text:
    Drew BLATCHER v. BRAND STAFFING SERVICES, INC.
    No. 12-CA-345.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Lloyd N. Frischhertz, Jr., Attorney at Law, Frischhertz, Poulliard, Frischhertz & Impastato L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Leslie E. Hodge, Lindsay F. Louapre, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

12Plaintiff, Drew Blatcher, appeals from a judgment of the Office of Workers’ Compensation finding he failed to prove a work-related injury and, thus, was not entitled to workers’ compensation benefits. For the reasons that follow, we affirm.

Plaintiff filed a Disputed Claim for Compensation on April 20, 2010, seeking workers’ compensation benefits for a back injury he allegedly sustained on August 3, 2009, while in the course and scope of his employment with Brand Staffing Services, Inc. (“Brand Staffing”). He asserted his back “gave out” after he continually lifted 100-150 lb. scaffold boards using a rope while leaning over from a height of 75-100 feet. He alleged that despite the work-related injury, his employer had failed to pay any indemnity or medical benefits. Brand Staffing | .¡responded by claiming Mr. Blatcher did not sustain an accident or injury within the meaning of the Louisiana Workers’ Compensation Act.

Trial was held on September 7, 2011. At the beginning of trial, the parties stipulated that Mr. Blatcher was employed by Brand Staffing on the date of the alleged injury. Mr. Blatcher, age 34, testified he was employed by Brand Staffing to build scaffolds and had been so employed for a little less than one year before the accident. He explained that his job involved standing on the edge of a scaffold and pulling materials, including 100 lb. boards, from at least 20 feet below, up and over the scaffold rail.

Mr. Blatcher testified that two weeks before his accident, his back started hurting, but he was able to work. On the day of the accident, Mr. Blatcher reported to work at the Valero’s chemical plant and started work at 7:00 a.m. He stated that right before lunch his back gave out while he was pulling a metal board over the railing, which caused him to fall to his knees. He managed to climb down the scaffolding and walk to a break area, or the “smoke pen,” where someone called his supervisor, Davin Louque, who then called the safety manager, Jose Sardina.

According to Mr. Blatcher, when Mr. Louque and Mr. Sardina asked what happened, he stated that his back “went out.” They then asked him if he had any prior back problems to which Mr. Blatcher responded that he had back surgery ten to 12 years earlier. Mr. Sardina testified that Mr. Blatcher never told him that his back “went out” or that he injured his back while working. Rather, Mr. Sardina stated that Mr. Blatcher only said he had been having back pain for the last couple of weeks.

Mr. Sardina took Mr. Blatcher to the nurse’s station on Valero’s premises. According to Mr. Blatcher, he was again asked what happened, and he again stated 14that his back “went out.” He was told to see a doctor and to return to work once he obtained a doctor’s release. Mr. Sardina then drove Mr. Blatcher home.

The next morning, Mr. Blatcher went to the emergency room at Ochsner Medical Center — Kenner complaining of mild to moderate back pain. The medical records indicate his back pain began two weeks earlier and was not due to a recent injury. Mr. Blatcher gave a history of prior back surgery for three ruptured discs. He was given medication and instructed to follow up with his doctor.

More than two months later, on October 15, 2009, Mr. Blatcher went to the emergency room at Interim LSU Public Hospital complaining of numbness in his right leg, which according to the medical records began two months earlier with no new trauma. The medical records indicate Mr. Blatcher explained he had prior back surgery in 2000 for ruptured discs that caused the same problem in his left leg. He was given medication and an MRI was ordered. He underwent the MRI three months later which showed an L4-L5 disc desiccation and broad based protrusion towards the right and a central disc protrusion at L5-Sl. Over the next several months, Mr. Blatcher made several more emergency room visits complaining of back pain. Each time, he was given medication and instructed to follow up with his primary care physician. Mr. Blatcher explained that he did not follow up with any doctors because he did not have health insurance to pay for the visits or treatment.

On December 8, 2010, Mr. Blatcher was seen by Dr. Rand Voorhies, a neurosurgeon, at defense counsel’s request. According to Dr. Voorhies, Mr. Blatcher indicated he strained his back on the job one year and three months earlier and, as a result, he has gone to the emergency room ten to 15 times seeking 15 treatment. After reviewing the MRI done in January 2010, Dr. Voorhies believed Mr. Blatcher suffers from a right sided disc herniation at L4-L5. Dr. Voorhies recommended epidural steroid injections or surgery, if the injections did not provide symptomatic relief.

During trial, Mr. Blatcher explained that he has worked heavy manual labor his entire life. He testified that he had back surgery more than ten years earlier, but stated the surgery was successful and he has been able to work without a problem since then. Mr. Blatcher admitted to being involved in a motorcycle accident in 2000, and an incident where he was hit in the head with a baseball bat in 2009, but denied any of these accidents caused any back injury or pain. Mr. Blatcher further admitted that he received unemployment benefits after the accident at Valero. The record shows he received these benefits from March 4, 2010 through September 20, 2010.

At the conclusion of trial, the trial court gave the parties an opportunity to file post-trial memoranda. On November 16, 2011, the trial court rendered judgment against Mr. Blatcher finding he did not prove a work-related injury occurred on August 3, 2009. The trial court did not give reasons for its judgment. Mr. Blatcher filed this appeal claiming the trial court was manifestly erroneous in its conclusion. He specifically argues the trial court erred in failing to find the aggravation or acceleration of a pre-existing condition is a compensable disability under the Louisiana Workers’ Compensation Act (LWCA).

An employee seeking workers’ compensation benefits must prove “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). The LWCA defines an accident as “an unexpected or unforeseen | (¡actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 28:1021(1). Where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of La. R.S. 28:1021(1). Begue v. Crossover, Inc., 03-267 (La.App. 1 Cir. 11/21/03), 868 So.2d 100, 105.

The employee in a workers’ compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.7/2/12), 93 So.3d 1253, 1257. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11), 56 So.3d 215, 219, citing Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

In determining whether a worker has discharged his burden of proof, the fact-finder “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony.” Marange, supra. The fact-finder’s determination as to whether the worker’s testimony is credible and whether the worker has discharged his 17burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Marange, 93 So.3d at 1257-58. If the trial court’s findings are reasonable in light of the entirety of the record, the appellate court may not reverse. Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Ricks v. Odyssey Health Care, 10-1099 (La.App. 5 Cir. 10/25/11), 77 So.3d 386, 389.

Upon review of the record, we find no manifest error in the trial court’s conclusion that Mr. Blatcher failed to sustain his burden of proof. Although Mr. Blatcher testified that his back “went out” when he was lifting a board over the railing on August 3, 2009, the record shows he never told either Mr. Louque, Mr. Sardina or the nurse that his back “went out” while he was performing his job duties. Mr. Lou-que’s statement, given on the day of the alleged accident, shows he was advised by the foreman that one of Brand’s employees was sitting by the warehouse complaining that his back was hurting. When Mr. Louque checked on Mr. Blatcher, Mr. Blatcher said his back had been hurting for two weeks and had worsened. Mr. Sardina’s statement, also given on the day of the alleged accident, likewise shows Mr. Blatcher stated his back had been hurting him for two weeks with no mention of any injury suffered while performing his job duties. According to Mr. Sardina, the on-site nurse determined Mr. Blatcher’s back pain was personal in nature and not work-related.

