author: FREDERICKS HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Shaun BARNETT.
    No. 12-KA-816.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Jennifer Z. Rosenbach, Rachel Africk, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKS HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   FREDERICKS HOMBERG WICKER, Judge.

|2Pefendant appeals his convictions for attempted aggravated assault with a firearm, aggravated criminal damage to property, possession of an unidentifiable firearm, possession with intent to distribute marijuana, and possession of cocaine. First, defendant assigns as error the denial of his motion to suppress the evidence, claiming that the search warrant at issue is unconstitutionally overbroad because it allowed for the search of any vehicle on the targeted premises. Second, defendant complains of the consecutive nature of his sentences and argues that the trial court imposed an unconstitutionally excessive sentence. Lastly, defendant challenges his conviction for attempted aggravated assault with a firearm, asserting that such a crime is not recognized in Louisiana law. We find that the trial court did not err in denying defendant’s motion to suppress the evidence or in sentencing defendant. We further find that attempted aggravated assault with a firearm is a proper responsive verdict in this case and affirm defendant’s convictions and sentences.

I»PROCEDURAL HISTORY

On March 16, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Shaun Barnett, with possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count one), aggravated assault with a firearm in violation of La. R.S. 14:37.4 (count two), aggravated criminal damage to property in violation of La. R.S. 14:55 (count three), possession of an unidentifiable firearm in violation of La. R.S. 40:1792 (count four), and possession of cocaine in violation of La. R.S. 40:967(C) (count five). Defendant was arraigned and pled not guilty to all charges.

The matter proceeded to trial and on March 15, 2012, a 12-person jury returned verdicts of guilty as charged on counts one, three, four, and five. As to count two, the jury found defendant guilty of the responsive verdict of attempted aggravated assault with a firearm. On June 21, 2012, the trial court sentenced defendant to imprisonment as follows: on count one, seven years at hard labor; on count two, two and a half years at hard labor; on count three, seven years at hard labor; on count four, five years at hard labor without the benefit of parole, probation, or suspension of sentence; and on count five, five years at hard labor. The trial court ordered the sentences on counts one, two, three, and five to be served concurrently and the sentence on count four to be served consecutively to the sentence on count one. This timely appeal follows.

FACTUAL BACKGROUND

On January 18, 2010, at approximately 4:00 p.m., family and friends gathered at defendant’s mother’s home, located at 329 Pat Drive in Avondale, to celebrate Martin Luther King Day. Those present included defendant, defendant’s mother, defendant’s mother’s boyfriend, defendant’s four brothers, some of their girlfriends, and other friends.

_JjThanh Tran, the victim and a neighborhood acquaintance of defendant, testified that around 7:00 or 8:00 p.m. that evening, January 18, 2010, defendant asked him for a ride to defendant’s girlfriend’s house. Tran brought defendant to his girlfriend’s house in the 1200 block of Garden Road in Marrero and while he sat waiting in his vehicle, he observed defendant and his girlfriend fighting and “running back and forth.” Tran stated that defendant then ran up to the vehicle’s trunk and asked him to open it. Tran refused, fearing that defendant wanted to retrieve the crowbar inside the trunk to use as a weapon. Rather than comply with defendant’s request and become involved in defendant’s altercation with his girlfriend, Tran took off. As Tran drove off, defendant shot into Tran’s vehicle. Tran drove to the nearest gas station and told the clerk to call the police to report the incident.

Deputy Raymond Villani of the Jefferson Parish Sheriffs Office responded to the call and soon arrived at the gas station to speak with Tran. Deputy Villani noticed bullet holes in the body of Tran’s vehicle and determined the damage had been recently sustained as indicated by the absence of rust or oxidization to the vehicle as well as the fact that portions of shattered glass still hung in the vehicle’s window frame. No physical evidence was recovered linking the vehicle to the 1200 block of Garden Road, where Tran alleges the incident occurred. However, Deputy Villani testified that an anonymous witness reported four gunshots that evening on Garden Road.

Contrary to Tran’s version of events, several people present at the Barnett home on January 18, 2010, testified that defendant never left the home that night. IsQuan Barnett, defendant’s brother, testified that he did not see defendant absent for any extended period of time and that he never saw defendant armed with a firearm. Daijaonia Hopson, Quan’s girlfriend, testified that the party at the Barnett home ended around 11:00 p.m. and that she did not see defendant leave the residence during the evening nor did she see him armed with a firearm. On cross-examination, however, Ms. Hopson admitted that she did not watch defendant at every moment throughout the evening. Defendant’s mother testified that defendant never left the party, nor did she see him with a firearm. She also stated that defendant was still at home when she left for work at 10:45 p.m.

After Tran reported the incident to police, Detective Henry Conravey of the Jefferson Parish Sheriffs Office presented a photographic lineup to Tran, who identified defendant as the person who shot into his vehicle. Following Tran’s identification of defendant, Detective Conravey obtained an arrest warrant for defendant and a search warrant for his mother’s residence at 329 Pat Drive in Avondale. On February 3, 2010, in preparation for execution of the search warrant, Detectives Brian Brinser and Glen Weber conducted surveillance of the residence. The detectives observed defendant exit the residence and proceed near a white vehicle parked inches from the side of the house. Officers briefly lost sight of defendant until he walked back to the front of the house. Defendant then walked away from the house onto Pat Drive, where officers arrested him and advised him of his rights.

Officers then conducted a search of the residence, which revealed two firearms— one pistol hidden in the bathroom and one assault rifle, with its serial number obliterated, located in the attic. During the search, officers also recovered a digital scale in a bedroom and an expired Louisiana identification card issued to defendant in a dresser drawer in that same bedroom. Detective Conravey testified |Rthat during the search, defendant’s mother informed him that the bedroom in which the officer recovered the digital scale and ID card belonged to defendant. However, at trial, Ms. Barnett testified she told officers that defendant did not have an assigned room in the house.

Officers also searched a white Toyota Célica parked in the driveway alongside the residence. From that search, officers recovered seven small plastic bags of marijuana stuffed inside the vehicle’s fuel door and two rocks of crack cocaine in the vehicle’s passenger compartment. Lieutenant Daniel Jewell, Jr. of the Jefferson Parish Sheriffs Office, an expert in the packaging and distribution of narcotics, testified that the packaging of the marijuana found in the vehicle indicated it had been packaged for distribution. Lt. Jewell further testified that the presence of firearms and a scale inside the residence as well as the lack of paraphernalia associated with personal use, such as a pipe, indicates an intention to distribute the narcotics.

After defendant’s arrest, Detective Melvin Francis of the Jefferson Parish Sheriffs Office obtained two recorded statements from defendant. In his first statement, defendant claimed ownership of the weapons found in the residence as well as ownership of the narcotics found in the vehicle. In his second statement, defendant denied Tran’s allegations of the events of January 18, 2010. Defendant denied that Tran brought him to his girlfriend’s house in Marrero and stated that he was at home in Avondale all evening on January 18, 2010. At trial, defendant 17claimed Detective Francis coerced him to confess to possession of the drugs and firearms recovered. Defendant also alleged that when he said something unsatisfactory to Detective Francis in his statement, the detective rewound the tape and recorded over that portion of the statement.

