author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Daryl A. SMITH a/k/a Daryl Vinet.
    No. 12-KA-247.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Rachel Yazbeck, Attorney at Law, New Orleans, LA, for Appellant, Daryl A. Smith a/k/a Daryl Vinet.

      Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

| ¡¿Defendant, Daryl A. Smith aka Daryl Vinet, appeals his convictions, challenging the sufficiency of the evidence presented at trial. For the reasons that follow, we affirm.

Procedural History

On October 19, 2010, the Jefferson Parish District Attorney filed a five-count bill of information charging defendant, Daryl A. Smith aka Daryl Vinet, with (1) possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1; (2) possession of a handgun while in possession of cocaine, in violation of La. R.S. 14:95(E); (3) possession of a handgun while in possession of heroin, in violation of La. R.S. 14:95(E); (4) possession with intent to distribute heroin, in violation of La. R.S. 40:966(A), and; (5) possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A). On the following date, defendant was arraigned and pled not guilty to these charges.

On December 1, 2010, the State amended the bill of information to dismiss the charges for (2) possession of a handgun while in possession of cocaine, in |sviolation of La. R.S. 14:95(E) and (3) possession of a handgun while in possession of heroin, in violation of La. R.S. 14:95(E). That day, defendant proceeded to trial before a twelve-person jury, which found him guilty as charged of the remaining three counts of the bill of information.

On December 9, 2010, the trial court sentenced defendant as a felon in possession of a firearm to 15 years imprisonment in the Department of Corrections; for possession with intent to distribute heroin to 30 years imprisonment with the first five years without benefit of parole, probation, or suspension of sentence; and, for possession with intent to distribute cocaine to 30 years imprisonment with the first two years without benefit of parole, probation, or suspension of sentence. The court imposed each sentence to run concurrently with each other.

Additionally, on December 9, 2010, the State filed a multiple offender bill of information, charging defendant as a fourth felony offender. On the same date, defendant stipulated to being a fourth felony offender. The trial judge thereafter vacated defendant’s original sentence for possession with intent to distribute heroin and imposed an enhanced sentence of 30 years without benefit of probation or suspension of sentence with the first five years without any benefits. Next, the trial judge vacated defendant’s original sentence for possession with intent to distribute cocaine and imposed an enhanced sentence of 30 years without benefit of probation or suspension of sentence with the first two years without any benefits.

On February 23, 2011, defendant filed a motion for an out-of-time appeal, which was subsequently granted. This appeal follows.

|4Facts

In late September of 2010, Detective Tim Anclede of the Jefferson Parish Sheriffs Office (“JPSO”) began an investigation into illegal drug activity, which included surveillance of a residence at 8009 Macon Street in Jefferson Parish. Daryl Smith was seen entering and exiting the residence numerous times. After a few days, Detective Anclede requested and obtained a warrant to search the residence.

On October 4, 2010, Detective Anclede and other members of JPSO, including Detective Keith Locascio, executed the search warrant. After the officers entered the residence, they found defendant asleep in one of the bedrooms. After Detective Locascio advised defendant of his Miranda rights, Detective Anclede advised defendant that JPSO would be bringing a drug-detecting canine to help in executing the search warrant. Defendant advised that he had a weapon under the mattress where he had been sleeping.

When the drug-detecting dog entered that bedroom, the dog alerted, or “hit,” on a white jacket in the closet, a pair of black jeans on the floor, and a small measuring scale with white powder residue on a shelf near the bed. The dog did not alert in any other room of the residence.

Based on the alerts in that bedroom, JPSO seized from the pocket of a white jacket in the closet: (1) a clear plastic bag of white substance, which was later determined to be cocaine and (2) a plastic bag of another substance, which was later determined to be heroin. Further, JPSO also seized from a pair of black jeans on the floor next to defendant’s bed: (3) $1330.00 in cash, mainly $20.00 bills; (4) [5two small, clear plastic bags with a white substance, later determined to be cocaine; and (5) a wallet with defendant’s State identification card.

Next, the officers seized (6) a small, digital scale with a (7) razor blade on it; (8) small, clear sandwich bags; (9) two cell phones; (10) aluminum foil; and (11) correspondence addressed to defendant at Macon Street from the bedroom. Detective Anclede testified that defendant admitted that the clothing in the closet was his. Finally, JPSO seized two loaded firearms, which were hidden between the mattress and box spring of defendant’s bed, and ammunition suitable for use in those firearms.

Detective Anclede testified that, when defendant was asked about the money in the pocket, he explained that he works for friends and gets paid in cash. In a taped statement given after defendant waived his constitutional rights, defendant admitted that the two handguns; 8.3 grams of cocaine; and 8 grams of heroin belonged solely to him.

Marcel Folse of the Jefferson Parish Sheriffs Office Crime Lab, who was accepted as an expert in the field of controlled dangerous substance analysis, specifically cocaine and heroin, testified that the white powder in a clear plastic bag was cocaine, with a gross weight of 9.18 grams. Further, Folse testified that the tan powder in a separate, clear, plastic bag was heroin, with a gross weight of 8.03 grams. Finally, the substances in the two small, plastic bags were 0.61 grams of cocaine and 0.28 grams of cocaine.

Lieutenant Daniel Jewell, Jr. of the JPSO was accepted as an expert in the field of narcotics investigation. In this capacity, he testified that three primary factors are used to evaluate whether an offender is charged with distribution: [ (¡quantity, value, and packaging. In his opinion, the amount of cocaine and heroin seized in this case were consistent with distribution, rather than personal use.

Further, the State presented certified conviction packets of two previous convictions, which matched fingerprints taken from defendant on the morning of trial by an expert in fingerprint analysis. Based on the foregoing, the jury found defendant guilty as charged of being a felon in possession of a firearm; possession with intent to distribute heroin; and possession with intent to distribute cocaine.

Law and Analysis

On appeal, defendant argues that the evidence presented at trial was insufficient to support his convictions of possession of a firearm by a convicted felon, possession with intent to distribute cocaine, and possession with intent to distribute heroin. The State responds that the evidence presented was sufficient to convict defendant of these offenses.

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). 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.

| /‘Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01); 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00); 772 So.2d 78, 83.

First, defendant challenges the evidence relating to his conviction for felon in possession of a firearm. In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had (1) possession of a firearm; (2) a prior conviction for an enumerated felony; (3) an absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. La. R.S. 14:95.1; State v. Jones, 09-688 (La.App. 5 Cir. 2/9/10); 33 So.3d 306, 314.

Here, defendant does not challenge the prior felony conviction or the requisite ten-year statutory period of limitations. Defendant argues rather that the State failed to present evidence that defendant possessed the weapon and that he had the requisite intent to possess the weapon.

Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1. Constructive possession is sufficient to satisfy the | ^element of possession. Jones, supra. A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. Id.

Courts have regularly found that a gun placed under the mattress of a bed where the defendant sleeps is subject to his dominion and control. State v. Roundtree, 44,817 (La.App. 2 Cir. 3/3/10); 41 So.3d 512, 515. Further, in State v. Johnson, 98-604, 98-605 (La.App. 5 Cir. 1/26/99); 728 So.2d 901, 907-08, writ denied, 99-0624 (La.6/25/99); 745 So.2d 1187, this Court found that the defendant had constructive possession of a gun found lying between the mattress and box springs of the defendant’s bed.

In the present case, defendant advised the police prior to the discovery of the firearms that there was a gun under his mattress. Further, the officers found two loaded firearms under the mattress where defendant had been sleeping when the police opened the door to the bedroom. As such, the jury could have found that defendant was in constructive possession of the firearms found in his bedroom and knowingly possessed the firearms in light of the location of the firearms and defendant’s admission to his knowledge of at least one weapon prior to its discovery. Further, the jury could have believed that defendant’s intention to possess the weapons was related to the narcotics and amount of cash found in the bedroom.

Defendant argues his confession alone cannot support this conviction and makes arguments regarding the law of corpus delicti. “In the trial of every criminal case the State, to warrant a legal conviction of an accused, must prove the corpus delicti, or the fact that a crime has been committed. Without such proof no conviction will be permitted to stand.” State v. Brown, 236 La. 562, 108 So.2d 233, 236 (1959). Suspicion, rumor, gossip, or mere hearsay evidence is not sufficient to |9establish the proof of corpus delicti. Id. An accused may not be convicted of a crime based solely on his own uncorroborated confession without some independent proof that a crime has been committed. The purpose behind this corroboration rule is to test the reliability of a defendant’s confession. State v. Connolly, 96-1680 (La.7/1/97); 700 So.2d 810, 820.

The corpus delicti rule does not require that independent evidence corroborate every element of the crime admitted in the accused’s statement, where its general reliability has been corroborated. Therefore, the corroborating evidence need only tend to show the major or essential harm involved in the offense charged, and not all of the elements technically distinguished. State v. Schnyder, 06-29 (La.App. 5 Cir. 6/28/06); 937 So.2d 396, 401. The issue is whether there is any evidence at all, independent of the confession, which establishes the fact that a crime was committed, not whether there is sufficient evidence to convict the defendant. Id.

In the present case, the State presented evidence, independent of defendant’s statements regarding the firearms, establishing the fact that a crime was committed. A search warrant was executed in a residence, which was linked to defendant through surveillance. Further, the bedroom was linked to defendant by finding defendant himself, as well as some of his belongings in the bedroom, such as his identification and mail addressed to him at that address. Defendant also admitted the clothes in the closet of this bedroom were his. The firearms were actually found in the bedroom, which was established as defendant’s bedroom, and were found in a location within defendant’s dominion and control and in which defendant, who was identified through evidence as a convicted felon, would have had knowledge since it was in between the mattress and the box spring where he apparently slept. Thus, even without defendant’s statement that the firearms |10belonged to him, the State presented evidence that defendant was in possession of firearms and was a convicted felon. We find, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that defendant, beyond a reasonable doubt, was guilty of possession of a firearm by a convicted felon.

Next, defendant challenges his convictions for possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A), and possession with intent to distribute heroin, in violation of LSA-R.S. 40:966(A). To prove these offenses, the State was required to show defendant knowingly and intentionally possessed the drug, and that he did so with the specific intent to distribute it. See State v. Jones, 11-8 (La.App. 5 Cir. 11/15/11); 78 So.3d 274, 279, writ denied, 11-2781 (La.4/18/12); 85 So.3d 1246; State v. Collins, 09-283 (La.App. 5 Cir. 12/8/09); 30 So.3d 72, 77, writ denied, 10-0034 (La.9/3/10); 44 So.3d 696.

Possession of a controlled dangerous substance may be established by actual physical possession or by constructive possession. State v. Major, 03-3522 (La.12/1/04); 888 So.2d 798, 802. A person not in physical possession of a drug may have constructive possession when it is established that the drugs are under that person’s dominion or control. State v. Washington, 11-716 (La.App. 5 Cir. 3/13/12); 90 So.3d 1157.

The mere presence in an area, however, where drugs are found or mere association with the person found to be in possession of the drugs is insufficient to constitute constructive possession. The question of possession hinges on the particular facts of each case. Factors to be considered in determining whether a defendant exercised sufficient dominion and control to constitute constructive possession include the following: (1) the defendant’s knowledge that illegal drugs were in the area; (2) the defendant’s relationship with the person found to be in |n actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. Id.

La. R.S. 14:10(1) defines specific criminal intent as “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.” The intent to distribute may be established by proving circumstances surrounding the defendant’s possession, which give rise to reasonable inferences of intent to distribute. Jones, 78 So.3d at 279. Factors that may give rise to a reasonable inference that a defendant had the specific intent to distribute include the following: 1) previous attempts to distribute; 2) whether the drug was in a form consistent with distribution to others; 3) the amount of the drug; 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only; and 5) paraphernalia evidencing an intent to distribute. Id. This Court has held that by describing the factors as useful, the Louisiana Supreme Court did not require that the evidence fall squarely within those listed factors to be sufficient for the jury to find the requisite intent to distribute. Jones, 78 So.3d at 279-80.

Drug paraphernalia such as a scale indicates that the defendant possessed with intent to distribute. State v. Trahan, 425 So.2d 1222, 1225 (La.1983). Further, possession of large sums of cash and possession of weapons may also be considered circumstantial evidence of intent to distribute. See State ex rel B.L., 02-923 (La.App. 5 Cir. 1/28/03); 839 So.2d 246, 248. In the absence of these circum stances from which an intent to distribute may be inferred, the mere possession of drugs does not evidence intent to distribute, unless the quantity is so large that no other inference is possible. State v. Henry, 08-658 (La.App. 5 Cir. |1⅞10/27/09); 27 So.3d 935, 943, writ denied, 09-2485 (La.4/23/10); 34 So.3d 269. Further, the Louisiana Supreme Court found in State v. Hearold, 603 So.2d 731, 736 (La.1992), that the combination of prior drug distribution and the amount of drugs found in the bag were sufficient to convict the defendant of possession with intent to distribute.