Additionally, Mr. Blatcher’s own statement, given on the day of the alleged accident, does not relate the worsening of his back pain to any particular activity. Rather, he stated, “My back [sic] been hurting for 2 weeks now and its [sic] getting worse 2 [sic] the point that I cant [sic] walk.” He further noted he had back | «surgery 12 years ago for ruptured discs “that sat on my nerves down my left leg,” and indicated “now its [sic] going down my right leg.”

Furthermore, the medical records in the first few months following the alleged accident do not mention any accident or trauma nor do they show that Mr. Blatcher related his back pain to lifting a board over a railing at work. The Ochsner medical records from August 4, 2009 show that Mr. Blatcher indicated his back pain started two weeks earlier. It specifically noted that there had been no recent injury. The LSU medical records from October 15, 2009 simply states Mr. Blatcher’s back pain began two months ago with no mention of a work-related injury. The first mention of any work-related injury appears in an Ochsner medical record dated April 23, 2010, which was eight months after the alleged accident and after Mr. Blatcher initiated this lawsuit.

The record also shows Mr. Blatcher has been less than truthful in the past. In particular, after his 2000 back surgery, he failed to note the surgery on a post-hire medical questionnaire. On the same questionnaire, he stated he had never had any back problems or an injury to his back despite his back surgery and a previous work-related back injury for which he sought medical treatment. Also, in obtaining unemployment benefits, Mr. Blatcher admitted he did not disclose his injury or disability, but rather might have told the agency he had been laid off, which he admitted was not the truth.

Accordingly, we cannot say the trial court was manifestly erroneous in finding Mr. Blatcher did not carry his burden of proving that his back pain resulted from a work-related accident.

\ ¡¡DECREE

For the foregoing reasons, the trial court’s judgment finding claimant, Drew Blatcher, failed to carry his burden of proving a work-related accident and denying him workers’ compensation benefits is affirmed. Each party is to bear his own costs for this appeal.

AFFIRMED

      . Plaintiff erroneously referred to the alleged accident date as August 4, 2009. The record indicates plaintiffs alleged accident occurred on August 3, 2009; thus, all references to the accident date in this opinion will be to August 3, 2009.

      . The record does not contain documentation for all these emergency room visits, but rather indicates Mr. Blatcher sought treatment in the emergency room on five occasions between his alleged accident and the time he saw Dr. Voorhies.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cesar A. LOBO.
    No. 12-KA-271.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Scott U. Schlegel, Assistant District Attorneys, ' Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERTA. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2On October 25, 2011, this Court affirmed defendant’s conviction for sexual battery in violation of La. R.S. 14:43.1 but remanded the matter for a ruling on defendant’s previously filed motion to reconsider sentence. Defendant now appeals the trial court’s denial of that motion, claiming that his eight-year sentence is unconstitutionally excessive. We affirm.

Statement of the Case

On March 8, 2010, a six-person jury found defendant, Cesar Lobo, guilty of sexual battery in violation of La. R.S. 14:4s.!. On March 18, 2010, the trial court sentenced defendant to eight years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On March 26, 2010, defendant filed a motion to reconsider sentence. Defendant appealed his conviction and sentence Land on October 25, 2011, this Court affirmed his conviction but remanded the matter to the trial court for a ruling on defendant’s outstanding motion to reconsider sentence. State v. Lobo, 11-51, pp. 2-3 (La.App. 5 Cir. 10/25/11), 77 So.3d 427, 430, writ denied, 11-2586 (La.3/30/12), 85 So.3d 117.

On October 31, 2011, the trial court denied defendant’s motion to reconsider sentence. On November 3, 2011, in a nunc pro tunc order, the trial court sentenced defendant to eight years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This timely appeal follows.

Factual Background

The factual background developed at trial was provided in this Court’s previous opinion:

On June 6, 2009, the victim, A.R., (born in Mexico), C.E., the victim’s boyfriend, (from Honduras), and Mr. Lobo, (Mr. C.E.’s uncle [sic]), agreed that they, along with others, attended a party at A.R. and C.E.’s Kenner apartment.
A.R. testified that day Mr. Lobo, his wife and his young daughter were pres-ente ] [a]long with Mr. Lobo’s sister, and his sister’s husband as well as a friend. According to A.R. and C.E., some of the other partygoers, including Mr. Lobo, began playing card games; however, A.R. (the victim) did not participate because she left the party to go to sleep. According to A.R., she left at 11:00 p.m.
It is undisputed that people were also drinking at the party. A.R. admitted that she drank “three daiquiri bottles” throughout the night, but she was not intoxicated. A.R. further explained that she slept in the dark with the light off, and a thick blanket she threw over the window to further |4darken the room. When she went to sleep for the night, she left her bedroom door open. A.R. stated that there was one upstairs and one downstairs bathroom and people at the party were using the upstairs bathroom throughout the night. In addition, she and C.E. testified that there was a bottle of liquor in the bedroom where she was asleep.
Subsequently, the victim woke with Mr. Lobo on top of her. Her pajamas were no longer on, her pants were down by her knees, and Mr. Lobo was “abusing [her].” She specifically stated that Mr. Lobo was “penetrating [her] vagina,” and that she was menstruating at the time. She further explained that she was sleeping “profoundly,” and she did not know why or when Mr. Lobo entered her room, or how long he was in the room before she awoke. When she felt someone kissing her, she initially thought it was her boyfriend, because he was the only person who enters her bedroom or touches her. But, she realized it was not her boyfriend when she touched his arm, because her boyfriend was wearing a short-sleeved shirt and Mr. Lobo was wearing a long-sleeved shirt. She then told Mr. Lobo he was not C.E. and threw him off of her. She testified that she had not given Mr. Lobo consent to touch her vagina.
C.E. testified that Mr. Lobo left the card table and went to the upstairs bathroom and later returned. Then, Mr. Lobo left the table again, without telling anyone where he was going. At some point, Mr. Lobo’s wife expressed concern about his whereabouts. L.L., (Mr. Lobo’s sister), D.D., (Mr. Lobo’s wife) and J.E.B. (Mr. Lobo’s brother-in-law) testified that they attended the party and Mr. Lobo was absent from the card game less than five minutes.
C.E. stated that when C.E. was looking for Mr. Lobo, C.E. heard a thump when he (C.E.) was walking towards the stairs. “[They] couldn’t find [Mr. Lobo] anywhere, and his car was still there, and [C.E.’s room] was the last place to look.”
| sA.R. and C.E. testified that C.E. came up the stairs, and opened the then locked bedroom door with a key. C.E. testified that when he entered the darkened bedroom and turned on the lights, he saw Mr. Lobo on the floor trying to pull up his pants, including his underwear. A.R. and C.E. stated that Mr. Lobo then said: “hit me, hit me.” In his statement to the police, Mr. Lobo admitted saying that and explained that he felt he had failed his uncle.
C.E. admitted that he did not see Mr. Lobo on top of the victim and he did not know what happened in the room before he walked in. C.E. threw Mr. Lobo out of the apartment.
A.R. testified that after the incident, C.E. placed the bedding sheets and A.R.’s clothes, which had blood on them, in a bag. A.R. and C.E. testified that, they did not call the police on the night of the incident because of family concerns. In addition, A.R. stated that she did not call immediately because everyone was blaming her. However, C.E. and A.R. stated that they went to two churches for help and thereafter called the police.
A.R. specifically testified that she did not give Mr. Lobo permission to touch her. The incident continues to affect her. C.E. testified that A.R. was in shock after the incident. A.R. testified that she fears the dark and now locks rooms within the apartment, something she never did before.
In his statement [to officers], Mr. Lobo admitted that he went into the darkened upstairs bedroom to get alcohol and he closed the door. He further stated that he got on top of A.R. and he kissed her. A.R. began unbuttoning his shirt and he started taking her shirt off. Then she started pulling his pants down. At this point, he was kissing her neck and everything. However, he denied that he had an erection or penetrated her. He thought that A.R. believed that he was A.R.’s boyfriend. However, |fiwhen he kissed her she stated that she thought he was C.E. and said “no, no.” She also started crying. At first Mr. Lobo said she pushed him but later he denied that she pushed him. Nevertheless he stated he fell. Since they were on the second floor, the others in the residence heard him fall. He had blood on his body somewhere below his belly button but above his penis from the menstruating victim. He also stated that his hand had blood on it possibly by his touching his stomach. When asked whether he penetrated her vagina, he replied: “Uh, not really because touching it. But not really. I did not penetrate.” Detective Hoffman testified that Mr. Lobo admitted that his penis and stomach area touched the victim’s vagina but that the penis never penetrated the vagina.