At trial, defendant denied possession of the firearms or drugs recovered from the search. Regarding the firearms, defendant testified that his mother’s ex-boyfriend, George Curtis Williams, lived at the Avondale residence from 1997 until 2009. Defendant testified that Williams owned two rifles while he resided with defendant’s mother. However, defendant also testified that the rifle recovered in the attic did not appear to be one of Williams’ rifles. Ms. Barnett, however, contradicted her son’s testimony and testified that Williams had only one hunting rifle and that the rifle discovered in the attic belonged to Williams. Defendant denied ever touching or discharging Williams’ rifles and further denied ever having contact with the two weapons seized from the residence.

Defendant also denied ownership of the drugs found in the vehicle. When questioned as to why he walked alongside the house on February 3, 2010, during the detective’s surveillance, defendant testified that he passed by the side of the house to put the trash out. Both defendant and his mother testified that the Toyota Célica in the driveway had been inoperable for some time. Defendant testified that he did not use the vehicle nor did he place any drugs in the vehicle.

^Regarding defendant’s relationship with Tran, defendant testified that he knew Tran from the neighborhood and that Tran had previously given him a ride to his girlfriend’s house in December of 2009. Defendant also testified that Tran sold him a 60-inch flat screen television, for which defendant did not pay the full amount. Defendant denied asking Tran for a ride to his girlfriend’s house on January 18, 2010; he further denied any altercation with his girlfriend or being armed that night. Defendant maintained that he remained at his mother’s home all afternoon and evening on January 18, 2010.

DISCUSSION

In defendant’s first assignment of error, he argues that the trial court erred in denying his motion to suppress the evidence seized in the vehicle outside the residence. Officers conducted a search of the vehicle parked alongside the residence pursuant to a search warrant for “firearms, magazines, ammunition, or other firearm equipment.” The warrant permitted the officers to search the residence at “329 Pat Drive, Avondale, Louisiana, outlying curtilage, and any vehicles, movables, and containers on the property.” At the suppression hearing, defendant argued that the search of the vehicle’s fuel door exceeded the scope of the warrant because it is inconceivable that a firearm could be located in a vehicle’s fuel door. The trial court found that the search of the vehicle’s fuel door did not exceed the scope of the search warrant because the warrant specifically permitted the search of curtilage as well as any vehicle parked on the premises. The trial court further recognized that a fuel door is capable of concealing rounds of ammunition.

On appeal, defendant raises a different argument-that the search warrant issued is unconstitutionally overbroad because it authorized the search of “any 19vehicles” on the premises. Defendant argues that the search warrant at issue is unconstitutionally overbroad and does not describe with particularity the vehicle the officers searched.

First, we find that defendant has waived his argument that the search warrant is unconstitutionally overbroad as defendant failed to raise that argument at trial or at the hearing on his motion to suppress. Louisiana courts have long held that a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 7. However, we find that even if defendant had raised this argument in the trial court, the argument lacks merit. “[A] warrant authorizing the search of a particularly described premises permits the search of the vehicle located on the premises targeted for the search[.]” Id. at 8. A vehicle is capable of concealing sought-after contraband. Id. At trial, Detective Adrian Thompson testified that a vehicle’s fuel door is a common hiding place for contraband and is of sufficient size to conceal rounds of ammunition and other contraband associated with firearms. Accordingly, this assignment is without merit.

In his second assignment of error, defendant challenges his conviction for attempted aggravated assault with a firearm, asserting that it is not a recognized crime under Louisiana law. At the time of the offense, La. R.S. 14:37.4 defined aggravated assault with a firearm as “an assault committed by the discharge of a firearm.” Assault is defined by La. R.S. 14:36 as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” (Emphasis added.)

|inOn appeal, defendant argues that because an assault is merely an attempt to commit a battery, he cannot be convicted of attempting to attempt to commit a crime. The state responds that defendant’s conviction is proper because attempted aggravated assault with a firearm is a responsive verdict to a charge of aggravated assault with a firearm in cases where the state does not rely on the attempted-battery definition of assault, but rather relies on the alternative theory or definition of assault, ie., the intentional placing of another in reasonable apprehension of receiving a battery. We agree.

A plain reading of the statute shows that an assault is an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery. The use of the word “or” in the statute indicates the disjunctive. La. C.Cr.P. art. 6(2).

Defendant however cites the comments to the attempt statute, La. R.S. 14:27, which specifically provide, “[s]ince there can be no such thing as an attempt to commit an attempt, there can be no attempt to commit either an aggravated assault or a simple assault. Those offenses are themselves in the nature of attempts to commit a crime.”

First, we recognize that the article’s comments do not constitute parts of the law. La.C.Cr.P. art. 10. Furthermore, a historical analysis of the definition of assault in Louisiana law reveals that, at the time the reporters drafted the comments to La. R.S. 14:27, the article defined assault only as an offer or attempt to commit a battery.

|nIn 1940, the Louisiana legislature instructed the Louisiana Law Institute to prepare a draft or “Projet of the Criminal Code for the State of Louisiana.” The comment to article 27, the attempt article, in the 1940 Projet contains the exact language as the current comment under La. R.S. 14:27: “[sjince there can be no such thing as an attempt to commit an attempt, there can be no attempt to commit either an aggravated assault or a simple assault.” However, the 1940 Projet defined an assault only as “an offer or attempt ... to commit an injury on the person of another.” Subsequently, at the time the legislature enacted the Louisiana Criminal Code in 1942, the definition of assault had significantly changed; the comments under the attempt statute, La. R.S. 14:27, however, remained unchanged.

Dale E. Bennett, one of the original reporters appointed by the Law Institute to draft the 1940 Projet, later discussed the historical development of the Louisiana Criminal Code and recognized that the 1942 Criminal Code amended the definition of assault “to include either an ‘attempt’ to commit a battery or the ‘placing of another in reasonable apprehension of receiving a battery.’” Dale E. Bennett, The Louisiana Criminal Code, A Comparison with Prior Louisiana Law, 5 La. L.Rev. 29 (1942-44). Therefore, subsequent to the drafting of the attempt article’s comments, the definition of assault significantly changed to include two theories of culpability: an “attempt to commit a battery” and “the intentional placing of another in reasonable apprehension of receiving a battery.”

Therefore, we find that the 1940 comment, indicating that there can be no such thing as an attempt to commit an assault, only applies to the attempted-battery definition or theory of culpability and does not apply when the state relies on the | ^alternative definition or theory of culpability, i.e., “the intentional placing in apprehension of receiving a battery.”

Additionally, we find that attempted aggravated assault with a firearm is a proper responsive verdict to a charge of aggravated assault with a firearm. See Cheney C. Joseph & P. Raymond Lamoni-ca, Criminal Jury Instructions, 17 La. Civ. L. Treatise, § 10.37 (3d ed.). Although La.C.Cr.P. art. 814 does not list responsive verdicts for La. R.S. 14:37.4, La.C.Cr.P. art. 815 provides that “[i]n all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty; (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or (3) Not Guilty.” The Louisiana Supreme Court has held that La. R.S. 14:27(0 makes an attempt a lesser included offense of the charged crime. State v. Ford, 407 So.2d 688, 691 (La.1981).

Furthermore, it is evident from the record in this case that defendant’s charge of aggravated assault with a firearm was based on the latter definition of assault, i.e., the intentional placing of another in reasonable apprehension of receiving a battery. First, the trial court instructed the jury that assault is only “the intentional placing of another in reasonable apprehension of receiving a battery.” Second, the court instructed the jury that: “in order to find the defendant guilty of Aggravated Assault with a Firearm, you must find: (1) that the defendant discharged the firearm; and (2) that the defendant intentionally placed Thanh V. Tran in reasonable apprehension of receiving a battery with a firearm.” Therefore, the record supports a finding that the state’s theory of culpability rests on the alternative definition of assault and thus, pursuant to the reasoning discussed [i<¡above, the responsive verdict of attempted aggravated assault with a firearm is appropriate in this case. This assignment is without merit.

