author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Francis W. GUIDRY, Jr. v. Richard Allan SAVOIE and River Parish Contractors, Inc. Richard Allan Savoie v. Francis W. Guidry, Jr. and River Parish Contractors, Inc.
    Nos. 13-CA-164, 13-CA-165.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 4, 2013.

      Henry A. King, John A. Cangelosi, New Orleans, LA, for Plaintiff/Appellee, Francis W. Guidry, Jr.
    Jerald P. Block, Thibodaúx, LA, for Defendant/Appellant, Richard Allan Savoie.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

1 pThis is a dispute between the owners of a corporation over their proportionate shares in the company. The parties filed opposing petitions for declaratory judgments to proclaim their respective interests. One party now appeals the district court’s granting of a motion for summary judgment in favor of the other party. We reverse and remand.

FACTS

On November 9, 2010,' Francis W. Gui-dry filed a petition for declaratory judgment against Richard Allan Savoie and River Parish Contractors, Inc. (“RPC”). Guidry alleged that he, Savoie, and Chad Bourgeois formed RPC in order to purchase the assets of another company, Highland Industrial Services, Inc. (“HISI”) and go into business together. Guidry alleged he was the pivotal figure in negotiating the purchase of the assets from HISI and in other ways, including obtaining fínáncing, while RPC got up and running. He alleged that he assumed the position of President of RPC and has held that position continuously since RPC’s formation.

IsGuidry alleged that in consideration of his efforts, he, Savoie, and Bourgeois agreed that Guidry would own a 60 percent interest in RPC and that Savoie and Bourgeois each would own a 20 percent interest in the company. However, no stock certificates were ever issued. Gui-dry alleged that despite the parties’ agreement to those ownership percentages, Sa-voie now claims that he owns 50 percent of RPC, rather than the 20 percent that was originally agreed between the parties. Guidry sought a declaration from the court that the ownership of RPC is as follows: Guidry, 60 percent; Savoie, 20 percent; Bourgeois, 20 percent.

Guidry made RPC a defendant as a party needed for just adjudication, pursuant to La. C.C.P. art. 641, since the ownership of RPC will need to be reflected on the stock register of RPC and shares of stock issued to the shareholders of RPC evidencing their ownership interests. Gui-dry also requested that the court order RPC to issue shares of stock to RPC’s shareholders in the percentages of ownership stated in the petition, and to reflect that ownership in the company’s stock register.

On November 19, 2010, Savoie filed .his own petition for declaratory judgment against Guidry and RPC, in which Savoie sought to be declared owner of 50 percent of the shares of RPC. Savoie asserted that he and Guidry were listed on the Domestic Business Corporation Initial Report as the first directors of RPC, but that stock certificates were never issued. Savoie stated that at the time the company was formed, he believed that he and Guidry were each owners of 50 percent of the stock. Savoie sought a declaration from the court that he is owner of 50 percent of the shares of RPC. He joined RPC as a defendant as an indispensable party.

I/The two lawsuits were consolidated. The parties thereafter proceeded with discovery.

On May 1, 2012, Guidry filed a motion for summary judgment, seeking judgment declaring him to be the owner of 60 percent of the stock in "RPC and Savoie to be the owner of 20 percent of the stock. He attached supporting documents.

Savoie filed an opposition to the motion for summary judgment, also attaching supporting documents (many of them the same documents attached to Guidry’s motion).

At the hearing on the motion for summary judgment, counsel for Guidry asserted that the corroborating evidence presented for Guidry’s claim of 60 percent ownership leaves no disputed material facts, so that summary judgment should be granted in favor of Guidry.

Savoie’s counsel contended the case was not ripe for summary judgment because the intent of the parties and the credibility of the witnesses can never be determined on summary judgment. He asserted there are documents that clearly establish there was confusion about the percentages of ownership for each party. The organizational resolutions drawn up by the company’s lawyer, Anthony RNobile, show varying percentages of ownership, but none of them are signed. The original tax returns were amended, but none of them show the percentages of ownership. They had to re-fíle as a C corporation because they did not make a timely election to be an S corporation. Savoie’s counsel argued that it all depends on proving the intent of the parties.

In rebuttal, Guidry’s counsel cited La. C.C. Art. 1846, which provides that oral evidence is insufficient to prove a contract over $500. He asserted that Savoie has not produced corroborating evidence. Further, he argued, an amendment to a tax return does not wipe out the prior return, and the ownership percentages set out in the original return showed the ownership as 60-20-20.

On August 7, 2012, the court issued a judgment granting Guidry’s motion for summary judgment and declaring that Guidry has a 60 percent ownership interest in the stock of RPC, with Savoie and Bourgeois each having a 20 percent ownership interest. The court dismissed Savoie’s petition for declaratory judgment.

In reasons for judgment incorporated into the judgment, the trial court found,

The Court finds that Savoie has not met his burden on this Motion for Summary Judgment.... In the present matter, the affidavits and evidence submitted by Guidry clearly establish that the only agreement among the stockholders was that ownership of RPC was to be divided as follows: 60%, 20%, 20%, with Guidry being the majority stockholder. Also, Guidry unequivocally testified that he made the decision to form RPC, and that he invited Savoie and Bourgeois to join him. Savoie has never refuted this testimony. In addition, the documentation provided by Guidry, such as the tax records and letter to Bourgeois, serve as corroborating evidence to support his motion. Savoie’s own 2001 federal income tax return, financial statement, and RPC’s 2001 Form 1120 federal income tax support the assertion that the ownership is 60%, 20%, 20%.
Here, the Court finds that there exists an absence of factual support for Sa-voie’s Petition for Declaratory Judgment. At the hearing on this matter, Savoie was not able to produce any evidence to indicate that there was a genuine issue of material fact. The documentation that Savoie did present was either self-serving or irrelevant to the matter at hand. On the other hand, Guidry presented documentation such as tax records, deposition testimony, and a letter to Bourgeois which all showed the ownership of RPC as 60%, 20%, 20%, with Guidry being the majority shareholder. Although Savoie claims that the tax documents were incorrect and that he later filed an amendment to correct the error as to the ownership percentages of RPC, the Court did not find that the evidence presented corroborated Sa-voie’s allegations.
All of Guidry’s allegations are verified by independent witness, such as Gui-dry’s attorney, Anthony Nobile and his accountant, Edgar J. Dillard, Jr. The Court believes Savoie’s assertion that at some point Guidry may have considered increasing Savoie’s and Bourgeois’s stock interests, however, there is no evidence to show that this was ever done. To the contrary, all of the relevant and corroborating evidence submitted in support of Guidry’s Motion for Summary Judgment clearly reflect that Guidry, Savoie, and Bourgeois agreed to a division of stock as follows: 60%, 20%, 20%, with Guidry being the majority shareholder.