Lobo, 11-51, pp. 3-7 (La.App. 5 Cir. 10/25/11), 77 So.3d at 430-33.

Assignment of Error

Defendant claims that the eight-year sentence imposed by the trial judge is excessive and, thus, the trial court erred in denying his motion to reconsider sentence. Specifically, defendant claims the trial judge did not articulate its reasons for the sentence imposed and failed to comply with the mandate of La.C.Cr.P. art. 894.1. Defendant further complains that the facts of this case do not support his sentence, which is eighty percent of the maximum sentence allowed by law. Defendant states that the sentence imposed is excessive where defendant was a first-time offender, the case does not involve juvenile or multiple victims, and defendant used no severe physical violence against the victim.

The test for a reviewing court to determine if a sentence is excessive is a two-prong inquiry. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. Second, a constitutional inquiry as to the excessiveness of the sentence follows.

First, La.C.Cr.P. art. 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing a |7sentence. State v. Sanders, 98-855, p. 5 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 1999-1980 (La.1/7/00), 752 So.2d 175. The trial judge is not required to list every aggravating or mitigating circumstance applicable to the defendant as long as the record reflects that the trial judge adequately considered the guidelines of the article. The articulation of the factual basis for the sentence is the goal of the article, not rigid compliance with its provisions. Id. However, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in La.C.Cr.P. art. 894.1 does not require a remand for resentencing. Id; see also State v. Evans, 09-477 (La.App. 5 Cir. 12/29/09), 30 So.3d 958, 965-66, writ denied, 2010-0363 (La.3/25/11), 61 So.3d 653.

In this case, the trial judge did not articulate each circumstance contained in La.C.Cr.P. art. 894.1 when he imposed defendant’s sentence. However, the court did state that “a lesser sentence would decrease the severity of your (defendant’s) crime.” We find the trial judge sufficiently complied with the goal of La.C.Cr.P. art. 894.1 and set forth a factual basis for the sentence imposed. Further, the record fully supports the sentence imposed; thus, any potential error in the trial court’s failure to articulate each factor provided in La.C.Cr.P. art. 894.1 is harmless and would not require resentencing in this case.

Second, the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Horne, 11-204, pp. 10-11 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 2012-0556 (La.6/1/12), 90 So.3d 437 and State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 2000-1371 (La.2/16/01), 785 So.2d 839. The trial judge is afforded broad discretion in sentencing and a reviewing court may not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D); State v. Berry, 08-151, p. 17 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 2008-1660 (La.4/3/09), 6 So.3d 767; and State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. The review of sentences under Louisiana Constitution Article 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. State v. Williams, 07-1111, p. 1 (La.12/7/07), 969 So.2d 1251, 1252 (per curiam) and State v. Hearn, 09-434 (La.App. 5 Cir. 12/29/09), 30 So.3d 873, 878. Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. State v. Woods, 09-399, p. 26 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 411, writ denied, 2010-0784 (La.10/29/10), 48 So.3d 1096.

In reviewing a sentence for exces-siveness, an appellate court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992). On review, an appellate court does not determine whether another sentence might have been more appropriate, but whether the trial court abused its discretion. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d at 656 and Horne, 11-204, p. 11 (La.App. 5 Cir. 2/14/12), 88 So.3d at 569.

At the time of the offense, La. R.S. 14:43.1(C)(1) provided: “Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.” Therefore, defendant’s eight-year sentence falls within the statutory limits provided by La. R.S. 14:43.1. However, the imposition |9of a sentence, although within the statutory limits, may still violate a defendant’s constitutional right against excessive punishment. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1, 4. In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by other courts. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d at 569.

Concerning the first factor, the nature of the crime, the evidence presented at trial shows that defendant acted without provocation and took advantage of a sleeping woman in her own bed without her consent. The victim testified that defendant penetrated her vagina and that she never gave defendant permission to touch her. The incident continues to affect the victim, A.R., who testified that since the incident she now fears the dark and locks rooms within her apartment, something she never did before.

Next, regarding the nature and background of the offender, the record reflects that defendant has a criminal history. Prior to trial, the state filed a notice of intent to use evidence of other crimes. The state sought to introduce evidence that defendant was previously arrested for masturbating in the presence of a female citizen while operating a motor vehicle in violation of La. R.S. 14:106. Further, the sentencing transcript in the record reflects that — on the same date that defendant was sentenced for the instant offense — separate counsel appeared before the court on behalf of defendant to plead guilty to an unrelated offense. Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 03-581 (La.App. 5 Cir. 11/12/03), 861 So.2d 644, 654, writ denied, 2003-3407 (La.4/2/04), 869 So.2d 875 and writ denied sub nom. State ex rel. Brown v. State, 2004-0049 (La.4/2/04), 869 So.2d 877.

Finally, considering sentences imposed by other courts, the Second Circuit Court of Appeal has recently affirmed an eight-year sentence for a sexual battery conviction under facts similar to those presented in this case. In State v. Jones, 45,450 (La.App. 2 Cir. 8/11/10), 46 So.3d 711, the defendant and the victim, along with a group of friends, met at a bar for drinks. The victim became intoxicated and passed out. The group left the bar and went to a friend’s apartment; the victim at that time was still unconscious and was carried into a bedroom in the apartment. Later in the evening, another friend walked into the bedroom to retrieve something and witnessed the defendant having sex with the victim while she was still passed out.

After a jury trial, the defendant was found guilty of sexual battery and sentenced to eight years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On appeal, the Second Circuit affirmed the defendant’s conviction and sentence. The court stated that the trial court, in sen-fencing the defendant, considered that he acted without provocation and caused severe emotional and actual harm to the victim. Further, although he was a first-time offender, if the defendant did in fact penetrate the victim’s vagina as claimed, then the defendant’s actions likely amounted to the higher charge of simple rape. Jones, 45,450 (La.App. 2 Cir. 8/11/10), 46 So.3d at 712-714.

Similarly, in the instant case, defendant acted without provocation by touching a sleeping woman in her own bed without her consent and caused actual and emotional harm to A.R. as reflected in her testimony. Further — if he did in |nfact penetrate A.R.’s vagina as she claimed in her testimony — defendant’s actions would rise to the higher charge of simple rape.