In his third assignment of error, defendant complains of the consecutive nature of his sentences. The trial court ordered defendant’s sentence on count four for possession of an unidentifiable firearm to be served consecutively with defendant’s sentence on count one for possession of marijuana with intent to distribute. Defendant challenges only the consecutive nature of his sentences and argues that the imposition of consecutive sentences on counts one and four results in an unconstitutionally excessive sentence.

The record reflects that defendant failed to file a motion to reconsider his sentence in the trial court. This Court has held that failure to file a motion to reconsider sentence or to state the specific grounds upon which the motion is based limits a defendant to a bare review of the sentence for unconstitutional excessiveness. State v. Hunter, 10-552 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272. Further, this Court has held that “when the consecutive nature of sentences is not specifically raised in the trial court ... the defendant is precluded from raising the issue on appeal.” State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411. In this case, defendant failed to file a motion to reconsider sentence or specifically object to the consecutive nature of his sentences in the trial court. Accordingly, defendant is not entitled to review of the consecutive nature of his sentences on appeal.

| ^CONCLUSION

For the reasons provided herein, defendant’s convictions and sentences are affirmed.

ERRORS PATENT

We have reviewed 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. 5 Cir.1990).

The record reveals that defendant’s sentence on his possession with intent to distribute marijuana conviction is illegally lenient because the trial court failed to impose the mandatory fíne. La. R.S. 40:966(B)(3) provides that a person convicted of this offense, “shall ... be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.” Therefore, defendant was exposed to a sentencing range of five to thirty years at hard labor and a fine of no more than fifty thousand dollars.

This Court has the authority to amend an illegally lenient sentence. La. C.Cr.P. art. 882. However, such authority is permissive rather than mandatory. State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, 224. While this Court has held that statutes providing for a fine of “not more than” a specified amount do require a mandatory fine, this Court has also recognized that the matter is not free from doubt. State v. Kerlec, 06-838 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626. See also State v. Francois, 06-0788 (La.App. 3 Cir. 12/13/06), 945 So.2d 865 (holding that when a trial court does not impose a fine in a situation where the statute authorizes a fine of “not more than” a certain amount, the court impliedly imposes a $0 fine and there is no error requiring remand.) Further, this Court has, as a matter of Indiscretion, refrained from amending an illegally lenient sentence to impose a fine in a criminal matter involving an indigent defendant. See State v. Pitt, 40 So.3d at 224.

in this case, where the state did not object at sentencing and where defendant is an indigent defendant, we decline to remand this matter for correction of any error in the trial court’s failure to impose a fine under La. R.S. 40:966(B)(3).

However, the record does contain an error patent that requires this Court to remand this matter to the trial court for correction of the commitment. The statutory restrictions on count four (possession of an unidentifiable firearm) in the commitment are not consistent with those in the transcript. The transcript indicates that the trial court sentenced defendant on count four without the benefit of probation, parole, or suspension of sentence. The commitment, on the other hand, indicates that the trial court sentenced defendant on count four without the benefit of probation or suspension of sentence. The restrictions as specified in the transcript are proper pursuant to La. R.S. 40:1792. 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); State v. Hall, 03-906 (La.App. 5 Cir. 5/26/04), 875 So.2d 996, 1007, writ denied, 04-1875 (La.12/10/04), 888 So.2d 834. However, the commitment must be corrected to reflect the restrictions imposed by the trial judge.

Accordingly, we remand this matter to the trial court for correction of the commitment to reflect that the trial court sentenced defendant on count four without the benefit of probation, parole, or suspension of sentence. The Clerk of Court for the Twenty-Fourth Judicial District Court is directed to transmit the original of the minute entry to the officer in charge of the institution to which |1fidefendant has been sentenced as well as to the legal department of the Department of Corrections. See La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam); State v. Shaw, 12-686 (La.App. 5 Cir. 1/16/13), 108 So.3d 1189, 1199.

AFFIRMED; REMANDED

      . No officers could locate defendant’s girlfriend, Katrice Batiste, for interview. However, detectives later interviewed an individual at the apartment, who identified himself as Katrice’s brother. He told investigating officers that his sister had a boyfriend named Shaun and that there had been a recent altercation between Shaun and Katrice. This individual showed officers a damaged screen door at the apartment, which he theorized resulted from the recent altercation.

      . At trial, defendant testified that in January and February of 2010, he was living with a cousin in Houma, but that he sometimes slept at his mother’s residence at 329 Pat Drive in Avondale. Defendant’s mother also testified that from 2008 to 2010, defendant did not live with her in Avondale, though he came by "every now and then.” Both defendant and his mother testified that defendant did not have an assigned bedroom at the residence. Defendant stated that he has slept throughout the house, in the living room and other rooms, including the bedroom where the officers recovered tire scale and his ID card. On the other hand, defendant's brother, Quan, offered conflicting testimony. Quan testified that in January of 2010, defendant resided at 329 Pat Drive in Avondale and slept there every night. Further, in defendant's statements to police, he provided his address as 329 Pat Drive in Avondale.

      . Prior to the statements, Detective Francis advised defendant of his Miranda rights with a rights of arrestee form. As the detective read defendant his rights, defendant initialed the form, indicating his understanding thereof. Defendant then signed his name, again indicating he wished to waive his rights and give a statement.

      . Defendant indicated that Detective Francis acted in this manner to get back at defendant’s mother, who defendant asserts had rebuffed the detective's advances in the past. Ms. Barnett testified that she has known Detective Francis since 2004, at which time they exchanged telephone numbers and Detective Francis asked Ms. Barnett out on a date. Ms. Barnett declined the detective’s advances. On rebuttal, Detective Francis denied these allegations, testifying that he has never had Ms. Barnett’s telephone number and that he never asked her out. He stated that he knows Ms. Barnett through prior investigations of incidents with Ms. Barnett's sons and from patrolling the neighborhood for years. He further testified that he did not force or threaten defendant into confessing, nor did he rewind and re-record the tape.

      . Detective Adrian Thompson also testified that the vehicle appeared inoperable. Defendant’s mother testified that one of her sons' friends often slept in the abandoned vehicle and that one of her son’s girlfriends had slept in the vehicle on one occasion.

      . Defendant’s mother testified that Tran called numerous times asking for the money from the television purchase. Tran, however, denied ever selling defendant a television.

      . It is well settled that the law in effect at the time of the commission of the offense applies. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520.

      . The jurisprudence supporting defendant's position relies on this comment. See State v. Presley, 99-802 (La.App. 3 Cir. 3/1/00), 758 So.2d 308 (wherein the Third Circuit vacated the defendant’s conviction pursuant to a guilty plea to attempted assault by drive-by shooting, citing the comments to La. R.S. 14:27); State v. Earnes, 365 So.2d 1361 (La.1978) (wherein the Louisiana Supreme Court held that there is no such thing as an attempt to incite a riot, citing the comments to La. R.S. 14:27); but see also State v. Jenkins, 09-1551 (La.App. 4 Cir. 6/30/10), 45 So.3d 173 (wherein the Fourth Circuit affirmed the defendant’s conviction of attempted aggravated assault upon a peace officer with a firearm).