The court concluded that Savoie had not met his burden of proof, and that no material issues of fact were genuinely in dispute. Accordingly, the court granted the motion for summary judgment, declaring that Guidry has a 60 percent ownership in the stock of RPC, with Savoie and Bourgeois each having a 20 percent ownership interest. The court dismissed Savoie’s petition for declaratory judgment.

Savoie has appealed. He makes the following assignments of error:

1. The trial court erroneously held that Louisiana Civil Code article 1846 is applicable to a dispute over the ownership of a corporation.
2. The trial court erroneously granted Guidry’s Motion for Summary Judgment (and dismissing Savoie’s | ./Declaratory Judgment suit) by finding that Guidry met his burden of proof that no genuine issue of material fact existed and that Gui-dry was entitled to judgment as a matter of law.

ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Suire v. Lafayette City-Parish Consol. Gov’t, 2004-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. Thus, appellate courts consider whether summary judgment is proper by determining whether a genuiné issue of material fact exists and whether the mover is entitled to a judgment as a matter of law. La. C.C.P. art. 966; Jones v. Estate of Santiago, 2003-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La.06/30/00), 764 So.2d 37, 40.

“Summary judgment usually is not appropriate for claims based on subjective facts 'such as motive, intent, good faith, knowledge, and malice. However, this court has acknowledged ‘summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.’ ” (Citations omitted.) Phipps v. Schupp, 2009-2037, p. 6 (La.7/6/10), 45 So.3d 593, 597.

A “genuine issue” is a triable issue. Jones v. Estate of Santiago, 2003-1424 at 6, 870 So.2d at 1006. “An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.” Id. A “fact is ‘material’ when its | ^existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

I. Applicability of La. C.C. art. 1846

Savoie contends the trial court erroneously held that La. C.C. art. 1846 is applicable to a dispute over the ownership of a corporation. He argues that La. C.C. art. 797 is applicable because the case concerns ownership of a corporation for which no stock certificates were issued. Art. 797 is in the section of the Civil Code dealing with ownership, while Art. 1846 is in the section dealing with obligations.

La. C.C. art. 797 states, “Ownership of the same thing by two or more persons is ownership in indivisión. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.”

La. C.C. art. 1846 provides,

When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.”

We find no merit to the appellant’s argument that Art. 797 should be applied. Stockholders are not owners in indivisión simply because they each own stock in the same company. Rather, each share of stock is a discrete piece of property; undivided ownership would apply only where two or more people owned the same share of stock.

Accordingly, the trial court did not err in applying Art. 1846 to determine the burden of proof.

IflII. Ripeness for Summary Judgment

The remaining issues are whether Gui-dry established that there was no genuine issue of material fact regarding the percentages of ownership in RPC, and whether Guidry was entitled to summary judgment under the provisions of La. C.C.P. art. 966.

A stock certificate is prima facie evidence of corporate ownership, but it must be distinguished from actual ownership, which may be determined from all the facts and circumstances of a case. Int’l Stevedores, Inc. v. Hanlon, 499 So.2d 1183, 1188 (La.App. 5th Cir.1986), writ denied, 501 So.2d 230 (La.1987). An oral agreement for transfer of stock, a movable, is not required to be in writing. Dupuy v. Riley, 557 So.2d 703, 707 (La.App. 4th Cir.1990), writ denied, 563 So.2d 878 (La.1990).

In fulfilling the requirements of La. C.C. art. 1846, parties to an action may serve as their own credible witnesses and they are not required to present proof of every detail of the alleged agreement; general corroboration is sufficient. Dupuy v. Riley, 557 So.2d at 707.

In support of the motion for summary judgment, Guidry attached excerpts from several depositions as well as affidavits. In his deposition he said that he owned 100 percent of the stock when the company was started and that when he asked Savoie to come to work for him, he told Savoie his share would be 20 percent. He admitted he never made a transfer of stock. He had a signed document with Chad Bourgeois, stating that Bourgeois would own 20 percent.

Guidry also attached excerpts from the deposition of Savoie, in which Savoie admitted he .never complained to Guidry about a tax form that listed Savoie’s interest as 20 percent. In that deposition, Sa-voie also said he had several conversations with Guidry to inform him he was not satisfied with 20 percent.

|10Guidry attached an affidavit of Anthony Nobile, the attorney who drew up the incorporation papers for RPC. Attached to the affidavit was' a document drafted by Nobile titled “Organizational Resolutions,” with handwritten notes by Nobile that his affidavit states were his understanding that the RPC stock division was to be 60% to Guidry, 20% to Bourgeois, and 20% to Savoie. The document was stamped “draft” on every page, and was never signed by the parties.

In opposition to the motion for summary judgment, Savoie attached pages from his own and Guidry’s depositions. On one page Guidry admitted there were no documents to support his claim that the ownership division was 60 percent to him, and 20 percent each to Savoie and Bourgeois. Guidry said, “We don’t have any documents. It was a verbal agreement.”

In his deposition, Guidry also stated that a document was drafted, but neither Bourgeois nor Savoie signed it because Savoie wasn’t happy with the ownership. The draft provided for 50/25/25 apportionment. Guidry said he had considered those share divisions at some point, but because of certain actions of Savoie, increasing their shares “was no longer a consideration.”

He also admitted that stock certificates were never issued, and that the company attorney, Anthony Nobile, probably delayed issuing stock certificates because Guidry told him to wait until he had worked out the ownership percentages. In addition, Guidry acknowledged another draft document with handwritten notations by Nobile, which indicated ownership percentages of 50 percent, 25 percent and 25 percent; Guidry denied it represented the ownership interests on the date of incorporation.

Savoie attached a letter from a bank that established a $900,000 line of credit for RPC. That letter lists both Savoie and Guidry as guarantors of the line of credit, “in solido.”