Considering the nature of defendant’s actions and the lifelong impact those actions will have on the victim, A.R., we find that the trial court did not abuse its discretion in imposing defendant’s eight-year sentence of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Therefore, we find the trial court did not abuse its discretion in denying defendant’s motion to reconsider sentence.

Errors Patent Review

In his original appeal, defendant received an errors patent review. In our October 25, 2011, opinion, this Court found minor errors patent, which were addressed by this Court. Defendant is not entitled to a second errors patent review of the matters encompassed in the first appeal. See State v. Taylor, 01-452, p. 10 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426. He is limited to an errors patent review of the proceedings on remand. State v. Evans, 09-477 (La.App. 5 Cir. 12/29/09), 30 So.3d 958, 969, writ denied, 2010-0363 (La.3/25/11), 61 So.3d 653 and State v. Chisley, 06-900 (La.App. 5 Cir. 4/24/07), 957 So.2d 226, 229, writ denied, 07-1828 (La.6/6/08), 983 So.2d 911. The trial court’s record developed on remand following this Court’s October 25, 2011 opinion reveals no errors patent.

AFFIRMED

      . The state initially charged defendant with simple rape in violation of La. R.S. 14:43; a few months before trial, the state amended the bill of information to charge defendant with sexual battery, a lesser charge.

      . We held that after judgment on defendant’s outstanding motion to reconsider, defendant could re-lodge his appeal within a specified time. Lobo, 11-51, p. 18 (La.App. 5 Cir. 10/25/11), 77 So.3d at 438.

      .In compliance with La. R.S. 46:1844, several names are replaced with initials to protect the victim’s identity.

      . According to the record, Mr. Lobo is Mr. C.E.'s nephew, rather than his uncle as stated in the original opinion.

      . The defendant in Jones was charged with simple rape; however, the jury returned a verdict of guilty of sexual battery, a lesser charge.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Terence L. POLLARD.
    No. 12-KA-346.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Pefendant, Terence Pollard, appeals his convictions for armed robbery and felon in possession of a firearm on the basis he was incompetent to stand trial. He also appeals his adjudication as a second felony offender on the basis of insufficient evidence. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On November 14, 2008, defendant was charged with armed robbery with a firearm in violation of La. R.S. 14:64 and 14:64.3 (Count 1) and attempted first degree murder in violation of La. R.S. 14:30 and 14:27 (Count 2). He pled not guilty and proceeded to trial on September 15, 2009; however, a mistrial was declared after defendant “acted out” in open court in front of the prospective jurors. The next day, a competency hearing was held, after which the trial judge ^ordered that defendant be remanded to the Eastern Louisiana Mental Health System for further observation.

On December 8, 2010, a second competency hearing was held, and the trial judge found defendant competent to stand trial. The case proceeded to trial a second time on February 22, 2011; however, the trial judge declared a mistrial after defendant slit his throat with a razor in open court. The next day, the State dismissed Count 2 of the bill of information.

On April 6, 2011, a third competency hearing was held, after which defendant was found competent to stand trial. Thereafter, the State amended the bill of information to add the charge of felon in possession of a firearm in violation of La. R.S. 14:95.1. Defendant was re-arraigned on the amended bill and pled not guilty. He again proceeded to trial on August 16, 2011. After a three-day trial, a 12-person jury found defendant guilty as charged on both counts: armed robbery and felon in possession of a firearm. The trial judge sentenced him to 50 years at hard labor for his armed robbery conviction and ten years for his felon in possession of a firearm conviction. Both sentences were imposed without the benefit of parole, probation or suspension of sentence and were ordered to run concurrently with each other.

The State subsequently filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant denied the allegations in the multiple bill after his motion to quash the multiple bill was denied. A hearing on the multiple bill was held on April 30, 2012, after which the trial court found defendant to be a multiple offender. The trial court then vacated defendant’s |4original sentence on Count 1 and imposed an enhanced sentence of 70 years without benefits. This appeal ensued.

FACTS

At approximately 7:30-7:45 a.m. on October 10, 2008, Lisa Hotard walked outside of her apartment complex located at 4800 Zenith Street in Metairie and put her trash in the dumpster in the parking lot. As she walked towards her car, a young man she later identified as defendant approached her and asked for her purse. Ms. Hotard thought he was joking, and she told him she did not have anything in her purse. He asked her again, and she repeated that she had nothing in her purse. Defendant then pulled out a gun, shoved her to the ground, pulled the trigger, and stuck the gun in her side. Ms. Hotard started yelling at him to get off of her at which time he ran away with her purse.

At approximately the same time, a resident at the apartment complex, Arthur Blackwell, and his girlfriend heard a woman screaming. Mr. Blackwell looked out of his window and saw a man and a woman screaming. He told his girlfriend to call the police, and then he ran out of the door to where he saw a woman lying on the ground and a man with a gun. Mr. Blackwell told the man, whom he later identified as defendant, to leave the woman alone at which time defendant jumped into a small grey car being driven by a woman and left. Mr. Blackwell’s girlfriend also saw defendant and the victim fighting over a purse and saw defendant put a gun to the victim’s side. She further saw defendant leave in a small silver SUV being driven by a female.

[¡Another apartment complex resident, Darnerio Rogers, heard the “commotion.” He spoke to the victim and found out what happened. After getting a physical description of the perpetrator and the vehicle in which he left from the victim, Mr. Rogers got into his vehicle and tried to locate the suspect. He found a vehicle matching the description at a nearby gas station at Transcontinental and Veterans Blvd. Mr. Rogers pulled up beside the vehicle, got out, and pretended like he was getting ready to pump gas. He then noticed a black male, who matched the physical description, standing by the gas pump and a black female in the driver’s seat. Mr. Rogers called the Jefferson’s Parish Sheriffs Office (JPSO) and gave them the license plate number of the vehicle. Meanwhile, the suspects drove off. Mr. Rogers followed them and relayed the direction of the vehicle to the JPSO.

JPSO Officer Stephen Hymel heard a dispatch of the description of the suspects and the vehicle. He saw the vehicle on Transcontinental and activated his lights and sirens to stop the vehicle. The car stopped, but when Officer Hymel ordered defendant to show his hands the vehicle took off. Officer Hymel eventually caught up with the vehicle, but both defendant and the female driver exited the vehicle and fled on foot. Officer Hymel pursued the female, apprehended her, and placed her in his unit. Defendant was subsequently apprehended by another officer after a short chase. The victim was brought to defendant’s location immediately thereafter and made a positive identification of him as the person who robbed her.

The victim’s purse was located on the same day of the incident on the lawn of a house on Haring Road. Co-defendant Lade LeBeauf, who was the driver of 1 fithe get-away car, testified that defendant threw the victim’s belongings out of the window while she was driving. Additionally, a gun was found about one block away from the purse. The victim identified this gun as looking identical to the one defendant used during the robbery.

After defendant’s arrest, he was advised of his rights and indicated he understood and wished to waive them. He then admitted that he committed the robbery, but claimed he did not have a gun during it and explained, “no gun, no crime.” Defendant refused to give a taped statement but acknowledged that he had discussed the robbery with an officer.

DISCUSSION

Defendant first argues the trial court erred in finding him competent to stand trial considering the entire history of his behavior. He specifically contends he was unable to assist in his defense. He points to a part of the trial where he slumped and fell out of his chair. That night, he tested positive for amphetamines. Defendant maintains this showed he was incapacitated by drugs and was incompetent to proceed with trial.