      . The comment discussed originates from a 1940 edition of Clark and Marshall, Law of Crimes (4th Ed.1940) 156, § 114(d). The 1940 edition of Clark and Marshall, Law of Crimes also stated that a simple assault is “nothing more than an attempt to commit a battery.”

      . The current language in the article is identical to the language in the 1942 version of the article.

      . See 17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:37 (3d ed.) for an excellent discussion of the 1940 comment to the attempt article and its impact on responsive verdicts for La. R.S. 14:37.4 (aggravated assault with a firearm).

      . See 17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:37 (3d ed.) (stating that "[i]f the state will rely on a theory of placing the victim in apprehension, the attempt responsive verdicts should be given.... However, if the state utilizes the theory of attempt to commit a battery, the attempt verdicts are not responsive because the completed offense is in the nature of an attempt.”)

      . Nevertheless, a review of the record reflects that defendant’s complained of sentence on count four is not unconstitutionally excessive and is the mandatory sentence required under La. R.S. 40:1792.

      . The record reflects that defendant is represented on appeal by the Louisiana Appellate Project, which provides appellate legal services for indigent defendants in criminal matters.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Travis DENNIS.
    No. 12-KA-818.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Gretna, LA, for PlaintiffiAppellee.
    Prentice L. White, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

|2In this appeal, defendant, Travis Dennis, seeks review of his second degree murder conviction. For the reasons that follow, we affirm his conviction and sentence.

PROCEDURAL HISTORY

On May 6, 2010, a Jefferson Parish Grand Jury indicted defendant, Travis Dennis, with second degree murder of Ronald Smith, in violation of LSA-R.S. 14:30.1 (count one), and attempted first degree murder of Terineisha Ealy, in violation of LSA-R.S. 14:27 and LSA-R.S. 14:30 (count two). At the arraignment on May 7, 2010, defendant pled not guilty.

The matter proceeded to trial on August 23 and 24, 2011. After considering the evidence presented, the twelve-person jury found defendant guilty of second degree murder and not guilty of attempted first degree murder. On September 15, |a2011, the trial court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant was subsequently granted an out-of-time appeal.

FACTS

In the early morning hours of February 22, 2010, Ronald Smith was shot and killed in the area of Manhattan Boulevard and the Westbank Expressway in Jefferson Parish. The facts leading up to the shooting are as follows:

In the late evening hours of February 21, 2010, Ronald Smith and Terineisha Ealy were visiting with each other and decided to walk to the store. At some point, they encountered Dishall Davis, Smith’s former girlfriend, who asked them to buy her some cigarettes at the store. Smith and Ealy proceeded to the store and then returned to Smith’s apartment, but they did not buy Davis her cigarettes. Later that evening, at approximately 11:30, Davis knocked on Smith’s door looking for her cigarettes. After seeing Ealy in Smith’s apartment and finding out that Smith had not bought her the cigarettes, Davis got angry, walked up behind Smith, pulled his hair, and hit him. A physical altercation ensued between Smith and Davis, and Ealy had to break up the fight. When Smith then carried Davis out of the house by her jacket, she said she would call the police and report that he hit her. The two began fighting again, and Ealy broke up the fight for a second time. Smith and Ealy went inside. Davis left and called the police.

A couple of hours later, at approximately 1:30-2:00 a.m. on February 22, 2010, Ealy and Smith decided to walk to a nearby store. After they left the Exxon station, Ealy and Smith were walking through the parking lot of the daiquiri shop when she noticed a car coming with its “high beams” on. The car swerved right in front of them and stopped. According to Ealy, defendant hopped out of the car |4with a shotgun in his hand and said, “What that you told Dishall?” Ms. Ealy said that she and Smith looked at each other, not knowing what he was talking about because Smith had said nothing about him earlier during the altercation. Defendant then told Smith, “Lay it down. Give me what you got in your pockets.” As Smith was checking his pocket, defendant said, ‘You think I’m playing?” According to Ealy, Smith tried to turn around and run, but defendant shot at him. When Smith tried to run again, defendant shot at him a second time, causing Smith to fall.

Defendant then pointed the gun at Ealy and told her that he would kill her if she said anything. Defendant returned to his car, looked at Smith, and said, “Ha, ha. Rielow, boy I told you I was going to get you.” After defendant fled in his car, a Chevrolet Malibu, Ealy ran to the highway and flagged down a police officer. Deputy Jeffrey Reynolds of the Jefferson Parish Sheriffs Office responded to her call for help. As the officer exited his unit, Ealy informed him that her boyfriend had just been shot. Officer Reynolds went around the corner of the daiquiri shop to the parking lot where Ealy had directed him and observed a black male lying face down on the ground. Although medical assistance was sought, Smith was determined to be dead.

Ealy advised Deputy Reynolds that the shooter was someone she knew named Travis, who had been in a relationship with Dishall Davis. As a result of information obtained through police investigation, Detective Gary Barteet of the Jefferson Parish Sheriffs Office subsequently interviewed defendant. After being advised of his Miranda rights, defendant gave a statement and initially denied any involvement in Smith’s death. Defendant claimed that he got off of work after 8:00 p.m., went to his house, and never left. He admitted that he owned a Chevy pMalibu, but said it stayed parked at his residence all night. However, he subsequently gave another statement in which he admitted his involvement. In describing the incident as a “self-defense-type encounter,” defendant said that he went to confront Smith about the “foolishness” and Smith advanced toward him in an aggressive manner. He told the detective that he was unarmed, but then retreated to his vehicle to retrieve the shotgun after Smith advanced toward him.

At trial, defendant testified on his own behalf. According to defendant, on the night of the incident, he received a call from Davis who wanted him to go over to her residence. At approximately 2:00-3:00 a.m., he went to her apartment, but left when she did not answer her phone and he could not get in the apartment. As he left through the parking lot, he saw Smith and Ealy. Defendant approached Smith and asked why they were “beefing” over Davis. He claimed he was trying to “squash” what was going on between them over Davis, who went back and forth between them. According to defendant, Smith said he should have killed defendant and Davis, and Ealy was also “bad mouthing.” Defendant remained standing by his car, inside the driver’s doorway, unarmed, with the door open. He claimed that Smith was aggressive and had a bag and kept “running up” on him. Defendant told Smith to back up, but he kept approaching and running his mouth.

According to defendant, Smith dropped the bag, put his hand in his pocket, and made a “clutching” movement, as if he was trying to retrieve a gun or “something.” At this point, defendant retrieved his gun from the car, shot Smith, and left. Defendant testified that Smith’s movement like he was getting a gun made him fear for his life because he knew Smith always carried a gun.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. He specifically contends that the State |fifailed to prove that he had the specific intent to kill or cause great bodily harm and that, at most, he should have been convicted of manslaughter. Defendant further asserts that the killing was in self-defense because he thought his life was in danger when he confronted Smith about abusing Dishall Davis.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Under this standard, a review of a criminal conviction record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

When the trier of fact is confronted with conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to convict. Further, it is |7not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. State v. Sinceno, 12-118 (La.App. 5 Cir. 7/31/12), 99 So.3d 712, 718, writ denied, 12-2024 (La.1/25/13), 105 So.3d 713.

In order to support a conviction for second degree murder, the State was required to prove the killing of a human being by defendant, and that defendant had the specific intent to kill or inflict great bodily harm. See LSA-R.S. 14:30.1; State v. King, 11-767 (La.App. 5 Cir. 2/28/12), 88 So.3d 1147, 1152, writ denied, 12-0660 (La.9/14/12), 99 So.3d 35. Defendant challenges the specific intent element of this offense.

Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Sinceno, 99 So.3d at 719. Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. King, 88 So.3d at 1152. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Sinceno, 99 So.3d at 719.

Applying the evidence in this case to these legal principles, we find that the State carried its burden of proving that defendant acted with specific intent to kill or inflict great bodily harm. Defendant admitted that he shot the victim with a shotgun, and that the gun fired twice. Ealy, an eyewitness to the shooting, | ^identified defendant as the shooter and testified that the victim was attempting to run away when defendant shot the first time. She said the victim was shot at again as he continued to run. Moreover, Ealy testified that as defendant left the scene, he looked in the victim’s direction and said, “Ha, ha. Rielow, boy I told you I was going to get you.” Thus, the State proved beyond a reasonable doubt that defendant acted with specific intent to kill or inflict great bodily harm.

Defendant does not deny that he shot the victim, but suggests that he acted in self-defense. He contends that when he confronted the victim about abusing Dis-hall Davis, the victim made a movement that led defendant to believe that he was trying to retrieve a gun. Thinking his life was in danger, defendant got his weapon and shot first.

When a defendant in a homicide prosecution claims self-defense or the defense of another, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another. State v. Reed, 11-507 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-0644 (La.9/14/12), 97 So.3d 1014. The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. LSA-R.S. 14:18. According to LSA-R.S. 14:20(A)(1), a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know his desire is to withdraw and discontinue the conflict. LSA-R.S. 14:21. In addition, while there is no ^unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. King, 88 So.3d at 1153.

The determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. State v. Sinceno, 99 So.3d at 720.

In the instant case, the jury was presented with two versions of the events at the time of the shooting. The State presented evidence that as Smith and Ealy were walking in the parking lot, defendant swerved his car right in front of them and stopped. Defendant exited the vehicle with a gun in his hand and confronted Smith about the situation involving Davis. Defendant then told Smith to “give me what you got in your pockets.” As Smith checked his pocket, defendant said, “You think I’m playing?” Smith then tried to turn around and run, but defendant shot at the unarmed victim. Smith continued in his attempts to flee until he was shot again and fell to the ground.

Another witness, Michael Walker, observed a vehicle pull up in a parking lot near a black male and a black female who were walking. Walker watched a person jump out of the vehicle with something long in his hand. He saw the person run behind the daiquiri shop and then heard a “pow.” Walker heard another shot and a female screaming. This witness then observed someone run back to the Chevrolet Malibu and speed off.

In contrast to this testimony, defendant testified that when he saw Smith and Ealy walking in the parking lot, he stopped his car and asked Smith why they were 110“beefing” over Davis. Defendant claimed he was trying to “squash” what was going on between them over Davis, who went back and forth between them. According to defendant, Smith said that he should have killed him and Davis. At this time, defendant testified that he was unarmed and that he remained standing by his car, inside the open driver’s door. However, Smith became aggressive and kept approaching defendant. Even though defendant told Smith to back up, Smith kept coming toward defendant and running his mouth. Smith then dropped the bag he was carrying, put his hand in his pocket, and made a “clutching” motion, as if he was trying to retrieve a gun. It was at this point that defendant retrieved the shotgun from his vehicle and shot Smith. Defendant claimed that he feared for his life when he saw Smith’s “clutching” motion because he knew Smith regularly carried a gun and had pulled a gun on defendant on previous occasions.

The jury heard this conflicting testimony and apparently gave more credit to the version of events as portrayed by the State witnesses. As such, the jury could have reasonably concluded that defendant could not have believed that he was in imminent danger of losing his life or receiving great bodily harm when the victim was not attacking him, was attempting to run away, and was unarmed. Therefore, we find that the State proved beyond a reasonable doubt that defendant did not act in self-defense.

On appeal, defendant also suggests that the evidence at best supported a verdict of manslaughter. Defendant contends that when he approached Smith, he was overwhelmed with anger and “lost control” because Smith had brutally beaten Davis earlier that evening.

LSA-R.S. 14:31(A)(1) defines manslaughter as a homicide that would be either first or second degree murder, “but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive |1Tan average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.”

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors that may reduce the grade of the offense. In order to be entitled to the lesser verdict of manslaughter, a defendant is required to prove the mitigatory factors by a preponderance of the evidence. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. State v. Arias-Chavarria, 10-116 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 431-32. The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Sinceno, 99 So.3d at 721.

In the instant case, as evidenced by its verdict of second degree murder, the jury obviously rejected the responsive verdict of manslaughter. The evidence supports the jury’s determination.

As noted by the State in its appellate brief, at trial defendant did not claim “sudden passion” or “heat of blood.” At trial, evidence was presented that there was a physical altercation between Dishall Davis and the victim several hours prior to the shooting of the victim by defendant. However, defendant was not present at the time of the altercation, and during his trial testimony, defendant never specifically testified that he knew about the details of the altercation that had occurred hours before. In fact, defendant testified that Davis called him and wanted him to go over to her apartment. Defendant did, but then left after Davis 112did not answer the phone and he could not get into the apartment. As defendant left through the parking lot, he saw Smith and Ealy walking. At trial, defendant testified regarding his reasons for confronting Smith. He claimed that he approached Smith and asked why they were “beefing” over Davis. Further, defendant testified that he wanted to “squash” the issues between him and the victim over Davis. He never claimed that he was angry or wanted to confront the victim regarding the abuse he had supposedly inflicted on Davis.

During his trial testimony, defendant also claimed that at the time of his encounter with Smith, Smith was “running up” on him and approaching him. Defendant did not claim that the victim touched him. Defendant further asserted at trial that the victim was “running off at the mouth.” However, words or gestures, regardless of how insulting, are not sufficient to reduce a homicide from murder to manslaughter. State v. Sinceno, 99 So.3d at 721. Moreover, Ealy testified that the victim was shot as he was attempting to run from defendant and further that defendant did not have a gun on him at the time of the shooting.

Considering the circumstances of this case, defendant’s actions, and the victim’s injuries, we find that the evidence was constitutionally sufficient to support the jury’s finding that defendant had the specific intent to kill or inflict great bodily harm on the victim and that defendant did not act in self-defense. Accordingly, the arguments raised by defendant relating to the sufficiency of the evidence used to convict him of second degree murder are without merit.

ERROR PATENT REVIEW

We have also reviewed the record 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). Our review reveals a discrepancy between the commitment and transcript with regard to the hard labor provision of 1 ^defendant’s sentence. Although the commitment reflects that defendant’s sentence was imposed at hard labor, the transcript does not reflect that the judge ordered the sentence be imposed at hard labor or provided that the sentence would be served with the Department of Corrections.

LSA-C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the applicable sentencing statute allows discretion, the failure to indicate whether the sentence is to be served at hard labor is an impermissible indeterminate sentence. State v. Norman, 05-794, p. 8 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La.1/12/07), 948 So.2d 145. Defendant was sentenced pursuant to LSA-R.S. 14:30.1, which mandates the sentence be served at hard labor. As such, the trial court’s failure to state that the sentence was imposed at hard labor is harmless error and no corrective action is required. See State v. Norman, supra, and State v. Franklin, 11-216 (La.App. 5 Cir. 12/28/11), 87 So.3d 860, 881, writ denied, 12-0337 (La.9/12/12), 98 So.3d 811.

