one day in the DeSoto County Juvenile Detention Facility, restitution of $387.76, and ten months of supervised probation, during which time she was required to complete an anger-management course. Also, J.M.S.’s mother was ordered to pay a fine of $100. The disposition was stayed pending a final ruling on appeal.

¶ 2. J.M.S. is represented by the Indigent Appeals Division of the Office of the State Public Defender. J.M.S.’s appellate counsel filed a brief with this Court pursuant to Lindsey v. State, 939 So.2d. 743 (Miss.2005), stating no arguable issues existed for appeal. J.M.S.’s appellate counsel also confirmed that he sent a copy of his brief to J.M.S., along with correspondence informing J.M.S. that he found no arguable issues in the record to raise as error, and that J.M.S. had a right to file a pro se brief to raise any perceived errors. Upon review, we find no error and affirm.

FACTS

¶ 3. J.M.S. and A.W., both minors, were involved in an altercation on a school bus leaving Center Hill High School. A.W. testified that J.M.S. asked her to move her things. J.M.S. then hit her several times, which “busted” her lip. J.M.S. testified that A.W. had called her several racial slurs before she hit A.W. several times. J.M.S. also testified that A.W. had previously mocked her and tripped her on the bus a week prior to the incident. A.W. stated that she did not intend to trip J.M.S.

¶ 4. Although the incident was witnessed by several people, no witness testified that he heard A.W. use any racially pejorative language. The DeSoto County Youth Court found that the simple assault was uncontested and that J.M.S. did not act in self-defense. She now appeals.

DISCUSSION

¶ 5. In Lindsey, 989 So.2d at 748 (¶ 18), the Mississippi Supreme Court set forth the process to follow when appellate counsel for an indigent criminal defendant concludes no arguable issues exist on appeal. Specifically, the Lindsey court stated:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7); see also [Smith v.] Robbins, 528 U.S. [259,] 280-81, 120 S.Ct. 746, [145 L.Ed.2d 756 (2000) ] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted).

¶ 6. J.M.S.’s attorney stated he diligently and thoroughly scoured the record, searching for any arguable issues that could be presented in good faith on appeal; however, he found none. J.M.S.’s attorney asserted that he specifically examined: (1) the reason for J.M.S.’s arrest and the surrounding circumstances of the arrest; (2) any possible violation of J.M.S.’s right to counsel; (3) the entire trial transcript; (4) all rulings of the trial court; (5) possible prosecutorial misconduct; (6) all exhibits, whether admitted into evidence or not; (7) possible misrepresentation of the law in sentencing; (8) the intake order, petition, and summons and all pleadings in the record; (9) any possible ineffective-assistanee-of-counsel issues; (10) any speedy-trial issues; (11) sentencing and/or adjudication and disposition issues; and (12) any other possible reviewable issues. J.M.S.’s counsel did not examine any jury instructions, as there was no jury in this proceeding.

¶ 7. J.M.S.’s counsel requested an additional forty days for J.M.S. to file a pro se brief, should she so desire. The Mississippi Supreme Court granted that request giving J.M.S. until December 18, 2018, to file a pro se brief. J.M.S.’s counsel also stated he sent a copy of the brief along with correspondence informing J.M.S. that he found no arguable issues in the record and advising J.M.S. of her right to file a pro se brief. J.M.S. did not file a pro se brief. Also, we have carefully examined the record and find no error justifying reversal; therefore, we affirm.

¶ 8. THE JUDGMENT OF THE DE-SOTO COUNTY YOUTH COURT OF CONVICTION OF SIMPLE ASSAULT AND SENTENCE OF ONE DAY IN THE DESOTO COUNTY JUVENILE DETENTION FACILITY, WITH TEN MONTHS OF SUPERVISED PROBATION, AND A FINE OF $387.76, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . For confidentiality, we have used initials for the minors’ names in this opinion.