With respect to his conviction for possession with intent to distribute cocaine, defendant argues that the State failed to produce sufficient evidence to link him to the cocaine found on the scene. Although defendant suggests that the cocaine in the bedroom was not linked to him, the State presented evidence that the bedroom where the cocaine was discovered belonged to defendant, even though defendant argued he did not live at this address. Further, the cocaine was found in a jacket pocket in a closet full of clothes that defendant admitted belonged to him. Also, cocaine was found in the pocket of a pair of jeans that also contained defendant’s wallet and state identification card. Further, defendant admitted in his statement that the cocaine, which was approximately 8.3 grams, belonged to him.

The State presented evidence of previous attempts to distribute. In fact, the State presented evidence regarding defendant’s prior convictions of two counts of possession with intent to distribute cocaine in case number 01-2327. Further, the State presented evidence through expert testimony that the cocaine found in the bedroom was consistent with distribution and inconsistent with personal use, after considering the quantity, value, and packaging of the cocaine. The expert also testified regarding the paraphernalia, which evidences an intent to distribute.

Lieutenant Jewell explained that nine grams of powder cocaine would cost about $350.00 or $400.00 and would be much more than the amount generally obtained by an addict for personal consumption. He also testified that, when the police come across a user, the user generally possesses devices, such as needles, 113spoons, metal objects, bottle caps, straws, a rolled up piece of paper, or a dollar bill, to ingest the drugs they obtain. Here, the police did not recover such devices from defendant’s bedroom.

Lieutenant Jewell explained that, if a person was selling cocaine, the police would expect to see razor blades, scales, measuring devices, and packaging materials, such as plastic baggies. He also explained that the aluminum foil and sandwich bags would be found in a bedroom or bathroom, which is not normally where kitchen supplies are stored.

With regard to this case, Lieutenant Jewell testified that, in his opinion, the fact that two individual packages of drugs in two different pants’ pockets “is a possibility of distribution.” Further, large amounts of currency in small bills, multiple cell phones, and weapons used to protect the “cache” of drugs and money are indicative of intent to distribute.

Lieutenant Jewell opined that a “very wealthy person” might have the resources to obtain eight grams of cocaine for personal use but examples of that are “few and very far in between.” He also explained that typically people who possess drugs solely for personal use do not possess weapons because they usually do not have the money to buy or maintain the weapon or would sell the weapon for the money to buy drugs.

In the present case, the State presented evidence that defendant had been convicted of possession with intent to distribute cocaine in 2002. Further, in the same bedroom where more than eight grams of cocaine was discovered, the police also seized a large amount of currency; firearms; multiple cell phones; sandwich bags; and a scale with white powder residue.

| i/The jury, by its verdict of guilty, obviously accepted Lieutenant Jewell’s testimony that the evidence surrounding the cocaine was consistent with distribution and rejected the possibility that the cocaine was for personal use. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08); 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id.

It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. As such, we find, after viewing the evidence presented at trial in the light most favorable to the prosecution, a rational trier of fact could have concluded, beyond a reasonable doubt, that defendant was guilty of possession with intent to distribute cocaine.

Finally, with respect to his conviction for possession with intent to distribute heroin, defendant contends that the State failed to prove the requisite intent and possession. Defendant argues that, without his statement, all that is left is his mere presence in the area where the drugs were found, which is insufficient.

Here, the State presented evidence that heroin was found in a jacket in the closet of defendant’s bedroom. Defendant admitted that the clothes in this closet belonged to him. Further, after the heroin was discovered, defendant admitted that the heroin belonged to him. Defendant had access to the area where the drugs were located in his bedroom and was in the bedroom when the officers arrived at the residence for execution of the search warrant.

Further, the circumstances surrounding defendant’s possession of the heroin give rise to reasonable inferences that defendant had the specific intent to distribute |15the heroin. The State presented evidence through expert testimony that the heroin found in the bedroom was consistent with distribution and inconsistent with personal use, after considering the quantity, value, and packaging. The expert also testified regarding the paraphernalia that evidences an intent to distribute.

Lieutenant Jewell testified that he would expect to see money and sometimes multiple cell phones as well as firearms or weapons to protect the drugs and money. Lieutenant Jewell testified that with heroin, eight grams would be very expensive. He explained that this drug was more addictive, more volatile, and more expensive. He believed that eight grams of heroin would cost between $800.00 and $1250.00. He testified that with personal use of heroin, he would look for needles and cooking devices. He explained that, for distribution of heroin, they look for paraphernalia such as plastic baggies and a small, square piece of foil, which is often used for a $20.00 or $25.00 “foil.” Much of the currency found in defendant’s bedroom was $20.00 bills.

When asked about eight grams of heroin, Lieutenant Jewell said he definitely would not consider that amount to be for personal use. He explained that it was expensive and that it took a toll on a body. Although Detective Anclede testified that none of the items such as.the scale, razor blade, aluminum foil, or sandwich bags were illegal by themselves, he also testified that usually such items are kept in the kitchen.

The jury, by its verdict of guilty, obviously accepted Lieutenant Jewell’s testimony that the evidence surrounding the heroin was consistent with distribution. Further, the jury was instructed as to the law and obviously found that there was more evidence than defendant’s mere association with the bedroom in which the heroin was found.

| j (¡Defendant again makes the argument that his statement alone cannot support his conviction. However, there was independent evidence of the crime without defendant’s admission that the narcotics belonged to him. The narcotics were found in a bedroom established to be his. Defendant was found to be in possession of the narcotics, even without his admission that it belonged to him. Also, defendant’s statement did not admit his intent to distribute.

As such, we find, after viewing the evidence presented at trial in the light most favorable to the prosecution, that a rational trier of fact could have concluded, beyond a reasonable doubt, that defendant was guilty of possession of a firearm by a convicted felon, possession with intent to distribute cocaine, and possession with intent to distribute heroin. Accordingly, defendant’s convictions are affirmed.

Errors patent

As is our practice pursuant to La. C.Cr.P. art. 920, we have reviewed the record for errors patent. We find none that require correction.

Conclusion

For the foregoing reasons, defendant’s convictions are affirmed.

AFFIRMED

      . The bill of information reflects that defendant had been previously convicted of possession of cocaine in case number 02-6613 in Division "B” of the 24th Judicial District Court.

      . When sentencing defendant, the trial judge stated defendant’s sentences were to be served in the custody of the "Department of Corrections.” Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06); 947 So.2d 105, 109 n. 3, writ denied, 07-0152 (La.9/28/07); 964 So.2d 351.

      . The identification with defendant’s name found in the wallet reflected defendant’s address as 1359 South Dilton Street.

      . Detective Anclede testified that aluminum foil was consistent with narcotics trafficking, especially heroin.

      . Folse explained that gross weight includes the substance and packaging.

      . In Johnson, the jury was faced with conflicting testimony as to whether this room belonged to the defendant and as to whether the defendant even lived at this residence.