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

AFFIRMED

      . It is noted that there are discrepancies in the record with regard to the spelling of Ms. Ealy's first name. In the indictment, her first name is spelled "Tereinisha,” and in the transcript, it is spelled "Terineisha” and "Tennei-sha.”

      . Ms. Ealy testified that she had known Ronald Smith for about two years prior to the shooting, but had started dating him on the night of February 21, 2010.

      . At trial, it was stipulated that Smith died of a gunshot wound to the middle of his chest.

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

      . Ms. Ealy testified that she knew Ronald Smith as "Rielow.”


author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Robert L. WILSON.
    No. 12-KA-819.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

\ STATEMENT OF THE CASE

On September 25, 2009, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Robert L. Wilson, with two counts of attempted first degree murder, in violation of LSA-R.S. 14:27 and LSA-R.S. 14:30, and two counts of armed robbery, in violation of LSA-R.S. 14:64. Defendant pled not guilty to these charges. On April 12, 2010, the State dismissed the two counts of attempted first degree murder. Defendant then withdrew his not guilty pleas and pled guilty to the two counts of armed robbery. He was sentenced to 25 years imprisonment at hard labor on each count, to run concurrently. These sentences were also ordered to be served without benefit of parole, probation, or suspension of sentence. On August 6, 2012, defendant was granted an out-of-time appeal.

FACTS

Defendant pled guilty to two counts of armed robbery. During the guilty plea colloquy, the State asserted that if defendant proceeded to trial, it would prove that defendant and co-defendant, Christopher Cosey, violated LSA-R.S. 14:64 on July 27, 2009. The bill of information adds that in Jefferson Parish, defendant and |3Cosey violated LSA-R.S. 14:64 on or about July 27, 2009, by robbing Angel Morales and Eric Gulley of the Ra Shop while armed with a dangerous weapon-a handgun.

LAW AND DISCUSSION

In his sole assignment of error, defendant argues that the trial court erred in failing to inform him of the elements of armed robbery before accepting his guilty pleas, in violation of LSA-C.Cr.P. art. 556.1, which provides that a trial court shall inform the defendant of the nature of the charge to which he is pleading prior to accepting a guilty plea in a felony case. Defendant contends that there is a complete absence of any discussion with defendant regarding the nature of the crime, its elements, or the underlying facts relative to the charges. He claims that the mere reference to the crime by name and statutory number was inadequate. Defendant requests that he be given the opportunity to withdraw his guilty pleas, if he so desires.

The State responds that the trial court’s failure to articulate the elements of the offense prior to accepting defendant’s plea of guilty is harmless. The State explains that the transcript and guilty plea form reflect that defendant was advised that he was pleading guilty to two counts of armed robbery. Defendant was also advised as to the sentencing exposure he faced, and the sentences he would receive. The State responds that although the court did not articulate each and every element of the offense of armed robbery, defendant affirmatively responded that he did commit the two armed robberies on July 27, 2009, with his co-defendant, Christopher Cosey, and that he believed it was in his best interest to plead guilty as charged. The State concludes that even if the trial court erred in advising defendant, the record does not show that his knowledge and ^comprehension of the full information would have likely affected his willingness to plead guilty, and therefore, any such error would be harmless.

LSA-C.Cr.P. art. 556.1 outlines the duty of the court when accepting a plea of guilty or nolo contendere in felony cases, providing, in pertinent part:

A. In a felony case, the court shall not accept a plea of guilty or nolo conten-dere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

(Emphasis added).

The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. State v. Howard, 11-1155, p. 8 (La.App. 5 Cir. 5/22/12), 91 So.3d 564, 570. Violations of Article 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. Id. To determine whether a violation of Article 556.1 is harmless, the proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Howard, 11-1155 at 8, 91 So.3d at 570.

Subsection E of LSA-C.Cr.P. art. 556.1 further provides that “[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” The failure to fully comply with Article 556.1 is a statutory breach, rather than a constitutional breach, and thus, the defendant is required to show prejudice as a result of the error. State v. Ott, 12-111, p. 11 (La.App. 5 Cir. 10/16/12), 102 So.3d 944, 952.

In State v. Strattman, 08-674, p. 7 (La.App. 5 Cir. 4/28/09), 13 So.3d 1129, 1133, writ denied, 09-1157 (La.1/22/10), 25 So.3d 130, the defendant asserted an argument of non-compliance with Article 556.1. In that case, neither the waiver of rights form nor the plea colloquy specifically advised defendant that he was pleading guilty to possession with intent to distribute cocaine and hydrocodone. Rather, the only reference to the nature of the charges to which defendant was pleading was to the statutory citations. Strattman, 08-674 at 7, 13 So.3d at 1133. Also, the transcript of the plea colloquy did not show that the bill of information was read to the defendant. Id. In Strattman, this Court stated as follows:

While is it arguable that the trial court failed to ascertain that defendant understood the nature of the underlying charges to which he was pleading in accordance with LSA-C.Cr.P. art. 556.1, defendant does not allege any misunderstanding as to the nature of the charges to which he pled or that he did not intend to plead guilty. Rather, defendant asserts the argument of non-compliance with LSA-C.Cr.P. art. 556.1, for the first time on appeal, solely in an apparent attempt to circumvent LSA-C.Cr.P. art. 881.2, which prohibits appellate review of a sentence imposed in conformity with a valid plea agreement. In fact, in his appellate brief, defendant never asks that his guilty plea be set aside but instead asks that his sentence be vacated as constitutionally excessive and the matter remanded for resentenc-ing.
The record does not show that defendant lacked awareness of the nature of the offenses to which he was pleading. Consistently throughout the plea colloquy, defendant indicated he understood he was pleading guilty to two offenses under LSA-R.S. 40:967(A) and that he understood the consequences of his plea.
Defendant never asked any questions throughout the plea colloquy or expressed any confusion. He denied any force or coercion had been used against him in obtaining the guilty plea. Additionally, the record clearly reflects that defendant was properly Boykinized. Thus, it appears any error in the trial court’s failure to comply with Article 556.1 in ascertaining defendant’s understanding of the nature of the two underlying charges to which he was pleading guilty was harmless.

Strattman, 08-674 at 7-8, 13 So.3d at 1133-34.

In the present case, defendant was represented by counsel, who presumably explained the nature of the charges to give him notice of what he was being asked | fito admit. Furthermore, the transcript also shows that defendant was adequately made aware of the nature of the offense to which he was pleading.

Defendant was present when his attorney said that he was pleading guilty to two counts of armed robbery. The trial judge requested confirmation that defendant was pleading guilty to two counts of armed robbery, and defendant responded affirmatively. Although the factual basis given by the .State did not include the name of the offense, it did provide the statute number and the date of the offenses. The factual basis also indicated that the offenses were committed with co-defendant, Christopher Cosey. After the State provided the factual basis of the offenses, the trial judge asked defendant if he had committed the crimes as described by the State, and defendant responded affirmatively, without asking any questions. Defendant acknowledged that he understood the terms and conditions of the waiver of rights form, which he signed and initialed. He was also advised of his Boy-kin rights and agreed that he had not been forced or coerced into pleading guilty.

Even if the trial court erred in not fully advising defendant of the nature of the offenses to which he was pleading guilty, the record does not show that defendant’s knowledge and comprehension of the full information would have likely affected his willingness to plead guilty. Defendant agreed he was pleading guilty to two counts of armed robbery, knowing the sentencing exposure he faced and the sentences he would receive if the judge accepted his pleas. Also, the State dismissed two counts of attempted first degree murder in which defendant was 17charged. Defendant acknowledged that he believed the guilty pleas were in his best interest, and his counsel agreed.