_[iJSavoie attached excerpts from the deposition of Chad Bourgeois. Bourgeois agreed that RPC was formed by Savoie as well as Guidry. Bourgeois said he had something to do with it, too, although his name is not on the paperwork. He stated, “We all talked about it and ... we discussed what we was gonna do.” Counsel asked Bourgeois whether, as general manager and controller of RPC, he knew of any documents that establish the division of ownership. Bourgeois responded that there are “two different documents: one says 20/20/60, one says 50/25/25.... There is a couple of resolutions that have something. They contradicting, but they do have some divisions on them.” He agreed there is contradiction within the documents.

In light of the principle that summary judgment is seldom appropriate on issues involving subjective intent, we find the trial court erred in granting summary judgment to Guidry. The evidence does not establish there are no genuine issues concerning the proportions of the share ownership. Both Savoie and Guidry were in-corporators of the company, and both guaranteed the line of credit in solido. Reasonable persons could disagree as to whether there was a clear understanding on the allotment of the ownership interests.

Accordingly, we find the trial court erred in granting summary judgment. These matters should be decided at a trial, where the credibility of the witnesses may properly be determined and the issues may be resolved by the trier of fact.

DECREE

For the foregoing reasons, the judgment is reversed and the matter is remanded. Costs of this appeal are assessed against the plaintiff-appellee, Francis W. Guidry, Jr.

REVERSED AND REMANDED.

      . Francis W. Guidry, Jr. versus Richard Allan Savoie and River Parish Contractors, Inc., No. 60742, 40th Judicial District Court, Parish of St. John the Baptist.

      . Exhibits offered in evidence state that RPC was incorporated on September 28, 2001, and that it is engaged in mechanical construction, pipe .installation, and capital projects.

      . Richard Allan Savoie versus Francis W. Guidry, Jr. and River Parish Contractors, Inc., No. 60871, 40th Judicial District Court, Parish of St. John the Baptist.

      . In support of his motion, Guidry attached the following documents: Exhibit A, Guidry's affidavit, with attachments; Exhibit B, excerpts of Savoie's deposition, with attachments; Exhibit C, excerpts of Guidry’s deposition; Exhibit D, affidavit of Chad Bourgeois, the third RPC shareholder, with attachments; Exhibit E, affidavit of Edgar Dillard, RPC’s accountant, with attachments; and Exhibit F, affidavit of Anthony Nobile, RPC's attorney, with attachments; Exhibit G, excerpts of Bourgeois’s deposition; Exhibit H, excerpts of Guidry’s deposition; Exhibit I, excerpts of Savoie’s deposition.

      . Savoie’s attachments were as follows: Exhibit 1, agreement between Pipeworks, Inc., Guidry and Savoie, relating to the purchase of assets of Pipeworks' subsidiary, Highland Industrial Services, Inc., by Guidry and Savoie; Exhibit 2, excerpt of Guidry's deposition; Exhibit 3, RPC’s Articles of Incorporation; Exhibit 4, RPC's Initial Report; Exhibit 5, excerpt of Bourgeois’s deposition; Exhibit 6, excerpt of Guidry’s deposition; Exhibit 7, handwritten notations showing apportionment of shares as 50 percent to Guidry, 25 percent to Bourgeois, and 25 percent to Sa-voie; Exhibit 9, Organizational Resolutions of RPC, with handwritten notations listing share apportionments of 60 percent to Guidry, 20 percent to Bourgeois, and 20 percent to Sa-voie; Exhibit 10, excerpt of Guidry's deposition; Exhibit 11, excerpt of Bourgeois’s deposition; Exhibit 12, letter from Union Planters Bank to RPC, listing guarantors of corporation’s line of credit as Guidry and Savoie; Exhibit 13, excerpt of Guidry’s deposition; Exhibit 14, excerpt of Savoie’s deposition; Exhibit 15, excerpt of Savoie’s deposition; Exhibit 16, Savoie’s 2001 amended tax returns; Exhibit 17, RPC's 2001 tax return; Exhibit 18, unsigned draft RPC Buy-Sell Agreement listing respective ownership interests as 50 percent for Guidry, 25 percent for Bourgeois, and 25 percent for Savoie; Exhibit 19, excerpt of Guidry's deposition; Exhibit 20, excerpt of Guidry's deposition.

      . The only document in the record is titled Reasons for Judgment; there is no separate judgment. However, the Reasons for Judg- . ment contain decretal language proper for a judgment. Accordingly, we consider the Reasons for Judgment to be a judgment that incorporates its reasons.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Tori L. JONES.
    No. 13-KA-98.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 4, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Appellate Counsel, Walter G. Amstutz, Joseph E. Roberts, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, Louisiana, for Appellant, Tori L. Jones.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

|?On appeal, defendant challenges the trial court’s denial of his motion to withdraw his guilty plea to carnal knowledge of a juvenile, a violation of La. R.S. 14:80. For the following reasons, we affirm and remand for correction of a patent error.

Procedural history

On November 10, 1998, the Jefferson Parish District Attorney filed a bill of information charging defendant, Tori L. Jones, with carnal knowledge of a juvenile, in violation of La. R.S. 14:80. Defendant was arraigned and pled not guilty on November 19,1998. Defendant filed pre-trial motions, including a motion to suppress statement, which was denied after a hearing on July 21,1999.

On August 16,1999, defendant withdrew his former plea and tendered a plea of guilty to carnal knowledge of a juvenile, which the trial judge accepted. On October 6, 1999, defendant filed a pro se Motion to Withdraw Guilty Plea, which was heard and denied by the trial court on October 19,1999. That same day, the trial court sentenced defendant to four years imprisonment at hard labor, concurrent with sentence imposed in a parole revocation and the sentence imposed |sm case number 99-1283. On October 26, 1999, defendant filed a Motion for Appeal. After substantial delays, defendant’s appeal was granted on November 26, 2012.