      . Lieutenant Jewell did explain that a razor blade could be used for personal consumption if it was used to cut it down into lines to snort it or to break it down to smaller amounts to ingest.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dennis PIERCE.
    No. 12-KA-261.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

|gThe defendant/appellant, Dennis Pierce (“Pierce”), has appealed his conviction and sentence for five counts of armed robbery while armed with a firearm. We affirm.

On October 28, 2010, Pierce was charged in a bill of information by the Jefferson Parish District Attorney with five counts of armed robbery while armed with a firearm, in violation of La. R.S. 14:64 and 14:64.3. Pierce pled not guilty to all counts at his arraignment. Pursuant to his Motion to Appoint Sanity Commission to Determine Defendant’s Competency to Stand Trial, a hearing was held on February 23, 2011, at which time Pierce stipulated to the substance and contents of the examiner’s report, and the trial court found him competent to stand trial. Subsequently, Pierce withdrew his not guilty plea and pled guilty as charged. After waiving sentencing delays, he was sentenced on all five counts to fifteen years of imprisonment at hard labor, to be served concurrently with one another. Additionally, pursuant to La. R.S. 14:64.3, the trial court further sentenced Pierce |ato five years of imprisonment at hard labor on each of the five counts, to be served concurrently with one another, but consecutively to the original fifteen-year concurrent sentences, for a total of twenty years of imprisonment. Pierce was given credit for time served.

On August 30, 2011, Pierce filed an application for post-conviction relief, alleging insufficient evidence, and ineffective assistance of counsel, which application was denied by the trial court. On October 19, 2011, he filed a second application for post-conviction relief and out-of-time appeal, alleging his guilty plea was constitutionally infirm, and an ineffective assistance of counsel claim. On January 3, 2012, the trial court granted Pierce’s motion for an out-of-time appeal. The instant appeal follows.

Since Pierce pled guilty, the facts surrounding the offenses were not fully developed at trial; however, during the guilty plea colloquy, the State provided a factual basis for his pleas. The State alleged that it would prove beyond a reasonable doubt that, on September 1, 2010, Pierce committed five armed robberies with a firearm, namely a revolver, in violation of La. R.S. 14:64 and 14:64.3. The victims in the armed robberies were identified as Hector Zuniga, Adrian Rodriguez, Theodore Flores, Francisco Vasquez, and Agustín Izaguirre.

Appellate counsel has filed an Anders brief and a motion to withdraw as attorney of record. She further asserts that she has notified Pierce of the filing of her motion and advised him of his right to file a pro se brief in this appeal.

Appellate counsel’s Anders brief was filed in conformity with the procedures approved by the United States Supreme Court in that case, asserting that appellate counsel has reviewed the record and that it contains no non-frivolous |4issues that may be raised on appeal. In Anders, the United States Supreme Court stated that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” The An-ders requirements were adopted by this Court and later expanded by the Louisiana Supreme Court. Under the applicable cases, appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but his brief must contain “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” According to Jyles, an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” When conducting a review for compliance with An-ders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence.

If the Anders brief simply states that there are no non-frivolous issues, without some discussion, and only requests a review for errors patent, it is |r,ordinarily disallowed. After independent review, if the appellate court finds an arguable legal point on the merits, it may either deny appellate counsel’s motion to withdraw and order him to file a brief arguing that point, or it may grant the motion to withdraw and appoint substitute counsel.

This Court sent Pierce a letter by certified mail informing him that an Anders brief had been filed and that he had until May 12, 2012 to file a pro se supplemental brief. On April 17, 2012, Pierce filed a Motion to File a Supplemental Pro-Se Brief. We granted Pierce’s pro se motion and extended his deadline to file a pro se supplemental brief to May 18, 2012. As of the date of this opinion, Pierce has not filed his brief.

Pierce’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She contends that Pierce was fully informed of the legal consequences of changing his plea by both his trial counsel as well as the trial court. She asserts that the plea colloquy reveals that the trial court explained each of the rights necessary to ensure a knowing and intelligent waiver of rights, including his right to a trial by jury, to remain silent, and to confront witnesses. She contends that Pierce was advised of the statutory range of the penalty for his offenses and as to the sentence that would be imposed if his plea was accepted. She further notes that Pierce was sentenced in accordance with the plea agreement, noting that he did not object or move for reconsideration. Counsel asserts that Pierce is restricted by law from appealing his sentence, citing La. C.Cr.P. art. 881.2. Nevertheless, counsel requests that any errors patent be listed as assignments of error for purposes of this appeal. She further requests that this Court grant her motion to withdraw as counsel of record.

IfiAn independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged Pierce and, as required, plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies Pierce and the crime charged.

As reflected by the minute entries and commitment, Pierce appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. Further, he pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief.

Pierce filed several pre-trial motions, including motions to suppress, which do not appear to have been ruled upon prior to when he pled guilty. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. There were no rulings to preserve for appeal under the holding in State v. Crosby,

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is |7not kept. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly.

The record shows that Pierce was aware he was pleading guilty to five counts of armed robbery with a firearm. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, both in the colloquy with the trial judge and by means of the waiver of rights form. Pierce indicated that he understood that he was waiving these rights. The trial judge indicated that he was accepting Pierce’s plea as knowingly, intelligently, freely, and voluntarily made.

Pierce stated that he had not been forced, coerced, or threatened to enter his guilty plea, and he was also informed that, by pleading guilty to this felony, his guilty plea could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future. Pierce further admitted that he did, in fact, commit the crimes charged.

Pierce was also advised during the colloquy, and by means of the waiver of rights form, that he faced a maximum possible penalty of ninety-nine years plus five years for the firearm enhancement, without the benefit of probation, parole or suspension of sentence. Further, by means of the form and during the colloquy, Pierce was informed of what his sentence would be if his guilty plea was accepted by the court. The waiver of rights form, signed and initialed by Pierce, as well as by his counsel and the judge, also shows that he understood the possible consequences of pleading guilty and wished to plead guilty.

Pierce’s sentence presents no issues for appeal. It falls within the sentencing range prescribed by statute and, further, was imposed pursuant to a plea agreement. La.C.Cr.P. art. 881.2(A)(2) pre-eludes a defendant from seeking review of his | ^sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

For the above reasons, we affirm Pierce’s conviction and sentence and grant appellate counsel’s motion to withdraw as attorney of record. We have reviewed the record for errors patent and find none that require correction.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . See, State v. Bradford, 95-929, p. 3 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . State v. Jyles, 96-2669, p. 3 (La. 12/12/97), 704 So.2d 241, 242 (per curiam).

      . Id.

      . State v. Bradford, supra.

        . Id.

      . State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

      . See, State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

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

      . State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

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

      . State v. McCoil, supra.

      . State v. Dixon, 449 So.2d 463, 464 (La.1984).