A criminal defendant has a constitutional right not to be tried while legally incompetent. State v. Carmouche, 01-405 (La.5/14/02), 872 So.2d 1020, 1041. There is a legal presumption that a defendant is sane and competent to proceed to trial. La. R.S. 15:432. Accordingly, the defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Anderson, 06-2987 (La.9/9/08), 996 So.2d 973, 992, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009). A reviewing court owes the trial court’s determination as to a defendant’s mental competency great weight, and the trial court’s ruling will not be disturbed absent a clear abuse of discretion. Id.

17Under La.C.Cr.P. art. 641, “mental incapacity to proceed exists when, as a result of mental disease or defect, a defen-dant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” The two-fold test of capacity to stand trial is whether the defendant: (1) understands the consequences of the proceedings, and (2) has the ability to assist in his defense by consultation with counsel. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 892, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

A defendant’s mental incapacity to proceed may be raised by the defense, the district attorney, or the court at any time. La.C.Cr.P. art. 642; State v. Johnson, 10-612 (La.App. 5 Cir. 1/25/11), 60 So.3d 653, 657, writ denied, 11-316 (La.6/17/11), 63 So.3d 1038. The trial court is required to order a mental examination of the defendant only when it has a reasonable ground to doubt the defendant’s mental capacity to proceed. La.C.Cr.P. art. 643; State v. Hobley, 98-2460 (La.12/15/99), 752 So.2d 771, 786, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000). There must be substantial doubt as to mental capacity before refusal to order an examination constitutes an abuse of the trial court’s discretion. Id.

“Reasonable grounds” refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that the defendant cannot understand the proceedings, appreciate the significance of the proceedings, or rationally aid his attorney in his defense. Anderson, 996 So.2d at 992.

In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme Court listed the following factors to be considered in determining whether a defendant is able to assist in his defense:

18[W]hether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

On the day defendant was first scheduled for trial, in September 2009, the trial judge was notified that defendant was on suicide watch. The trial judge held a status hearing and heard testimony from a psychiatric coordinator, who stated defendant would be a danger to others if he was brought to court. Defendant was then questioned and said he would “act out,” but not hurt anyone. The trial judge ordered that defendant be brought back to jail and dressed for trial. When defendant returned to court, he again said he would “act out” during the trial. As jury selection began, defendant “acted out” in court in front of the prospective jurors, and a mistrial was declared. The defense moved for a sanity hearing, and the trial judge ordered that defendant be evaluated the next day.

The next day, Dr. Richard Richoux, an expert forensic psychiatrist, and Dr. Rafael Salcedo, an expert forensic psychologist, conducted a competency examination of defendant. At the competency hearing, Dr. Salcedo testified that they could not opine that defendant met the Bennett criteria because defendant would not answer during the competency part of the evaluation. He also stated they were not persuaded that defendant suffered from a major psychiatric disease or defect. Dr. Salcedo further testified that it appeared defendant was unwilling, rather than unable, to cooperate in the examination. Dr. Richoux testified that he had no reason to disagree with Dr. Salcedo’s testimony. Based on defendant’s behavior, Drs. Salce-do and Richoux indicated that defendant might be depressed |9due to his current situation, and that he might be trying to manipulate the system to postpone prosecution.

After hearing the testimony of Drs. Ri-choux and Salcedo, the trial judge remanded defendant to the East Feliciana Hospital for observation, which was the court’s practice when there was an inability to make the call regarding a defendant’s competency. Although he noted that it appeared defendant was being manipulative, he indicated it would not hurt for the doctors to look at defendant for a few months and see what effect medications might have on defendant for depression or any other mental illnesses he might have.

Approximately two years later, on December 8, 2010, a second competency hearing was held, during which Dr. Robert Storer, an expert clinical and forensic psychologist, testified regarding his examination and/or treatment of defendant at East Feliciana Hospital. It was his opinion that while defendant had some depressive symptoms, there were no significant impairments in defendant’s competence related abilities and no major mental illness that would provide a foundation for finding incompetence. Dr. Storer opined that defendant met the Bennett criteria. Dr. Storer stated that he was aware of the previous mistrial because of defendant’s behavior and noted that defendant was engaged in nine fights while in the hospital; however, Dr. Storer explained that even though defendant had a difficult time getting along with people, it was not because he did not have the capacity to do so. Dr. Storer testified that defendant had the ability to rationally choose to act or not to act.

Dr. Mark Wilson, a staff psychiatrist at East Feliciana Mental Health System and an expert clinical and forensic psychiatrist, also testified at the competency hearing, and stated he agreed with Dr. Storer’s findings. Dr. Wilson testified that he examined defendant and believed defendant met the Bennett criteria in that he 1 ^understood the proceedings and was capable of assisting in his defense. Dr. Wilson specifically stated defendant was capable of making a rational decision as to whether he wanted to disrupt proceedings. He explained that defendant did not suffer from a mental illness that would force him to disrupt proceedings, but rather it was defendant’s own personal decision whether he engaged in that type of behavior.

The trial judge ultimately found defendant competent to stand trial, and defendant proceeded to trial a second time on February 22, 2011. However, the trial judge declared a mistrial after defendant slit his throat with a razor in open court.

A third competency hearing was held on April 6, 2011. Dr. Salcedo testified that in his and Dr. Richoux’s most recent examination of defendant on March 30, 2011, defendant did not exhibit any signs or symptoms of suffering from a major psychiatric disorder which would render him incompetent or incapable of assisting in his defense. Dr. Salcedo again suggested that defendant might be trying to manipulate the system to avoid going to trial. At the conclusion of the hearing, the trial judge found defendant competent to stand trial.

Defendant’s third trial began on August 16, 2011. Upon agreement of all parties, defendant was handcuffed and shackled, with both connected to a U-bolt in the floor. After the jury entered the courtroom during trial, defendant fell from his chair and slumped to the floor. The prosecutor noted on the record that it appeared defendant flung himself from the chair and did not slump out of it. Defense counsel stated he could not object to that analysis, but nevertheless moved for a mistrial. The trial judge denied the motion, stating that he believed defendant was attempting to obtain a mistrial, and that his actions demonstrated defendant understood what he was doing since it was the third occasion.

InThat evening, defendant’s blood was tested. The next day at trial, the prosecutor advised the trial judge that defendant’s blood work was positive for amphetamines. The prosecutor relayed that according to Dr. Richoux, defendant had never been prescribed methamphetamines. Defense counsel noted that defendant told him that he took Trazodone that was not prescribed for him and that he received the medication from someone else. The prosecutor remarked that the doctor had told him defendant did not test positive for that drug.

After reviewing the record, we find the trial judge did not err by finding defendant competent to stand trial. Defendant was evaluated for competency on three occasions, the first of which was a lengthy hospital stay for observation. Drs. Storer, Wilson, Salcedo, and Richoux evaluated defendant on separate occasions and none found defendant mentally incompetent to stand trial.

The trial judge declared a mistrial on two occasions, the first when defendant “acted out” in court, and the second when defendant slit his throat in court. After viewing defendant’s behavior over the course of several court appearances and considering the doctors’ testimony, the trial judge believed that defendant was consciously attempting to obtain a third mistrial by disrupting the proceedings yet again by flinging himself from his chair.

In the instant case, there is nothing in the record to show that the trial judge abused his discretion in finding defendant competent to proceed to trial. The record fully supports the trial judge’s conclusion that defendant was intentionally trying to cause a mistrial by disrupting the proceedings for a third time.