Facts

Defendant’s conviction resulted from a guilty plea so the circumstances surrounding the charged offense were gleaned from the record, including testimony presented at defendant’s suppression hearing. Here, the bill of information alleges that, on September 15, 1998, defendant, whose date of birth is December 28, 1976, violated La. R.S. 14:80 and committed carnal knowledge of a juvenile, by having consensual vaginal intercourse with a juvenile female, who was over 12 but under 17 years of age, where there was an age difference of greater than two years between the persons. Further, at the suppression hearing, the State introduced defendant’s statement, in which he acknowledged that, on September 15, 1998, he performed consensual oral sexual intercourse on K.W., a female known to him to be a minor. Defendant also admitted that he engaged in non-consensual vaginal sexual intercourse with K.W. on that same date.

| ¡Law and argument

On appeal, defendant raises two assignments of error: first, the trial court erred by denying the motion to withdraw the guilty pleas; and, second, Mr. Jones was denied the effective assistance of counsel.

In his first assignment of error, defendant argues that the record as a whole fails to show that he made a knowing and intelligent waiver of his constitutional rights when he entered his guilty plea. Specifically, defendant contends that prior to the acceptance of. his guilty plea, the trial court failed to advise him of his constitutional right to remain silent, and failed to conform to the statutory requirement that he be advised of his duty to register as a sex offender.

The State responds that, while the guilty plea colloquy does not address defendant’s privilege against self-incrimination, the waiver of rights form contains a waiver of that privilege, which was signed by defendant, his attorney, and the trial judge. The State maintains that there is a sufficient affirmative showing in the record that defendant was advised of his privilege against self-incrimination, and knowingly, intelligently, and voluntarily waived that right. The State further asserts that the failure to advise defendant of the sex offender registration requirement does not render defendant’s plea involuntary and does not provide defendant with valid grounds to withdraw his guilty plea.

A guilty plea will not be considered valid unless the plea was a free and voluntary choice on the part of the defendant. State v. Nuccio, 454 So.2d 93 (La.1984). Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. The waiver of those rights must be on the record, unequivocal, express and knowing, and free and voluntary. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State v. Nuccio, supra.

While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell, 403 So.2d 688, 690 (La.1981). In State v. Strain, 585 So.2d 540, 543 (La.1991), the Louisiana Supreme Court emphasized that the determination of a valid waiver of counsel during a guilty plea depends on the entire record and not just by certain magic words used by the trial judge.

In State v. Hinson, 01-1548 (La.9/14/01), 797 So.2d 32, 32-33 (per curiam), the Louisiana Supreme Court found that the defendant knowingly and intelligently waived his right to counsel before pleading guilty based on the totality of the circumstances. The court, citing Strain, supra, reiterated that whether a plea is knowing and voluntary is determined by the entire record and not just by certain magic words used by the trial judge. See also, State v. Vicknair, 09-612 (La.App. 5 Cir. 1/26/10), 32 So.3d 238, 243.

Further, a written form containing a waiver of rights is a part of the record, and can be examined to determine the free and knowing nature of the plea. State v. Dunn, 390 So.2d 525 (La.1980). In Dunn, the Louisiana Supreme Court noted that, during the guilty plea colloquy, the trial judge failed to specifically refer to the defendant’s privilege against self-incrimination. The supreme court opined that, although a “direct, three-right colloquy between the trial judge and defendant is preferable and ... encouraged,” a written waiver-of-rights form may be considered in determining whether the defendant was adequately “informed” of his rights. Dunn, 390 So.2d at 527. Finally, the Dunn court considered the waiver-of-rights form that was initialed and signed by the defendant a “sufficient affirmative | fishowing in the record of an express and knowing waiver of defendant’s privilege against self-incrimination.” Dunn, 390 So.2d at 527. This Court held similarly in State v. Hebert, 02-884 (La.App. 5 Cir. 12/30/02), 838 So.2d 30, 31-34 (transcript of the plea colloquy and the well-executed waiver-of-rights form constituted sufficient affirmative showing on the record that the defendant knowingly waived his privilege against self-incrimination without specific advisal of right against self-iricrimination from trial judge) and State v. Cole, 04-615 (La.App. 5 Cir. 3/1/05), 900 So.2d 15, 23-24 (explanation by defense counsel and a well-executed waiver-of-rights form were sufficient to support a knowing and voluntary guilty plea even without specific advisal of the right against self-incrimination from trial judge).

In the instant case, defendant withdrew his initial plea of not guilty and entered a plea of guilty to carnal knowledge of a juvenile on August 16, 1999. During the Boykin colloquy, defendant informed the trial judge that he was 22 years old and had attended two years of college. The trial judge explained that defendant was being charged with carnal knowledge of a juvenile, and that the maximum sentence for conviction of that offense was 10 years at hard labor.

During the colloquy, the trial judge told defendant that no one could force him to plead guilty and confirmed that no one had used any force, intimidation, coercion, or promises of rewards to induce him to plead guilty. The trial judge further advised defendant that he had the right to hire an attorney of his choice, or, if he could not afford an attorney, to have an attorney appointed at no cost to him. The trial judge informed defendant that he had a right to trial by jury or, if he chose, by a judge; the right to confront his accusers; and the right to compel testimony from his witnesses.

[7Next, the trial judge told defendant that, if the court accepted his plea, defendant could not assert any allegation or defects such as an illegal- arrest, an illegal search and seizure, an illegal confession, or an illegal line-up. Defendant also indicated that he understood that, by pleading guilty, he was admitting that he did, in fact, commit the charged offense.

The trial judge asked defendant whether his attorney had advised him that, if his plea was accepted, his sentence would be four years at hard labor. Defendant indicated that he understood the offered agreement. The trial judge also informed defendant that this conviction could be used to enhance a sentence in the event of a subsequent conviction. Defendant indicated that he understood these rights and the fact that he was giving up these rights if he plead guilty. Following the colloquy, the trial judge accepted defendant’s plea, finding that defendant had made a knowing, intelligent waiver of his rights, and that his guilty plea was knowing, intelligent, free and voluntary.