      . State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. David C. GUIDRY.
    No. 12-KA-296.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Vincent J. Paciera, Jr., Jody Fortunato, 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 FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

^Defendant, David C. Guidry, appeals his conviction and sentence for carrying a concealed weapon, in violation of LSA-R.S. 14:95.1. For the reasons that follow, we find no merit to the arguments presented in defendant’s appeal and accordingly affirm his conviction and sentence.

STATEMENT OF THE CASE

The Jefferson Parish District Attorney filed a bill of information charging defendant with a violation of LSA-R.S. 14:95.1, “in that he concealed on his person a bowie knife and/or axe, having been previously convicted of the crime of Attempted Carjacking, ...” On January 12, 2012, the matter proceeded to trial before a twelve-person jury which found defendant guilty as charged. The trial court, on January 19, 2012, sentenced defendant to twelve years imprisonment at |ahard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

In the evening hours of September 24, 2011, the Kenner Police Department received three 9-1-1 calls reporting incidents involving an individual, subsequently identified as defendant, who was wearing a camouflage shirt. In one call, a woman at Brothers Food Mart on Veterans Boulevard reported that an older man, dressed in an orange and green camouflage shirt, shorts, and white socks, was yelling, calling people names, and threatening to “cut everyone up because no one would give him a ride.” A second individual at Brothers Food Mart also called the Kenner Police Department and advised that a white hispanic man, in a camouflage shirt, was headed on foot towards Williams Boulevard “causing problems.” Lastly, Reginald Joseph called the Kenner Police Department and reported that a man, wearing a camouflage shirt and located at Veterans Boulevard and Bain-bridge, had brandished a bowie knife with a twelve-inch blade that he had in his pants.

Mr. Joseph testified at trial regarding the incident that prompted his call to the police. According to Mr. Joseph, on the evening of September 24, 2011, his vehicle stalled in the area of Veterans Boulevard and Virginia Street, right off of Bain-bridge. While Mr. Joseph was trying to restart his vehicle, defendant approached his car, opened the door, and entered the vehicle. Mr. Joseph shouted at defendant to get out of his car, prompting defendant to slam the door, spit on his window, and walk away. Mr. Joseph restarted his car, approached defendant as he walked away, and shouted, “[h]ey, that wasn’t cool what you did.” At that time, Mr. Joseph testified that defendant looked at him, lifted up his shirt, pulled out a knife, and pointed it in his direction. During his testimony, Mr. Joseph stated that|4he did not see any weapons on defendant prior to him lifting his shirt. Further, he recalled that defendant, at the time of the incident, was wearing an orange camouflage shirt and shorts that were “extremely long” and “past the knee.”

On the evening of September 24, 2011, Officer Brent Donovan, of the Kenner Police Department, responded to the call about a man brandishing a knife at a motorist. Upon approaching the scene, Officer Donovan observed a pedestrian, walking down Veterans Boulevard, who matched the description of the perpetrator. Simultaneously, a motorist flagged Officer Donovan down, pointed towards the pedestrian, and identified him as the perpetrator. Officer Donovan approached defendant, and due to the nature of the call, immediately handcuffed him and asked him whether he had any weapons on his person. Defendant told Officer Donovan that he did have a weapon and motioned towards his waistband. Upon lifting defendant’s shirt, Officer Donovan observed the “top blade of an axe ... resting on top of his waistband of his pants ... running down his left leg.” Officer Donovan removed the axe from defendant’s pants and then asked if he had any other weapons on him. Defendant replied in the affirmative and indicated it was on his hip. The officer lifted defendant’s shirt and observed “a big buck knife” in a sheath on his hip. According to the officer, the weapons were covered by defendant’s shirt, and he did not observe the weapons until he lifted the shirt.

During his testimony, Officer Donovan identified the knife and the axe as the weapons he retrieved from defendant. He testified that the length of the knife blade was approximately eight and a half inches and that the axe was a “little over two feet.” Officer Donovan further identified the shirt and pair of pants that defendant was wearing at the time of his arrest. Using his own clothing, Officer |sDonovan then demonstrated for the jury the manner in which the weapons were concealed.

Officer Lance Bullock, of the Kenner Police Department, also responded to the call concerning a man with a knife in the area of Veterans Boulevard and Bain-bridge. By the time he arrived at the scene, Officer Donovan had already detained the suspect and recovered the two weapons. While at the scene, Officer Bullock spoke to Reginald Joseph, who identified defendant as the man who had pulled on the door handle of his car and brandished a knife.

LAW AND ANALYSIS

In his sole assignment of error, defendant argues that the trial court prevented him from presenting a defense when it refused to grant him permission to don the clothing worn by him on the night of the incident and introduced into evidence at trial.

At the conclusion of the witnesses’ testimony, the State rested and moved that the evidence be published to the jury. After the jury had the opportunity to view the evidence, a brief recess was taken. During the recess and prior to closing arguments, a discussion between the parties ensued regarding the arranging of defendant’s clothing for viewing during closing arguments. Specifically, the State submitted that it intended to lay the clothing out on the floor in a manner consistent with the way a human being would have worn the clothing. Defendant objected to the display as an unrealistic representation and proposed that he be permitted to wear the clothing as a demonstrative aid. After considering further argument, the trial court allowed the State to lay the clothing on the floor, but denied defense counsel’s request to have defendant wear the clothing. In explaining its ruling, the trial court stated as follows:

| [Alright. And just — my ruling was based on this. I think that when the clothes were laid out on the floor with the — with the knife and the axe and the clothes, or hidden in the clothes, I mean that’s demonstrative of — it can be clearly as we all recognize, it can be played with by both the State and the defendant. We can raise the shirt up, we can put the shirt down, we can — I mean we can do all kinds of things with it. I’m afraid — but I don’t think it’s prejudicial laying on the floor as a demonstrative aid as it would be if the defendant put them on. I mean clearly, they can be played with the same way. I mean you can pull your pants up right under your breast or you could put them down to you know right above your pubic area. Anybody can do that with their shorts, so my fear is in this case, you know, somebody with — not seeing the defendant actually wear the clothes at the time of the occurrence is — would carry too much weight as a demonstrative aid. Because it could be excused. That’s why I ruled the way I did. I’m not prohibiting you all from using the clothes to put him on the floor however you want demonstratively. So that’s my ruling.

Defendant now challenges this ruling. He maintains that, without the demonstration of how he was clothed at the time of the incident, the jury was unable to properly evaluate the central issue of whether the weapons were concealed. Defendant contends that the trial court’s ruling, which prohibited him from wearing the clothing, prevented him from showing that the axe and the large Bowie knife could not have been concealed under his clothing.