Multiple Offender Adjudication

In his second assignment of error, defendant argues there was insufficient evidence to adjudicate him a multiple offender because the State failed to prove an | ^identifiable link between the fingerprints from the predicate conviction and his underlying conviction.

To prove a defendant is a multiple offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was convicted of the prior felonies. State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 455, writ denied, 05-1715 (La.2/10/06), 924 So.2d 161. This Court has held that testimony comparing a defendant’s current fingerprints with fingerprints found on pri- or arrest records is sufficient to prove that the defendant is the person convicted of a prior felony. State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 926, writ denied, 98-792 (La.9/16/98), 721 So.2d 477. This Court has also found sufficient linkage to a defendant where the State connects the fingerprint card to the arrest register and/or the bill of information by matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, or docket numbers. State v. Muhammad, 03-419 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 33, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669.

In the present case, the State alleged defendant to be a second felony offender based on predicate convictions for armed robbery and attempted armed robbery obtained on February 4, 2000 when defendant entered guilty pleas. At the multiple bill hearing, the State introduced the fingerprint card of defendant taken at the trial of his underlying conviction (State’s Exhibit 1); certified documents from the Orleans Parish convictions in case number 405-200, which contained two bills of information, a guilty plea form, a docket master, and arrest registers (State’s Exhibit 2); and the fingerprint card from the 1998 arrest in case number 405-200 | ^(State’s Exhibit 3). Aischa Prudhomme, an expert in the field of fingerprint identification and comparison, testified that the fingerprints contained on State’s Exhibit 1 (the fingerprints she took of defendant on August 17, 2011, at defendant’s current trial) were made by the same person as the fingerprints on State’s Exhibit 3 (fingerprints certified from the New Orleans Police Department).

We find this evidence sufficiently linked defendant to the predicate conviction. Defendant’s fingerprints taken by Ms. Prud-homme (State’s Exhibit 1) link him to the fingerprints contained on the fingerprint card pertaining to the 1998 arrest in New Orleans (State’s Exhibit 3). State’s Exhibit 3, in turn, links defendant to the arrest registers pertaining to the Orleans Parish convictions (State’s Exhibit 2), in that they both contain the same social security numbers, dates of birth, dates of arrest, local identification numbers, gender, race, weight, and eye color. There are only minor differences between State’s Exhibits 2 and 3 regarding height (a one-inch difference), hair color, and spelling of defendant’s first name (Terence in the instant case, but Terence in State’s Exhibit 2). Additionally, the docket master and the guilty plea form show defendant was represented by counsel at the time he entered his pleas.

Because the State met its burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel at the time he entered his pleas, the burden shifted to defendant to produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. The record does not reflect that defendant produced such evidence.

Accordingly, we find the evidence sufficiently proved defendant was a second felony offender.

J¿¿ERRORS PATENT

Defendant requests an error patent review; however, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), regardless of whether a defendant makes such a request.

We first note that the trial court did not specify whether the sentence for the felon in possession of a firearm conviction was to be served at hard labor. Although the commitment reflects the sentence was to be served at hard labor, the transcript, which prevails, does not. A court is required to impose a determinate sentence. La.C.Cr.P. art. 879. If the applicable sentencing statutes allow discretion, the failure to indicate whether the sentence was to be served at hard labor would be an impermissible indeterminate sentence. Defendant was sentenced under La. R.S. 14:95.1, which requires the sentence to be served at hard labor. Because the statute mandates hard labor and there is no discretion allowed, the trial court’s-failure to state that defendant’s sentence was to be served at hard labor is harmless and no corrective action is required. See State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 377.

Next, in connection with defendant’s felon in possession of a firearm conviction, the trial judge did not order defendant to pay the mandatory fine of not less than $1,000.00 nor more than $5,000.00 as required by La. R.S. 14:95.1(B). This Court has authority to correct an illegally lenient sentence under La.C.Cr.P. art. 882; however, this authority is permissive rather than mandatory. State v. Gorman, 11-491 (La.App. 5 Cir. 2/14/12), 88 So.3d 590, 600. Because defendant is indigent, as reflected by his representation by the Louisiana Appellate Project, we decline to exercise our authority to correct defendant’s illegally lenient | ^sentence with regard to the trial court’s failure to impose the mandatory fine. See State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, 224, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725.

Finally, we note defendant was not advised of his multiple offender rights prior to the multiple bill hearing. A trial court is required to advise a defendant of the allegations contained in the multiple bill of information, his right to a hearing, and his right to remain silent. La. R.S. 15:529.1; State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 582. The trial court’s failure to advise a defendant of his right to a trial and to remain silent is harmless when the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant. Id. at 582-83.

Defendant denied the allegations of the multiple bill, and the State presented competent evidence at the hearing to establish his multiple offender status. Therefore, the trial court’s failure to advise defendant of the specific allegations against him, his right to a hearing, and his right to remain silent was harmless error.

DECREE

For the foregoing reasons, defendant’s convictions for armed robbery and felon in possession of a firearm are affirmed. Additionally, his adjudication as a second felony offender is affirmed. Further, his enhanced sentence for armed robbery and his sentence for felon in possession of a firearm are affirmed.

AFFIRMED

      . On September 15, 2009, the State amended the bill to delete the La. R.S. 14:64.3 charge.

      . We note that defendant’s motion for appeal was premature, having been filed after sentencing on the underlying charge but before consideration of the multiple bill of information; however, this procedural defect was cured by the trial court’s imposition of sentence on the multiple bill. See State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354.

      . The female driver, Lacie LeBeauf, was named as a co-defendant in the bill of information and ultimately charged with aggravated flight from an officer and accessory to armed robbery. She subsequently pled guilty to aggravated flight from an officer and accessory after the fact to armed robbery.

      . Of note, the record shows through records from the Eastern Louisiana Mental Health System that defendant was started on Trazo-done.

      . In his second assignment of error, defendant also asserted the trial court erred in denying his motion to quash the multiple offender bill; however, defendant did not brief this issue. As such, we consider any issues relating to the motion to quash to be abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4; State v. Tranchant, 10-459 (La.App. 5 Cir. 11/23/10), 54 So.3d 730, 735, writ denied, 10-2821 (La.4/29/11), 62 So.3d 108.

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Phillip G. DUSSETT, Jr.
    No. 12-KA-356.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA for Plaintiff/Appel-lee.
    Frederick J. Kroenke, Jr., Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ¡.Defendant, Phillip Dussett, Jr., was convicted of attempted first degree murder, a violation of LSA-R.S. 14:27:30. On appeal, he argues that his sentence is unconstitutionally excessive. He also argues that if this Court is precluded from reviewing his sentence for constitutional exces-siveness because of his trial counsel’s failure to file a motion to reconsider sentence, then this Court should find that his trial counsel rendered him ineffective assistance of counsel. For the following reasons, we find no merit to either of defendant’s assignments of error, and accordingly affirm his sentence.

PROCEDURAL HISTORY

On January 26, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Phillip Dussett, Jr., with attempted second degree murder of Conway Dennis, in violation of LSA-R.S. 14:27:30.1. On January 27, 2009, defendant was arraigned and entered a plea of not guilty. After discovery and pre-trial motions, on August 24, 2010, the State filed a superseding bill of | .information charging defendant with attempted first degree murder of Conway Dennis, in violation of LSA-R.S. 14:27:3o. Defendant was arraigned on the new charge and entered a plea of not guilty.