Further, the transcript of the guilty plea proceedings reflects that, prior to the colloquy, defendant’s attorney advised the trial judge that he had completed the appropriate waiver-of-rights, or Boykin, form with defendant. The first paragraph of that Boykin form, which was introduced into the record, reads:

Your attorney has indicated to me that he/she advised you of your rights (1) to a trial by jury or by the Court alone, (2) to confront your accusers, and (3) of your right against self-incrimination, and that by entering a plea of guilty you are waiving or giving up these rights. He/she has' also indicated to me that you have advised him/her that you understand these things. Is that correct?

| SA1 though defendant did not initial that introductory paragraph, he did initial the remaining questions on the form. Furthermore, defendant struck through language in the paragraph immediately above his signature to specify that he was not waiving the statutory delay between his guilty plea and sentencing as noted:

I, as the defendant in this case, acknowledge that the foregoing has been read to me, that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty, all of my rights to me, and what rights I am waiving or giving up, as listed above, and that I have been given every opportunity by the trial judge to ask questions in open court about anything I do not understand and about all of the consequence regarding my plea of guilty. I am completely satisfied with the explanations of my attorney and the judge.
I, further acknowledge that my act of pleading guilty is a knowing, intelligent, free and voluntary act on my part. I know that no one can force me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing remains except for the judge to give judgment and give me my punishment. I waive-ahr delays-for sentencing and-acknowledge-I am-ready for-sentencing, (Emphasis in original).

The waiver of' constitutional rights form was signed by defendant and his attorney, then signed and dated by the trial judge.

Upon review, we find that, although the trial judge did not specifically advise defendant of his right against self-incrimination, defendant’s plea colloquy along with the well-executed waiver-of-rights form constitutes a sufficient affirmative showing on the record that defendant knowingly waived his privilege against self-incrimination. Dunn, supra.

Next, defendant argues that his guilty plea is invalid because he was not advised of the sex offender registration requirements. At the time of the instant Igoffense, La. R.S. 15:543(A) provided: “[t]he court shall provide written notification to any defendant charged with a sex offense of the registration requirements of La. R.S. 15:542. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant.”

The record supports defendant’s contention that he did not receive notice as required by La. R.S. 15:543 before tendering his guilty plea. Defendant does not, however, specify how the court’s omission affected the voluntariness of his guilty plea.

In State v. Smith, 09-769 (La.App. 5 Cir. 3/9/10), 38 So.3d 894, writ denied, 10-0843 (La.11/5/10), 50 So.3d 812, the defendant appealed his conviction claiming his guilty plea was not knowing and voluntary because he was not advised of the sex offender registration requirements at any time during the plea process. This Court found that the record demonstrated the defendant’s guilty plea was knowing and voluntary despite the fact that he was not advised of the sex offender registration requirements. This Court noted the defendant received a very favorable plea bargain. The defendant’s charge was reduced from aggravated rape to forcible rape, and thus, his sentence was reduced from a possible life sentence to 25 years. Additionally, the State agreed not to file a multiple offender bill against the defendant using the instant conviction as an underlying felony. The plea colloquy also established that defendant was advised of his rights and voluntarily |1flwaived them. This Court held the trial court did not err in refusing to allow the defendant to withdraw his guilty plea on the basis that he was not informed of the sex offender registration requirements.

Here, as in Smith, supra, defendant received a very favorable result from his plea bargain. In this case, he bargained for a four-year sentence for his conviction for carnal knowledge of a juvenile as well as a concurrent 15-year sentence for his conviction for distribution of cocaine in case number 99-1283. Further, the State also dismissed a pending charge of distribution of cocaine within one thousand feet of a school and agreed not to file a multiple bill using the carnal knowledge conviction as an underlying conviction. Without his plea bargain, defendant was facing up to 40 years imprisonment with a fine up to $50,000.00. Additionally, if the State had filed a multiple bill and successfully proved that defendant was a third felony offender, he faced a possible life sentence under La. R.S. 15:529.1.

Moreover, as discussed infra, defendant’s guilty plea was knowing and voluntary; the guilty plea colloquy and Boykin form verify that defendant was advised of his rights and knowingly and voluntarily waived them. Accordingly, we find, as in Smith, supra, that the trial judge’s omission of advisal regarding the sex offender registration requirements in the present case did not render defendant’s guilty plea involuntary. Based on the foregoing, we find no error in the trial judge’s denial of defendant’s motion to withdraw his guilty plea. This assignment lacks merit.

In his second assignment of error, defendant argues that he was denied effective assistance of counsel. Specifically, he contends that his attorney and the Indistrict attorney misled and/or pressured him into pleading guilty by conveying to him that if he did not plead guilty, the State would seek a life sentence as a third felony offender. He further contends that the State indicated that one of the offenses that would be used as a predicate was a conviction for an armed robbery he committed as a juvenile, which he later learned could not be used to enhance his sentence. Thus, defendant maintains that his attorney should have advised him that the State’s threats of a life sentence were unfounded as they were not permissible under the law. Finally, defendant asserts that his counsel was ineffective for failing to file a timely motion for appeal on his behalf.

In response, the State argues that despite defendant’s contention that he pled guilty because he believed he faced a possible life sentence, nothing in the record supports defendant’s assertion that his counsel misled him as to the status of the law. The State also maintains that defendant has no right to challenge the viability of a habitual offender bill that was not filed. The State asserts that defendant entered into a favorable plea agreement and has failed to show.that his counsel’s performance was deficient or that he was prejudiced. The State maintains that at the close of the sentencing proceeding, defense counsel ensured that defendant understood the appeal and post-conviction prescriptive period and that his trial counsel would not handle his appeal. Finally, the State submits that the record demonstrates that defense counsel vigorously represented defendant throughout the proceedings and that defendant received a favorable plea agreement as a result. Accordingly, the State notes that defendant’s ineffective assistance of counsel claims do not meet either the first or second prongs of the Strickland test.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63.

Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, 05-53, 908 So.2d at 63 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). This requires showing that counsel’s errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. There is no precise definition of reasonably effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of the case, and must take into consideration the counsel’s perspective at the time. State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, 1078-79, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). The Sixth Amendment does not guarantee er-rorless counsel or counsel judged ineffective by hindsight. Id.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full | ^^evidentiary hearing can be conducted, rather than on direct appeal. State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 983. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).

In this case, the record contains sufficient evidence to rule on the merits of defendant’s ineffective assistance of counsel claims. The record does not support defendant’s assertion that he was misled and/or pressured into pleading guilty in order to avoid a life sentence. Specifically, at the hearing on his motion to withdraw guilty plea, defendant argued that he pled guilty because he was told that he would face a possible life sentence if he did not.