Defendant does not allege that he did not intend to plead guilty or that he did not understand the nature of the charges against him. Defendant fails to argue how any more explanation of the elements of the offense would have affected his willingness to plead guilty to the two counts of armed robbery. Consequently, defendant failed to establish that he lacked awareness of the elements or that he was unaware of the essential nature of the offenses to which he pled. The record does not show sufficient prejudice to support defendant’s claim. Accordingly, any such error regarding an advisal as to the nature of the offenses was harmless, and this assignment of error is without merit.

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

The commitment lacks clarity as to the sentences imposed. The transcript reflects that a sentence was imposed for each of the two armed robbery convictions. The transcript also reflects that both sentences were ordered to run concurrent with one another and to be served without benefit of parole, probation, or suspension of sentence. The commitment reflects that defendant was sentenced to “25 years Hard Labor on counts 4, 5 concurrently with all counts.” The commitment also reflects the following: “Sentence to be served without benefit of parole, probation, or suspension of sentence.”

The commitment does not clearly specify that defendant received a 25-year sentence for each count and that each count was ordered to be served without ^benefit of parole, probation, or suspension of sentence. As such, we remand the matter and order the trial court to correct the commitment to specify that defendant received a 25-year sentence at hard labor on each count and that each sentence is to be served without benefit of parole, probation, or suspension of sentence. We further direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

DECREE

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

AFFIRMED

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

      . This Court has previously stated that when a defendant is represented by counsel, the trial court accepting his guilty plea may presume that counsel has explained the nature of the charge in sufficient detail that the defendant has notice of what his plea asks him to admit. State v. Farinas, 09-396, pp. 13-14 (La.App. 5 Cir. 11/24/09), 28 So.3d 1132, 1140-41, writ denied, 10-0086 (La.6/25/10), 38 So.3d 335, citing Henderson v. Morgan, 426 U.S. 637, 644-647, 96 S.Ct. 2253, 2257-59, 49 L.Ed.2d 108 (1976).

      . Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Lilronald WILLIAMS.
    No. 12-KA-837.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Lilronald Williams, has appealed his sentences imposed as a result of his two convictions for armed robbery. For the following reasons, we vacate the sentences and remand the matter for re-sentencing.

FACTS AND PROCEDURAL HISTORY

On August 12, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of armed robbery in violation of La. R.S. 14:64. Specifically, the bill reflected that the robberies were committed with a “Handgun as per 14:64.3.” Defendant proceeded to trial, and on July 1, 2010, a 12-person jury returned verdicts of guilty as charged on both armed robbery counts. On July 23, 2010, defendant filed a motion for a new trial, arguing that the verdict was contrary to the law and the evidence, that defendant had discovered a prejudicial error since the verdict, and that the ends of justice required a new trial.

IsOn September 17, 2010, defendant was sentenced to twenty-five years imprisonment on each count, to run concurrently ■with each other. After sentencing, defendant orally noted his intention to appeal the jury verdict. On October 15, 2010, defendant filed a motion to reconsider sentence, arguing that his sentences were excessive and harsh. A written notice of appeal was also filed on that date.

On appeal, this Court pretermitted defendant’s assigned errors, vacated defendant’s sentences, and remanded the matter for a ruling on defendant’s motion for a new trial. State v. Williams, 11-65 (La.App. 5 Cir. 12/13/11), 81 So.3d 908.

The record on remand indicates that defendant appeared on February 3, 2012 for resentencing; however, the minute entry for that date indicates that defendant expressed that he wanted to retain other counsel for resentencing and his resen-tencing was accordingly continued. Thereafter, on July 25, 2012, defendant filed a brief in support of sentencing. On July 27, 2012, defendant’s motions for a new trial and to reconsider sentence were denied. He was then resentenced to concurrent 25-year terms of imprisonment with the Department of Corrections on each count, to be served without the benefit of parole, probation, or suspension of sentence.

On August 16, 2012, defendant filed a written motion for appeal, which was granted.

ANALYSIS

In this, his second appeal, defendant argues that the trial judge failed to adhere to the 24-hour sentencing delay in accordance with La.C.Cr.P. art. 873 Rwhen he sentenced defendant immediately after the denial of defendant’s motion for a new trial. Defendant also argues that the sentences imposed were excessive.

Upon review of the record in advance of addressing defendant’s assignment of errors, we note that when he resentenced defendant, the trial judge failed to reference the mandatory five-year firearm enhancement provision required by La. R.S. 14:64.3. Accordingly, we find that the trial judge imposed indeterminate sentences in this case for defendant’s armed robbery convictions.

La. R.S. 14:64.3(A) provides as follows: When the dangerous weapon used in the commission of the crime of 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. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

Although the State filed a bill of information that referenced La. R.S. 14:64.3, the jury charges did not reference “armed robbery with a firearm.” Rather, the jury was instructed as to armed robbery with a dangerous weapon. Further, the written jury verdict sheet did not reference “armed robbery with a firearm.” At trial, however, the State presented evidence to show that guns were the only weapons used in the commission of the armed robberies.

In sentencing defendant, the trial judge did not reference La. R.S. 14:64.3, nor did he state that he was imposing an additional consecutive period of incarceration when imposing the two 25-year armed robbery sentences. The record is clear that the State intended to utilize the provisions of La. R.S. 14:64.3; thus, the sentences imposed for the armed robbery convictions are indeterminate | ^because the trial judge did not state whether the sentences included the firearm enhancement. State v. Dorsey, 11-745 (La.App. 5 Cir. 4/24/12), 94 So.3d 49, 61, writ denied, 12-998 (La.10/12/12), 99 So.3d 39. In prior cases before this Court in which the trial court did not impose an additional penalty enhancement for the use of a firearm, this Court has held that the trial judge imposed an indeterminate sentence, which constituted an error patent, and required that the sentence be vacated and the matter be remanded for resentencing. State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, 109, writ denied, 10-2556 (La.4/8/11), 61 So.3d 681; State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1094-95, writ denied, 09-1394 (La.2/26/10), 28 So.3d 268.

Thus, because the trial judge failed to impose the mandatory five-year firearm enhancement sentences required by La. R.S. 14:64.3, we find that the sentences imposed are indeterminate. Accordingly, these sentences are vacated and this matter is remanded for resentencing. This ruling necessitates that we pretermit any discussion of defendant’s assignments of error.

CONCLUSION

For the foregoing reasons, defendant’s sentences are vacated and this matter is remanded for resentencing.

SENTENCES VACATED; REMANDED WITH INSTRUCTIONS

      . Defendant has not raised any assignments of error as to his convictions.

      . In State v. Dorsey, 11-745 (La.App. 5 Cir. 4/24/12), 94 So.3d 49, 61, writ denied, 12-0998 (La.10/12/12), 99 So.3d 39, and State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, 109, writ denied, 10-2556 (La.4/8/11), 61 So.3d 681, this Court recognized that the trial judge imposed indeterminate sentences in light of a reference by the State to La. R.S. 14:64.3 in the bills of information, even though the jury verdict sheet and the jury charges did not reference "armed robbery with a firearm,” when the State presented evidence at trial that guns were the only weapons used in the commission of the armed robberies.