The matter proceeded to a jury trial on August 1, 2011. On August 3, 2011, the jury returned a verdict against defendant of guilty as charged. Co-defendant, Deiv-on Trim, was also charged in both bills of information, and was also found guilty as charged with attempted first degree murder. On September 6, 2011, defendant filed a Motion in Arrest of Judgment and Alternatively Motion for New Trial. On September 22, 2011, the trial court heard and denied the motion. That same day, the trial court sentenced defendant to forty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On September 28, 2011, the trial court granted defendant’s appeal.

FACTS

During the evening of October 18, 2008, Officer Brad Boyd of the Kenner Police Department responded to reports of gunfire in the 3100 block of Helena Street in Kenner. When he arrived, Officer Boyd discovered a deceased black male, later identified as Frankie Williams. Detective George Hoffmann of the Kenner Police Department, the lead investigator of the Williams murder, conducted an interview with Conway Dennis concerning the Williams murder. Mr. Dennis told Detective Hoffmann that he observed defendant and Mr. Trim in the area prior to the murder. At trial of the instant matter, Mr. Dennis testified that he was with Frankie Williams, his cousin, moments before he was shot. He stated that he left Frankie to go to the store, and as he walked away, he saw defendant, 14Mr. Trim, and two other individuals walking in Frankie’s direction. On his way back from the store, Mr. Dennis learned that Frankie had been shot. At trial, surveillance footage from an apartment complex near the murder scene was played. The video was time stamped at 11:13 p.m. on October 18, 2008, and Mr. Dennis identified defendant and Mr. Trim in the footage.

Approximately one month later, on November 20, 2008, around 8:00 p.m., Mr. Dennis was on his bike on his way to meet a friend when he encountered a man named Tyson on Clemson Drive, about a mile from the Frankie Williams murder scene on Helena Street. Tyson, who had known Mr. Dennis since he was younger, told him, “I think it’s about time for you to leave — leave from around here.” Mr. Dennis got on his bike and started to leave when he noticed defendant and Mr. Trim approaching him. As he attempted to elude them, both defendant and Mr. Trim, each with a gun, started shooting at him. Mr. Dennis escaped without physical injuries and reported the incident to the police soon after he got home.

Later that evening, Officer Boyd responded to a report of gunfire in the 200 block of Clemson Drive. When Officer Boyd arrived on the scene, he located eleven spent 9-mm shell casings. A witness on the scene advised Officer Boyd that he had observed two black males running from the scene firing weapons at somebody else who was running ahead of them.

Mr. Dennis identified defendant and Mr. Trim as his assailants. Defendant was subsequently arrested and denied any knowledge of Frankie Williams’ murder or the attempted murder of Mr. Dennis. At trial, Mr. Dennis stated that he was one hundred percent sure that defendant shot at him on November 20, 2008.

| ¡ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Defendant argues that the trial court erred in imposing a sentence herein that is unconstitutionally excessive. Defendant also argues that the failure of trial counsel to file a motion to reconsider the sentence should not preclude this Court from considering the constitutionality of the sentence; and, in the event that it does, such failure of trial counsel constitutes ineffective assistance of counsel.

First, trial counsel’s failure to file a motion to reconsider sentence does not preclude this Court from performing the requested review of defendant’s sentence. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, merely limits a defendant to a review of the sentence for constitutional excessiveness only, which is what defendant requests on appeal. State v. Hunter, 10-552, pp. 4-5 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272; State v. Alvarez, 08-558, p. 5 (La.App. 5 Cir. 8/31/10), 47 So.3d 1018, 1022. Because this Court is not precluded from undertaking the review requested on appeal, trial counsel’s omission does not constitute ineffective assistance of counsel under the Strickland standard. See State v. Pendelton, 96-367, p. 30 (La.App. 5 Cir. 5/28/97), 696 So.2d 144, 159, writ denied, 97-1714 (La.12/19/97), 706 So.2d 450; see also State v. Prudhomme, 02-0511, p. 16 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, 1177, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324.

Nevertheless, a defendant may have a basis to claim ineffective assistance of counsel when he can show a reasonable probability, that but for defense counsel’s error, his sentence would have been different. See Pendelton, 96-367 at 30, 696 So.2d at 159; Prudhomme, 02-0511 at 16, 829 So.2d at 1177. Upon review, we [«find that defendant has failed to make the requisite showing. The judge’s comments at the sentencing hearing show that the judge deviated, on his own accord and without urging from defendant, from the pre-sentence investigation’s recommended sentence of the maximum of fifty years at hard labor, showing leniency with his sentence of forty years at hard labor. As such, defendant has not shown to a reasonable probability that but for trial counsel’s omission, he would have received a lesser sentence upon reconsideration. Accordingly, defendant has not shown that his trial counsel rendered ineffective assistance.

Defendant further argues that the sentence imposed is unconstitutionally excessive. In support of this, he points out that prior to trial, he was offered a plea agreement in which he would have received a sentence of ten years. The State responds that defendant’s sentence is within the statutory range, is in proportion to the severity of the crime, and is supported by the record. Thus, the State contends that the trial judge did not abuse his discretion in imposing the sentence.

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

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another ^sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: (1) the nature of the crime; (2) the nature and background of the offender; and (8) the sentence imposed for similar crimes by the same court and other courts. Pearson, 07-332 at 15-16, 975 So.2d at 656.

Defendant’s sentence is within the statutory limits. At the time of the offense, LSA-R.S. 14:30(0(2) provided: “If the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.” In addition, LSA-R.S. 14:27(D)(l)(a) provided: “If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.” Accordingly, defendant was eligible for a maximum sentence of fifty years; he was sentenced to forty years.

Considering the nature of the crime, in the instant case, the evidence indicates that defendant attempted to inflict serious bodily harm or death when he fired a handgun numerous times at Mr. Dennis. Further, he acted in an attempt to silence Mr. Dennis, who had accused him of murdering Frankie Williams.

A pre-sentence investigation report revealed that defendant had five previous delinquency adjudications as a juvenile and more than twenty arrests as an adult that included numerous crimes against the person. As a juvenile, defendant was adjudicated delinquent for the offenses of first degree robbery, simple robbery, |ssimple battery, and resisting an officer. As an adult, defendant was arrested for attempted second degree murder, armed robbery, aggravated assault, aggravated assault with a firearm, simple battery, simple battery with injury, simple battery with domestic violence, second degree battery, and battery on a police officer. Thus, the State showed that defendant had an extensive and violent criminal past.

Last, regarding sentences imposed for similar crimes by the same court and other courts, in State v. Carter, 34,677, pp. 8-9 (La.App. 2 Cir. 5/9/01), 787 So.2d 509, 516, writ denied, 01-1707 (La.5/3/02), 815 So.2d 93, the defendant was convicted of attempted first degree murder and was sentenced to forty years at hard labor without the benefit of parole, probation, or suspension of sentence. The Second Circuit affirmed his sentence, finding the record provided adequate support:

[Defendant] planned a racially-motivated murder-robbery; he purposefully tricked his victim to a secluded spot; he shot him and beat him on the head, thus manifesting deliberate cruelty; [defendant] then left [the victim] for dead after taking items from his car. In addition to a lengthy hospital stay, [the victim] suffered the loss of an eye for the balance of his life as a result of [defendant’s] attack.