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. However, this right does not require a trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Ramirez, 09-350 (La.App. 5 Cir. 12/29/09), 80 So.3d 833, 843.

Relevant evidence is defined by LSA-C.E. art. 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” All relevant evidence is admissible, except as otherwise provided by law. LSA-C.E. art. 402. Although evidence is relevant, it may be |7excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.

It is well settled that the requirement of exhibiting identifying characteristics is demonstrative, rather than testimonial evidence, and is not violative of the Fifth Amendment right against compulsory self-incrimination. State v. Martin, 519 So.2d 87 (La.1988), appeal after remand, 558 So.2d 654 (La.App. 1st Cir.1990), writ denied, 564 So.2d 318 (La.1990); State v. Gilmer, 604 So.2d 117 (La.App. 2 Cir. 1992). The use of demonstrative evidence is within the sound discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of an abuse of discretion. State v. Hutchinson, 02-0060 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 507; State v. Alexander, 602 So.2d 291, 293 (La.App. 2 Cir.1992), writ denied, 92-2674 (La.4/22/94), 637 So.2d 151.

In State v. Hutchinson, supra, the defendant raised an argument similar to the one raised herein. In that case, the defendant, who was convicted of simple robbery, argued on appeal that he was prevented from presenting a defense at trial because he was precluded from trying on the jeans he was wearing at the time of the crime. This Court found that the trial judge’s refusal to allow the requested demonstration was not in error. This Court reasoned that the evidence that the defendant sought to introduce through the demonstration (that he could not fit in the jeans on the day of trial) was irrelevant. In so ruling, this Court noted that, by the defendant’s own admission, the State proved at trial, through the testimony of various witnesses, that the defendant was wearing those particular jeans on the day he committed the crime. Additionally, although the trial court did not allow the defendant to put on the jeans, he allowed defense counsel during closing argument to hold up the blue jeans and allowed the defendant to stand up at the same time, ^although not next to each other, so the jury could compare the size of the jeans to the defendant’s body. In finding no merit to the defendant’s argument in Hutchinson, su pra, this Court concluded that even though the demonstration was excluded, the defendant was still permitted to argue that the jeans in question could not fit him.

Also, a similar argument was made by the defendant in State v. Alexander, supra. In that case, the appellate court found no abuse of the trial court’s discretion in denying the defendant’s request to wear shorts in iront of the jury that were allegedly identical to those he was wearing at the time of his arrest. In so ruling, the appellate court noted that the defendant no longer had the shorts he was wearing, that such a demonstration was not in good taste, and that the police officers testified at trial that the defendant was exposed. Therefore, the court concluded that a demonstration by the defendant, who was convicted of obscenity, was not necessary to enable the fact-finder to determine whether he had exposed himself.

Likewise, in the present case, we find no error in the trial court’s ruling which refused defendant’s request to put on the clothing that was worn at the time of the offense. At trial, it was uncontested that defendant wore the camouflage shirt and the shorts introduced at trial on the night of the incident. Reginald Joseph testified that defendant was wearing an orange camouflage shirt and shorts that were “extremely long” and “past the knee.” In addition, Officer Donovan testified that the perpetrator was described over the radio as wearing a camouflage shirt. During his trial testimony, the officer identified the shirt and pants that defendant was wearing at the time of his arrest. These items were thereafter introduced into evidence without any objection by defense counsel.

|9Moreover, although the trial judge did not allow defendant to put on the clothing, he did allow the clothing to be laid out on the floor for the jury to view. The trial court permitted defendant to arrange the clothing in any manner he saw fit. Defense counsel was not precluded from laying the shorts out on the floor, alongside the knife and the axe, so the jury could compare the size of the shorts and the weapons. Not only was defense counsel allowed to manipulate the clothing, he was also afforded the opportunity to cross-examine the witnesses about the clothing worn by defendant, the manner in which the clothing was worn, and the lighting conditions on the night of the incident. During cross-examination, defense counsel also questioned Officer Donovan about the measurements of the weapons.

Our review of the record reveals that the trial court clearly afforded defendant his right to present a defense through questioning of the witnesses, through argument, and through manipulation of the clothing. Even though the demonstration was excluded, defendant was still permitted to argue that the weapons could not have been concealed under the clothing that he was wearing at the time of the incident. Accordingly, we find no error in the trial court’s ruling which denied defendant’s request to don the clothing.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent pursuant to LSA-C.Cr.P. art. 920. Our review reveals that the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars as required by LSA-R.S. 14:95.1(B). This Court has the authority to correct an illegal sentence at any time. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory.

In State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842, this Court noted defendant’s indigent status and declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine. In the present case, due to defendant’s indigent status, we refrain from exercising our authority to correct the illegally lenient sentence.

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

AFFIRMED

      . At trial, defendant stipulated to his predicate felony conviction.

      . The knife and the axe were introduced into evidence. The shirt and pants worn by defendant on the night of the incident were also introduced into evidence.

      . It is noted that defendant is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases.


text:
    STATE of Louisiana v. Travis WILLIAMS.
    No. 12-KA-299.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

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

|2In this case, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the reasons which follow, we affirm defendant’s convictions and sentences.

Facts and Procedural History

In this case, defendant pled guilty without proceeding to trial. Thus, the facts were gleaned from the recitation of facts presented by the State during the guilty plea colloquy:

If these matters proceed to trial the State of Louisiana is prepared to show beyond a reasonable doubt, in case number 07-4814 that Travis Williams did on or about the 26th day of April in the year of 2007, within the jurisdiction of Jefferson Parish, violated [sic] 14:95.1 in that he did have in his possession a firearm having been previously convicted of the crime of Distribution of Cocaine in violation of 40:967A under case number 98-1091, Division A of the 24th Judicial District Court, Parish of Jefferson.

In Count 2, that Travis Williams did on or about the 26th day of April, 2007, violated [sic] Revised Statute 40:967 F in that he did knowingly and intentionally possess a controlled dangerous substance, to wit: cocaine ... Possession of Cocaine less than 200 grams, ... 28 to 199.

|3On August 14, 2007, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Travis Williams, in Count One, with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1, and, in Count Two, with possession of between 200 to 399 grams of cocaine, in violation of La. R.S. 40:967(F). On June 23, 2008, defendant was arraigned and pled not guilty to these charges.

On December 2, 2009, defendant withdrew his pleas of not guilty and pled guilty to both counts. That day, the trial judge sentenced defendant for possession of a firearm by a convicted felon to 12 years imprisonment with the Department of Corrections, and for possession of between 28 and 199 grams of cocaine to 10 years imprisonment with the Department of Corrections, to run concurrently with each other and with the sentences imposed that day in three cases that are not the subject of this appeal.