Defendant testified that he later learned that his four prior convictions for armed robbery entered on October 2, 1991 could not be used as predicate convictions because they were juvenile adjudications. Defendant stated that his attorney and the district attorney had misled him regarding the possibility of being adjudicated a third felony offender and sentenced to life imprisonment.

In response to defendant’s allegations, the prosecutor replied:

The defendant has accused all of us of threatening him with life imprisonment. I am not cavalier when I say this, but it was not a threat, it was a promise. I do not think I communicated that directly with Mr. Jones. It is not my usual practice. I never talk to defendants. I probably told that to Mr. Fleming—
—and the basis of it was that [defendant’s] rap sheet shows that on October 2nd, 1991, defendant was convicted of four counts of armed robbery. Those counts along with the distribution of marijuana which the multiple bill is based on and a conviction of this offense 114would allow the State to multiple bill him as a three time offender; three strikes and you’re out life sentence. Again, it was not a threat. It was an acknowledgement to defense counsel if he did not plea, that’s what the State intended to do.

Defense counsel further responded regarding his advisal with respect to this issue:

I did not indicate to Mr. Jones that he would receive life. I had indicated that the prosecutor would try to give him a life sentence. I told Mr. Jones that the first conviction, the armed robberies— well, actually it’s a juvenile adjudication which occurred prior to the change in the multiple offender law which now allows you to use some certain juvenile adjudications — I had had indicated to him it was my belief that they could not do that, that the court was inclined, however, to agree with the district attorney, and he might have a hard time on appeal with that issue. That it could — if the prosecutor’s position is right, he would face a mandatory life sentence.
I further communicated to Mr. Jones that even if we are right and he would still in fact be a second multiple offender, fifteen years would be the minimum sentence on that case, and he could certainly receive up to at least sixty years on the distribution and I guess twenty years on the carnal knowledge as a second offender, and it was certainly in his best interest.

Thus, the record in this case indicates that neither the prosecutor nor defense counsel misled the defendant as to the status of the law in effect at the time.

Moreover, despite defendant’s contention that his attorney was inadequately representing him, the record reflects otherwise. Defense counsel advised the trial court that he hired a private investigator to work with him and thoroughly investigated this matter. Defense counsel filed various omnibus pre-trial motions including a Motion for a Preliminary Examination, Motion to Suppress the Evidence, Confession, Statement, and/or Identification, Motion for Pre-Trial Disclosure of Evidence of Independent and Separate Offense, Wrongs, or Acts, Motion for Criminal Records and Pending Charges of all State Witnesses, and a Motion for Reduction of Bond. Further, at the hearing on defendant’s Motion to | ir,Suppress Statement, defense counsel questioned various witnesses, reviewed all information given to him by defendant, and presented arguments in support of the motion.

Furthermore, defendant received the benefit of a favorable plea agreement despite defendant’s inculpatory statement regarding the instant offense. At the time of the offense, the sentencing exposure for the instant carnal knowledge of a juvenile was up to ten years. See, La. R.S. 14:80. Further, as part of the same plea bargain, defendant tendered a plea to distribution of cocaine, which exposed defendant to a minimum of five years and a maximum of thirty years at hard labor. See, La. R.S. 40:967. Thus, defendant faced a possible maximum term of imprisonment of 40 years, if the sentences were imposed consecutively. Instead, pursuant to defendant’s plea agreement, he was sentenced to 15 years for the distribution of cocaine offense and four years for the carnal knowledge of a juvenile offense, to be served concurrently. The State agreed to dismiss a pending charge for distribution of a controlled dangerous substance within one thousand feet of a school.

Upon review, we find that defendant has failed to show that his counsel’s performance was deficient, and that he was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Dabney, 05-53, 908 So.2d at 68. Accordingly, defendant has failed to establish the first criteria to prove ineffective assistance under Strickland.

Lastly, defendant argues that he was denied effective assistance of counsel when his attorney failed to file a timely motion for appeal on his behalf. He argues that he was prejudiced by his counsel’s omission because the trial court originally dismissed his pro se motion for appeal as untimely, which took twelve years to rectify-

| ¶ (Although it is true that the trial court incorrectly denied defendant’s pro se motion for appeal as untimely, that ruling is not attributable to defense counsel. Moreover, any error in this regard was corrected by defendant when he filed a timely pro se motion for appeal and by the trial court when it granted defendant’s out-of-time appeal. See, State v. Wood, 34,819 (La.App. 2 Cir. 8/22/01), 793 So.2d 441, 452 (citing State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461). Finally, the claim is rendered moot because the defendant is now before the court on appeal. Id.

In light of the foregoing, we find that defendant has failed to establish deficiency or prejudice as required under Strickland. This assignment of error lacks merit.

Errors patent

As is our routine practice, this record was reviewed for errors patent, according to La.C.Cr.P. art. 920. Our review reveals that defendant was not given a complete advisal regarding the time period for seeking post-conviction relief provided in La.C.Cr.P. art. 930.8. Specifically, the transcript indicates that the trial judge advised the defendant that he has “two years from today’s date to seek post-conviction relief.” By this opinion, this Court can correct said error by informing the defendant of the applicable prescriptive period for post-conviction relief. Accordingly, defendant is notified that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is |17filed more than two years after the judgment of conviction and sentence have become final under the provisions of La.C.Cr.P. arts. 914 or 922.

Next, at the time of the offense, carnal knowledge of a juvenile, in violation of La. R.S. 14:80, was defined as a sex offense under La. R.S. 15:542(E). La. R.S. 15:543(A) requires the trial court to notify a defendant charged with a sex offense in writing of the registration requirements of La. R.S. 15:542. As noted supra, the trial court failed to inform defendant of the sex offender registration requirements in accordance with La. R.S. 15:540 et seq. The trial court’s failure to provide this notice is an error patent that requires remand.

Accordingly, this case is remanded to the trial court with instructions to the trial judge to inform defendant of the registration requirements for sex offenders by sending appropriate written notice to defendant, within ten days of this Court’s opinion, and to file written proof in the record that defendant received such notice. State v. Starr, 08-341 (La.App. 5 Cir. 11/25/08), 2 So.3d 451, 460-61, writ denied, 08-2991 (La.9/18/09), 17 So.3d 384. In all other respects, defendant’s conviction and sentence are affirmed.

AFFIRMED; REMANDED.