Id., 34,677 at 8-9, 787 So.2d at 515-16.

In State v. Jones, 99-1074, pp. 2-3 (La.App. 3 Cir. 3/8/00), 758 So.2d 905, 906-07, writ denied, 00-1843 (La.8/31/01), 795 So.2d 1202, the defendant pled guilty to two counts of attempted first degree murder and was sentenced on each count to forty years at hard labor without the benefit of parole, probation, or suspension of sentence. The Third Circuit, finding that the trial judge sufficiently took into consideration the elements of LSA-C.Cr.P. art. 894.1, affirmed the defendant’s sentences. Id., 99-1074 at 2-3, 758 So.2d at 907. The court noted the defendant’s deliberate cruelty and his extensive juvenile record.

19The instant case differs from the foregoing cases in that the victim here was not physically injured. However, the fact that Mr. Dennis was not injured should not diminish defendant’s punishment. Given defendant’s criminal history and the malicious intent with which he acted, similar to Carter and Jones, the record supports the imposition of the maximum sentence. However, the trial court chose a course of leniency, stating:

I’m going to give you an opportunity to have some sort of an incentive to get out while you have some quality years ahead of you, but I’m going to consider your lengthy criminal history and the nature of the crime for which you were convicted and the fact that it was an attempted first degree murder.

In view of the foregoing, we find that the record adequately supports the sentence imposed and that the trial court did not abuse its discretion in sentencing defendant to forty years imprisonment at hard labor. Accordingly, we find no merit to the assertion that defendant’s sentence is unconstitutionally excessive.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that the transcript indicates that the trial court failed to inform defendant of the prescriptive periods for applying for post-conviction relief under LSA-C.Cr.P. art. 930.8. This Court hereby advises defendant that he has two years from the date his conviction and sentence are final under the provisions of LSA-C.Cr.P. arts. 914 or 922 in which to seek post-conviction relief. See State v. Ramsey, 10-333, p. 10 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42; State v. Davenport, 08-463, p. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 10 So.3d 473.

11 ^CONCLUSION

For the foregoing reasons, defendant’s sentence is affirmed.

AFFIRMED

      . The superseding indictment was based upon the information that Conway Dennis, the victim, had accused defendant of murdering Frankie Williams. This would be a violation of LSA-R.S. 14:27:30(A)(9).

      . On cross-examination, Detective Hoffmann acknowledged that his report does not indicate that defendants were on the murder scene.

      . According to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in assessing a claim of ineffective assistance of counsel, a two-pronged test is employed. The defendant must show that (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced him.

      . It is well settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520.

      . The pre-sentence investigation report indicates that prosecution of these offenses was either refused or no record of prosecution thereof was found.


text:
    STATE of Louisiana v. Shaveen Ray HILL.
    No. 12-KA-495.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| gShaveen Ray Hill, defendant, pled guilty on June 5, 2009 to two counts of possession with intent to distribute cocaine in violation of La. R.S. 40:967(A)(1). Defendant now appeals, arguing that the trial court erred both by denying his motion to continue his sentencing hearing and by imposing an unconstitutionally excessive sentence. For the following reasons, we find defendant’s assignments of error to be without merit. Therefore, this Court affirms the judgment of the trial court.

Facts

On or about October 17, 2006 and on or about December 19, 2006, defendant knowingly distributed cocaine to an undercover police officer. On June 5, 2009, defendant pled guilty to two counts of distributing cocaine in violation of La. R.S. 40:967(A)(1). The trial judge then ordered a pre-sentence investigation report and set bond for defendant at $5,000.

|3Before sentencing, the trial judge received and considered defendant’s pre-sen-tence investigation report and reference letters submitted on his behalf. The pre-sentence report showed, among other things, that on May 20, 2009, defendant began the IPH, Inc. program for substance abuse treatment and education courses. On September 8, 2009, defendant filed a motion to continue his sentencing hearing because defendant was then “housed in a treatment facility” and was not scheduled to be released at that time. The trial court denied this motion.

The next day, the trial court held defendant’s sentencing hearing. It sentenced defendant on each count to a term of 20 years at hard labor, the first two years without benefit of parole, probation, or suspension of sentence. The court ordered each of these terms to be served concurrently. On June 14, 2011, defendant filed an application for post-conviction relief, seeking an out-of-time appeal. On September 29, 2011, the trial court granted defendant an out-of-time appeal.

Discussion

First Assignment

Defendant argues on appeal first that the trial court manifestly erred when it denied his motion for a continuance and thereby did not allow him to complete his drug treatment program.

A motion for a continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor. La.C.Cr.P. art. 712. The decision of whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge and a reviewing court will not disturb such a determination absent clear abuse of discretion. State v. Shannon, 10—580, p. 11 (La.App. 5 Cir. 2/15/11), 61 So.3d 706, 715, writ denied, 11-0559 (La.9/30/11), 71 So.3d 283 (citations omitted). In addition, this Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. Id.

Here, defendant began his drug treatment program on May 20, 2009, but waited until the day before his sentencing hearing, September 8, 2009, to file his motion for a continuance. In addition, defendant’s motion for a continuance had no supporting documents attached which indicated he was in a treatment facility. Finally, defendant’s motion for a continuance did not state the purpose of his treatment, nor did it argue why he would be prejudiced in his sentencing by not being able to complete his treatment.

On these facts, this Court cannot say the trial court abused its discretion by denying defendant’s motion for a continuance. Therefore, defendant’s first assignment of error is without merit.

Second Assignment

Defendant also argues on appeal that the trial court abused its discretion by sentencing him to an excessive sentence. Here, the trial court sentenced defendant to serve two terms of twenty years at hard labor, concurrently, the first two years of which to be served without benefit of parole, probation, or suspension of sentence. Appellate review of sentences for exces-siveness is a two-pronged inquiry. State v. Lobato, 603 So.2d 739, 751 (La.1992). First, the record must show that the sentencing court complied with La.C.Cr.P. art. 894.1. Id. If this prong is met, a constitutional inquiry as to the excessiveness of the sentence follows. Id.

IflHere, however, the record shows defendant did not make a timely oral or written motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1(A)(1). This failure to make or file a motion to reconsider sentence or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Hunter, 10-552, pp. 4-5 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272.

Whether a sentence is unconstitutionally excessive, and therefore invalid, is governed by both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Nguyen, 06-969, pp. 5-6 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04); 885 So.2d 618, 622.

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

| (¡Applying the first factor, the trial court noted that the offender received something of value for the commission of the offense, and that the offense involved a controlled dangerous substance from which defendant received substantial income or resources from ongoing drug activities. Applying the second factor, the trial court noted that defendant’s pre-sen-tence investigation report indicated that he is a fourth felony offender whose prior convictions include a conviction for assault by drive-by shooting. Finally, this Court finds that defendant’s sentence is similar to sentences imposed for similar crimes by the same court and other courts. See State v. Staton, 05-612, p. 1 (La.App. 3 Cir. 2/1/06), 922 So.2d 1216, 1217, writ denied, 06-1249 (La.11/22/06), 942 So.2d 553. In light of the foregoing, this Court finds that the trial court did not abuse its discretion by imposing an unconstitutionally excessive sentence. Therefore, defendant’s second assignment has no merit.

Error Patent Review

This Court has conducted a review for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

Conclusion

For the reasons explained above, this Court hereby affirms defendant’s sentence.

AFFIRMED