Also, on December 2, 2009, the State filed a multiple offender bill of information alleging that defendant was a second felony offender. Defendant stipulated to the allegations of the multiple bill. Thereafter, the trial judge vacated defendant’s underlying sentence for felon in possession of a firearm and imposed an enhanced sentence of 12 years imprisonment with the Department of Corrections, to run concurrently with count two and other sentences imposed in cases that are not the subject of this appeal.

|4On January 10, 2012, defendant filed an application for post conviction relief seeking reinstatement of his right to appeal, which was granted on January 24, 2012. This appeal follows.

Discussion

Under the procedure set forth by our brethren on the Fourth Circuit in State v. Benjamin, which was sanctioned in State v. Mouton, and adopted by this Court in State v, Bradford, appointed appellate counsel has filed a brief pursuant to An-ders v. California, supra, and State v. Jyles asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘a brief referring to anything in the record that might arguably support the appeal’” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.”

|sIn State v. Jyles, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel.

Defendant’s appellate counsel asserts that, after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal. She sets forth a procedural history of the case, but does not provide a statement of the facts, noting that the facts were not revealed in the record. She further provides that she can find no ruling of the trial court that arguably supports the appeal. She explains that there is no ruling of the trial court to be challenged. |6She notes that no motions were heard or transcribed and defendant pled to the charges and to the subsequent multiple bill.

Appellate counsel reports that she considered whether to raise an issue of excessive sentence, but was compelled to conclude that such a claim would be frivolous. She contends that defendant was informed by the plea form that as a second felony offender he faced a sentence up to 30 years and would be sentenced to 12 years. She also notes that defendant was informed as to the underlying sentence in the plea colloquy. She concludes that the 12-year sentence would not be regarded as constitutionally excessive. She requests this Court grant her motion to withdraw as counsel of record.

Appellate counsel has filed a motion to withdraw as attorney of record which states she has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal. She further notes there are no rulings which would arguably support the appeal. She contends that her brief is in compliance with Anders and that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal.

Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until May 24, 2012, to file a pro se supplemental brief. As of the date of this opinion, defendant has not filed a supplemental brief in this matter.

The State responds that counsel has shown a conscientious and thorough review and recitation of the procedural history of the case and has cast an advocate’s eye over the record and determined there were no significant non-frivolous issues upon which to base an appeal. The State agrees that there were no motions heard or transcribed and defendant pled guilty to the charges and the multiple bill. The State adds that defendant was advised of his Boykin rights and 17waived them. The State contends that defendant was made aware of the sentences before his guilty pleas were accepted and was advised of the ranges for the charges and as a second felony offender.

The State concludes that defendant’s sentences were in accordance with the plea agreement and he is proeedurally barred from seeking review of his sentences. The State contends that defendant’s 10-year sentence as to count two and his 12-year sentence as to count one are proper and not subject to further review. The State also concludes that a guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the guilty plea and no jurisdictional defects are present in these proceedings. The State acknowledges that counsel has conformed with and followed the procedures set forth in Anders and Jyles and suggests that she should be granted her request to withdraw. The State requests that this Court affirm defendant’s conviction and sentence.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. First, the bill of information in this case properly charged defendant and plainly and concisely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged.

Next, the minute entries and commitment reflect that defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceedings, his sentencing, and his multiple bill proceedings, including his stipulation and his enhanced sentencing.

Further, defendant pled guilty to both counts in the underlying bill of information and stipulated to the allegations of the multiple offender bill of information. If a defendant pleads guilty, he normally waives all non-jurisdictional 18defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting, on appeal, that the State failed to produce sufficient proof at the multiple offender hearing.

Additionally, several pre-trial motions were filed in this case. Although the record does not reflect rulings on all of these pre-trial motions, when a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. Further, no rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

Next, we find that the record does not reveal any irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.

During the guilty plea proceeding, defendant was informed in writing in the waiver of rights form and verbally by the trial judge that he was charged with and pleading guilty to one count of felon in possession of a firearm and one count of possession of between 28 and 199 grams of cocaine. Further, defendant was informed of his Boykin rights — his right to a judge or jury trial, to confrontation, and to remain silent — in writing on the waiver of rights form and verbally by the |9trial judge. Defendant indicated in writing and verbally that he understood that he was waiving these rights.

During this proceeding, defendant stated that he had not been forced, coerced, or threatened to enter his guilty pleas. Defendant indicated that he understood the possible legal consequences of pleading guilty, and wished to plead guilty at that time. He also indicated that he understood that, by pleading guilty, a future felony conviction could result in the sentence being enhanced. Defendant was told during the colloquy and by means of the waiver of rights form of the maximum sentence that he faced for each count. He was also informed as to the sentences that would be imposed if his guilty pleas were accepted. The judge accepted the guilty pleas as knowingly, intelligently, freely, and voluntarily made.

La.C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. Although defendant was told of the maximum sentences he faced and the sentences that would be imposed for the two offenses he was charged -with, defendant was not advised as to the minimum penalties he faced for the two offenses as required by La.C.Cr.P. art. 556.1. Defendant was also not advised that his underlying or enhanced sentences are to be served without benefit of probation, parole, or suspension of sentence. See La. R.S. 14:95.1; La. R.S. 40:967(G); La. R.S. 15:529.1(G).

However, a violation of La.C.Cr.P. art. 556.1, which does not rise to the level of a Boykin violation, is subject to “harmless error” analysis. State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09); 15 So.3d 1076, 1079, writ denied, 09-1385 (La.2/12/10); 27 So.3d 842. We do not find issues sufficient to support an appeal. See State v. Otkins, 11-563 (La.App. 5 Cir. 12/13/11); 81 So.3d 1501 in(failure to inform the defendant of the minimum penalties he faced for the charged offenses was harmless error and, thus, there were no non-frivolous issues to be raised on appeal).

Further, defendant’s underlying sentences do not present issues for appeal. Defendant’s underlying sentences were imposed pursuant to a plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

Further, defendant’s sentences fall within the sentencing ranges prescribed by the statutes. Defendant pled guilty to possession of a firearm by a convicted felon. La. R.S. 14:95.1 provides for a sentence at hard labor for 10 to 15 years imprisonment without benefit of parole, probation, or suspension of sentence. Defendant received a sentence of 12 years with the Department of Corrections.

Defendant also pled guilty to possession of between 28 to 199 grams of cocaine in violation of La. R.S. 40:967(F). La. 40:967(F)(l)(a) provides for a sentence of imprisonment at hard labor for 5 to 30 years and a mandatory fine of not less than $50,000.00 and not more than $150,000.00. Defendant was sentenced to 10 years with the Department of Corrections.