      . The same result was reached in State v. Long, 11-313, 11-314 (La.App. 5 Cir. 12/13/11), 81 So.3d 875, writ denied, 12-0251 (La.8/22/12), 97 So.3d 367, where this Court vacated the defendant's multiple offender sentence of 99 years, finding that it was indeterminate because the trial court failed to impose the mandatory five-year firearm enhancement sentence required by La. R.S. 14:64.3, and in State v. Sam, 11-470 (La.App. 5 Cir. 2/14/12), 88 So.3d 587, 590, where this Court found that the defendant’s sentence was indeterminate and illegally lenient because of the apparent failure of the trial court to impose a separate, consecutive five-year firearm enhancement. See also State v. Berroa-Reyes, 12-581 at 21-22 (La.App. 5 Cir. 1/30/13), 109 So.3d 487, where this Court recognized on error patent review that the trial judge did not specify what portion, if any, of the defendant’s 25-year sentence included the firearm enhancement penalty under La. R.S. 14:64.3, found the sentence indeterminate, vacated the sentence, and remanded for resentencing.


text:
    STATE of Louisiana v. Vittorio DIPIETRO.
    No. 12-KA-820.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Miles D. Ranier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

| ¡.Defendant, Vittorio Dipietro, has appealed his conviction of theft of goods, valued at between one hundred and five hundred dollars, in violation of La. R.S. 14:67.10. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 26, 2005, defendant was arrested for theft. On May 11, 2005, the Jefferson Parish District Attorney filed a bill of information charging defendant with theft of goods, valued at between one hundred and five hundred dollars. On July 13, 2005, defendant was arraigned and pled not guilty. A pretrial hearing was set for August 8, 2005. Defendant appeared on that date and the court set a “status on drug court” hearing for September 6, 2005. This status hearing was continued to November 3, 2005, as the court was closed on September 6, 2005 due to Hurricane Katrina. Defendant did not appear on November 3, 2005, and the matter was continued at the request of the State and reset for January 24, 2006. Defendant did not appear on that date, and the matter was continued until February 22, 2006 |aat the request of the State. The record reflects that defendant was arrested on September 8, 2006. On September 28, 2006, defendant signed an appearance bond agreeing to appear in court in this matter on November 16, 2006. Defendant did not appear before the court on November 16, 2006 and an attachment for his arrest was issued. On January 5, 2011, defendant was arrested, and the attachment was satisfied.

On May 11, 2011, defendant filed a motion to quash the bill of information filed against him, arguing that the time period for commencement of trial had elapsed. On that same date, the trial court heard and denied defendant’s motion to quash. On August 18, 2011, defendant pled guilty to the bill of information filed against him and was sentenced to two years at hard labor with credit for time served. On that same date, the State filed a multiple bill alleging defendant to be a second felony offender. Defendant then pled guilty to the multiple bill, the original sentence was vacated, and defendant was re-sentenced as a multiple offender to two years at hard labor. On August 1, 2012, the trial court granted defendant’s request for an out-of-time appeal.

ASSIGNMENT OF ERROR

In his only assignment of error on appeal, defendant argues that the trial court erred in denying his motion to quash. Although defendant concedes the time limit to commence trial, provided for in La. C.Cr.P. art. 578(A)(2), was interrupted by his failure to appear for the November 16, 2006 hearing date, he asserts that the time limit began to run anew on August 15, 2008 when he was arrested in St. Bernard Parish. He contends that Jefferson Parish authorities were notified by St. Bernard Parish authorities that he was in custody in St. Bernard Parish, but that Jefferson Parish authorities did not act to retrieve him prior to his release from St. Bernard Parish. Therefore, defendant argues that the State had two years from |4August 15, 2008 to bring his case to trial, but failed to do so. Thus, defendant contends that the case is prescribed and the trial court should have granted his motion to quash.

The State agrees that the two-year time limitation to commence trial was interrupted pursuant to defendant’s failure to appear in court on November 16, 2006. However, the State contends that the time limitation did not begin to run anew until January 5, 2011, the date defendant was arrested and the Jefferson Parish attachment was satisfied. The State argues that it had two years from January 5, 2011, or until January 5, 2013, to commence trial against defendant. Defendant pled guilty on August 18, 2011. Thus, the State concludes that the trial court correctly denied the motion to quash.

Pursuant to La.C.Cr.P. art. 578(A)(2), the State must commence trial within two years from the date of institution of prosecution in non-capital felony cases. Therefore, in this case, the State had two years from May 11, 2005, the date the bill of information was filed, to commence trial.

When a defendant has filed an apparently meritorious motion to quash based on prescription, the State bears a heavy burden of demonstrating either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Smith, 07-959 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 835. An appellate court may reverse a trial court’s ruling on a motion to quash only if it finds an abuse of discretion. Id.

La.C.Cr.P. art. 579(A)(3) provides that the time period set forth in article 578(A)(2) is interrupted if defendant “fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.” In the instant case, the record indicates that the time limitation of La. C.Cr.P. art. 578(A)(2) to commence trial was interrupted pursuant to La.C.Cr.P. art. 579(A)(3) because defendant failed to 1 ^appear for the November 16, 2006 hearing, of which his actual notice appears in the record.

On appeal, defendant contends that the period of limitation began to run anew on August 15, 2008, when he was arrested in St. Bernard Parish. Defendant asserts that St. Bernard Parish authorities notified Jefferson Parish authorities of his incarceration, but that Jefferson Parish authorities failed to retrieve him prior to his release from St. Bernard Parish. The State contends there was no record that Jefferson Parish authorities were notified that defendant was in custody in St. Bernard Parish and thus the period of limitation to commence trial did not begin to run anew until January 5, 2011, when defendant was arrested in Jefferson Parish and the attachment was recalled.

In State v. Baptiste, 08-2468 (La.6/23/10), 38 So.3d 247 (per curiam), relied on by defendant, the defendant failed to appear for a pre-trial conference in a matter in Plaquemines Parish. The defendant was incarcerated in St. Charles Parish subsequent to the issuance of the arrest warrant in Plaquemines Parish. The Louisiana Supreme Court found that the State did not have a duty to monitor the status of an outstanding arrest warrant in another parish. The court held that the interruption in the time delays for institution of prosecution ended only when the St. Charles Parish authorities contacted officials in Plaquemines Parish to inform them of defendant’s impending release and their discovery of the arrest warrant against him in their parish.

Baptiste, supra, is distinguishable from the instant case because there is nothing in the record before us indicating that St. Bernard Parish authorities notified Jefferson Parish authorities of defendant’s incarceration. Further, the | firecord is void of any evidence indicating that Jefferson Parish authorities were even aware of defendant’s arrest and incarceration in St. Bernard Parish.

In State v. Romar, 07-2140 (La.7/1/08), 985 So.2d 722, the Louisiana Supreme Court found that the State bears no affirmative duty to search for a defendant who fails to appear at a proceeding pursuant to actual notice, even where the State could have seemingly found the defendant.

Therefore, in accordance with Ro-mar, supra, the State had no obligation to search for defendant and the time limit set forth in La.C.Cr.P. art. 578(A)(2) began to run anew only when defendant was arrested on the attachment on January 5, 2011. Accordingly, the State had until January 5, 2013 to commence trial. Defendant pled guilty on August 18, 2011, prior to the expiration of this time limitation. Thus, the trial court correctly denied defendant’s motion to quash. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). This review reveals no errors patent in this case.

CONCLUSION

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

AFFIRMED

      . This actual notice consists of an appearance bond signed by defendant, in which he agrees to appear in court on November 16, 2006.