      . On October 19, 1999, defendant also pled guilty to distribution of cocaine, in violation of La. R.S. 40:967A, in case number 99-1283. That day, the trial judge, in accord with the plea agreement, sentenced defendant to 15 years at hard labor to run concurrent to the sentence in the instant case, and a parole revocation that defendant was serving. Further, defendant has also appealed his conviction in case number 99-1283, which is before this Court in docket number 13-KA-99.

      . On October 26, 1999, defendant filed a motion for appeal. On or about July 25, 2000, relator sought mandamus relief requesting that this Court order the trial judge to rule on defendant’s pro se motion for appeal. On August 11, 2000, this Court ordered the trial judge to rule on defendant's motion. State ex rel. Jones v. Green, 00-1343 (La.App. 5 Cir. 8/11/00) (unpublished writ disposition). On August 29, 2000, the trial judge denied defendant’s motion for appeal as untimely. After 12 years, defendant again' sought relief with this Court, which instructed the trial court to reconsider defendant’s motion for appeal. Jones v. State, 12-379 (La.App. 5 Cir. 6/1/12) (unpublished writ disposition). On November 26, 2012, the trial court granted defendant’s Motion for Appeal.

      . On the date of the offense, La. R.S. 14:80(A) read:
      Carnal knowledge of a juvenile is committed when: A person over the age of seventeen has sexual intercourse, with consent, with any person of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons and the victim is not the spouse of the offender....

      . ‘‘[T]o protect the identity and provide for the safety and welfare of crime victims who are minors under the age of eighteen years and of victims of sex offenses, all public officials ..., including but not limited to ... judicial officers shall not publicly disclose the name, address, or identity of crime victims who at the time of the commission of the offense are minors under eighteen years of age or of victims of sex offenses, regardless of the date of commission of the offense/’ La. R.S. 46:1844(W)(l)(a). As such, we will use initials to refer to the victim.

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

      . See, State v. Hebert, supra. "There has never been a requirement that a defendant initial each line in a plea form.” State v. Woods, 09-399 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 405, writ denied, 10-0784 (La.10/29/10), 48 So.3d 1096. See also, State v. Nelson, 10-760 (La.App. 5 Cir. 3/29/11), 63 So.3d 280, 283-284 (even though the well-executed waiver of constitutional rights form did not contain the defendant's initials, the plea colloquy and waiver form constituted a sufficient affirmative showing on the record that the defendant was advised of her rights, that she understood them, and that she made a knowing and intelligent waiver of them).

      . Notably, defendant raises this issue for the first time on appeal. Defendant did not include this issue as a basis for his motion to withdraw guilty plea. However, a defendant’s failure to make a formal motion to withdraw a guilty plea does not prohibit a constitutionally infirm guilty plea from being set aside either by means of appeal or post-conviction relief. See, State v. Dixon, 449 So.2d 463, 464 (La.1984).

      . In State v. Dick, 06-2223 (La.1/26/07), 951 So.2d 124, 127, the Louisiana Supreme Court stated "that the law in effect at the time of the commission of the offense is determinative of the penalty which the accused must suffer, State v. Wright, 384 So.2d 399, 401 (La.1980), and that a defendant must be sentenced according to the sentencing provisions in effect at the time of the commission of the offense. State v. Narcisse, 426 So.2d 118, 130-131 (La.1983), cert. denied, Narcisse v. Louisiana, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); [State v.] Sugasti, 01-3407 [(La.6/21/02)], 820 So.2d [518,] 520.”

      . La. R.S. 15:543 was amended by Acts 2007, No. 460, § 2, eff. Jan. 1, 2008; Acts 2008, No. 816, § 1; and, most recently, Acts 2013, No. 408, § 1, effective August 1, 2013.

      . La. R.S. 15:542 was amended Acts 1999, No. 930, § 1; Acts 1999, No. 1150, § 1; Acts 2001, No. 78, § 1; Acts 2001, No. 1206, § 1; Acts 2002, 1st Ex.Sess., No. 83, § 1; Acts 2003, No. 215, § 1; Acts 2003, No. 574, § 1; Acts 2004, No. 338, § 1; Acts 2005, 1st Ex. Sess., No. 11, § 1; Acts 2006, No. 204, § 1; Acts 2006, No. 284, § 1; Acts 2006, No. 663, § 1; Acts 2006, No. 683, § 1; Acts 2006, No. 791, § 1; Acts 2007, No. 460, § 2, eff. Jan. 1, 2008; Acts 2008, No. 147, § 1; Acts 2008, No. 273, § 1; Acts 2008, No. 814, § 1; Acts 2008, No. 816, § 1; Acts 2010, No. 400, § 1; Acts 2011, 1st Ex.Sess., No. 18, § 1; Acts 2011, No. 216, § 1; Acts 2012, No. 402, § 1; and, most recently, Acts 2013, No. 408, § 1, effective August 1, 2013.

      . At the time of defendant’s convictions, an offender faced a maximum penalty of ten years under La. R.S. 14:80 for carnal knowledge of a juvenile, and thirty years under La. R.S. 40:967(A) plus a possible $50,000.00 fine for distribution of cocaine.

      . At the sentencing hearing, the State noted that defendant had prior convictions for armed robbery and distribution of marijuana.

      . At the hearing on defendant’s motion to withdraw his guilty plea, the State asserted that defendant’s, rap sheet showed that defendant was convicted of four counts of armed robbery on October 2, 1991. Defendant, who was bom on December 28, 1976, was fourteen years old on the date of those convictions.

      . Although the Louisiana Supreme Court in State v. Brown, 03-2788 (La.7/06/04), 879 So.2d 1276, writ denied, 543 U.S. 826, 125 S.Ct. 158, 160 L.Ed.2d 40 (2004) later struck down the provision in the Habitual Offender law that allowed prior juvenile adjudications rendered without the right to a jury trial to be used as predicate offenses, the provision was in effect at the time of defendant’s guilty plea in 1999 and, thus, advice that the adjudications could be used as predicates was not misleading. See also, State v. Lemon, 05-567 (La.App. 5 Cir. 2/14/06), 923 So.2d 794.