Regarding the multiple offender proceedings, defendant executed a waiver of rights form, which reflects that defendant admitted that he was a second felony offender with a prior felony conviction. The form reflects that a copy of the multiple bill was given to him and reviewed by him and his attorney. By means of this form, defendant indicated that he understood that he was giving up his right to have a hearing, his right to remain silent throughout the hearing, and that his |nsilence would not be held against him. Defendant agreed that he was satisfied with the way his attorney and the court explained the rights that he was waiving and the consequences of his guilty plea. He indicated that he was not forced, coerced, or threatened to stipulate. He further indicated that he understood the possible legal consequences of pleading guilty and wished to plead guilty at the time. Defendant initialed his understanding of this waiver.

Further, the waiver of rights form reflects that defendant faced a sentencing range of 7.5 to 30 years imprisonment as a multiple offender, and that he would receive 12 years imprisonment, to run concurrently with Count Two and sentences imposed in other unrelated cases. The form was signed by defendant, his attorney, and the judge.

After accepting defendant’s stipulation to the multiple bill, the trial judge imposed a sentence in conformity with the “plea agreement.” This Court has consistently recognized that La.C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed.

Defendant’s enhanced sentence was within the sentencing range as well. The term of imprisonment for a second felony offender “shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” See La. R.S. 15:529.1. In this case, a conviction under La. R.S. 14:95.1 carried a term of imprisonment of 10 to 15 years. See La. R.S. 14:95.1(B). Thus, as a second felony offender, defendant was subject to a sentencing range of 7.5 to 80 years imprisonment. See La. R.S. 14:95.1(B); La. R.S. 15:529.1. Because defendant’s enhanced sentence is within the sentencing range and was imposed pursuant to the stipulation, the sentence does not present a non-frivolous issue to raise on appeal.

[ 12Further, by stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects were waived. As previously noted, defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing when he waived the hearing.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s conviction, multiple bill stipulation, and sentences. Further, appellate counsel’s motion to withdraw as attorney of record is granted.

Errors patent

In his Anders brief, defendant requests an error patent review, which this Court routinely provides in accordance with La. C.Cr.P. art. 920. We note the following errors, including one that requires correction.

First, we note that defendant received an illegally lenient sentence on Count Two under La. R.S. 40:967(F)(l)(a), which requires a fine between $50,000 and $150,000. Although this Court has the authority to correct an illegally lenient sentence under La.C.Cr.P. art. 882, we decline to remand the matter for imposition of the mandatory fine due to defendant’s indigent status.

Next, we note that defendant’s sentence on Count Two and defendant’s enhanced sentence were imposed without restriction of benefits. With respect to Count Two, La. R.S. 40:967(F)(l)(a) and La. R.S. 40:967(G) mandate a minimum sentence of five years. As such, the first five years of the sentence should have been imposed without benefit of probation or parole and defendant’s entire sentence should have been imposed without suspension of sentence. With respect 11Rto defendant’s enhanced sentence, La. R.S.15:529.1(G) and La. R.S. 14:95.1(B) required that the sentence be imposed without benefits. Under State v. Williams, 00-1725 (La.11/28/01); 800 So.2d 790, 799 and La. R.S. 15:801.1, however, the restrictions are self-activating and no corrective action is required regarding the restrictions.

Finally, the hard labor commitment reflects that defendant “entered a plea of GUILTY” and was sentenced under La. R.S. 15:529.1. The commitment, which is inconsistent with the transcript of the proceedings, does not reflect defendant’s status as a second felony offender. This is an error patent that requires correction. State v. Hart, 10-905 (La.App. 5 Cir. 5/10/11); 66 So.3d 44, 51, writ denied, 11-1178 (La.11/18/11); 75 So.3d 448. As such, we remand this matter with instructions to the trial court to correct the commitment to reflect that defendant was sentenced as a second felony offender and direct the clerk of court to transmit the original of the corrected hard labor commitment to the officer in charge of the institution to which the defendant has been sentenced, and to the Department of Correction’s Legal Department. 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).

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Count two of the bill of information was subsequently amended by the State to reflect a reduction in the charge because the actual weight of the cocaine was 196 grams.

      . Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06); 947 So.2d 105, 109 n. 3, writ denied, 07-0152 (La.9/28/07); 964 So.2d 351.

      . In the multiple offender bill of information, the State sought to enhance the penalty imposed for defendant’s underlying La. R.S. 14:95.1 conviction. The State used, as a predicate, defendant’s guilty plea to carnal knowledge of a juvenile, in violation of La. R.S. 14:80, in case number 97-4807, on February 24, 2000. "[A] sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information.” State v. Baker, 06-2175 (La.10/16/07); 970 So.2d 948, 958, cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008). Here, defendant’s conviction for violating La. R.S. 14:95.1 was based on his previous felony conviction for distribution of cocaine in violation of La. R.S. 40:967(A). Thus, the State was not procedurally barred from enhancing defendant’s underlying La. R.S. 14:95.1 conviction with defendant’s separate predicate conviction for carnal knowledge of a juvenile, in violation of La. R.S. 14:80.

      . Defendant filed an application for post conviction relief on May 27, 2011, which was denied on June 21, 2011. On December 22, 2011, this Court granted relief for the limited purpose of vacating the denial of defendant's application for post-conviction relief and granting him time to move for reinstatement of his appeal rights through another application for post-conviction relief.

      . 573 So.2d 528, 530 (La.App. 4 Cir. 1990).

      . 95-0981 (La.4/28/95); 653 So.2d 1176, 1177 (per curiam).

      . 95-929 (La.App. 5 Cir. 6/25/96); 676 So.2d 1108, 1110.

      . 96-2669 (La.12/12/97); 704 So.2d 241, 242 (per curiam).

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . 96-2669 at 2, 704 So.2d at 241.

      . Id.

      . Bradford, supra at 1110.

      . Id.

      . See generally, La.C.Cr.P. art. 464-66.

      . State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06); 926 So.2d 662, 664.

      . State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97); 704 So.2d 300, 304.

      . See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05); 896 So.2d 1101, 1102.

      . State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06); 924 So.2d 1120, 1124.

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

      . McCoil, supra.

      . See State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05); 916 So.2d 1171, 1173.

      . Defendant did not receive the mandatory fine and his benefits were not restricted pursuant to the statute. See error patent discussion, infra.

      . State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07); 958 So.2d 36, 46.

      . See also State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09); 24 So.3d 235, 241-42; State v. England, 09-746 (La.App. 5 Cir. 3/9/10); 38 So.3d 383, 391.

      . The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02); 821 So.2d 60, 79, writ denied, 02-1540 (La.12/13/02); 831 So.2d 983 (citing State v. Bruins, 407 So.2d 685, 687 (La.1981)).

      . See England, 38 So.3d at 390-91.