      . Defendant committed the instant offense on September 15, 1998. He was sentenced on October 19, 1999. La.C.Cr.P. art. 930.8 was amended to shorten the prescriptive period from three years to two years, effective August 15, 1999. This amendment has been held to be retroactive. State v. Boles, 99-662 (La.App. 5 Cir. 11/10/99), 750 So.2d 1059, 1062.

      . See, State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753, (La.2/10/12), 80 So.3d 468; State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10), 54 So.3d 688, writs denied, 10-2758 (La.4/25/11), 62 So.3d 89 and 10-2752 (La.5/20/11), 6 So.3d 974; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473; State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767, 768, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.

      . The law in effect at the time of the commission of the offense is determinative of the penalty that the convicted accused must suffer. State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1094 n. 9, writ denied, 09-1394 (La.2/26/10), 28 So.3d 268 (citing State v. Sugasti, supra).

      . See State v. Gaddis, 07-395 (La.App. 5 Cir. 11/13/07), 973 So.2d 21, 28, writ denied, 08-0156 (La.10/10/08), 993 So.2d 1277; State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213; State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-67.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana, In the Interest of D.W.
    No. 13-KA-114.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 18, 2013.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Amanda Calogero, Elizabeth Curren, John Messina, Assistant District Attorneys, Harvey, LA, for Plain-tiffiAppellee.
    Annette Roach, Attorney at Law, Louisiana Appellate Project, Lake Charles, LA, for defendant/appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

laD.W. was adjudicated delinquent for illegal possession of a handgun by a juvenile, second offense, in violation of La. R.S. 14:95.8B(2), and was committed to the Office of Juvenile Justice (“OJJ”) for two years to run concurrently with the revocation of his parole in Complaint “C.” This appeal followed. For the following reasons, D.W.’s adjudication and commitment are affirmed.

FACTS

On October 27, 2012, Deputy Candice Emmanuel of the Jefferson Parish Sheriff’s Office was working a detail at Nicholas Playground when a parent pointed out a suspicious male (hereafter “the ‘suspect’ ”), who was wearing a camouflage jacket and denim jeans. Deputy Emmanuel observed the “suspect,” who was with another male later identified as D.W. The “suspect” and D.W. left the park area and began to run “once the coaches began to try to get one of their |3players to come back inside of the playground area.” Deputy Emmanuel notified third district officers that she had been informed that the “suspect” may have a weapon. She requested that officers come to the scene to determine whether the “suspect” or D.W. were armed.

Deputy Michael Leyva responded to Deputy Emmanuel’s call for assistance. While he was traveling down Westwood near the playground, he saw a black male, later identified as D.W., running away from the playground. Deputy Leyva turned around and turned left on St. Ann Street. As soon as he did, he saw the same black male running. When Deputy Leyva got close, he saw D.W. discard a black handgun on the hood of a car, and then duck down. Deputy Leyva jumped out of his car, pulled his “side arm,” and told D.W. to get on the ground and show his hands. Deputy Leyva started walking toward the car, and D.W. came out and got on the ground. He kept his firearm drawn on D.W. until backup arrived.

Deputy Steven Dorsey and Deputy “Mel” arrived at the scene to assist Deputy Leyva. Deputy Dorsey handcuffed D.W. and placed him in the police unit. Deputy “Mel” retrieved a black handgun from the hood of the car. The deputies also retrieved an “extended clip” that was stuck in a garden. The officers radioed for Deputy Emmanuel to come and meet them to possibly identify the “suspect” or D.W. When Deputy Emmanuel arrived at St. Ann Street, she positively identified D.W. The “suspect” who was wearing the camouflage jacket escaped.

D.W. testified that on October 27, 2012, at approximately 3:30 P.M., he was at Nicholson Playground with his mother, stepfather, and two friends. He testified that when he came from the bathroom, one of his friends was in an altercation with another group of friends. The police approached the group, and everybody started running, including D.W. and his friend, who ran from the park in between the houses. He testified that when they got to St. Ann Street, he stopped right by a car |4and a house, but his friend escaped. D.W. denied placing any kind of handgun on the hood of the car. He conceded that he saw the police take the gun off the car, but he did not see where the clip came from. D.W. admitted that he was on parole for illegal carrying of a firearm, the same offense he was charged with in this case.

SUFFICIENCY OF EVIDENCE

In his first assignment of error, D.W. claims that the evidence was insufficient to prove each element of illegal possession of a handgun by a juvenile, second offense, beyond a reasonable doubt.

In order for the court to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C. art. 883. In reviewing the sufficiency of evidence, appellate courts must determine that the evidence, direct or circumstantial, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt, in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. D.W., 09-855 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048, 1053. In a juvenile delinquency proceeding, the State’s burden of proof is the same as in a criminal proceeding against an adult, i e., to prove beyond a reasonable doubt every element of the offense alleged in the petition. Id.

The rule as to circumstantial evidence is that “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.

In juvenile proceedings, the scope of review on appeal extends to both law and facts. See La. Const, art. V, Section 10(B); State in the Interest of D.S., 11-416 (La.App. 5 Cir. 12/28/11), 83 So.3d 1131, 1136. The “clearly wrong-manifest | .¡¡error” standard of review should be used to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. Id.

Although appellate review of juvenile cases extends to law and fact, the Juvenile Court judge observes the conduct and demeanor of the witnesses and is in a better position to determine credibility and weigh the evidence. State in the Interest of D.S., 83 So.3d at 1136. Thus, the appellate court should afford great deference to the judge’s findings of fact and to the judge’s determination of witness credibility and weight to be given their testimonies. Id. Appellate courts may not reverse findings of the trial court unless manifestly erroneous or clearly wrong. Id.

Proof of Age

In the present case, D.W. was adjudicated delinquent of illegal possession of a firearm by a juvenile, second offense, in violation of La. R.S. 14:95.8. La. R.S. 14:95.8 provides that it is unlawful for any person who has not attained the age of 17 years knowingly to possess any handgun on his person. D.W. argues that the State failed to prove his age at trial.

Our review indicates that at the commencement of the adjudication hearing, but prior to the taking of evidence, the Juvenile Court judge requested D.W. to state his name and date of birth for the record and D.W. responded, “D.W., 12th month, 8, 95.” Later, after D.W. was sworn in prior to his testimony, defense | fiCounsel asked him to again state his name, and D.W. replied, “D.W., 12th month, 8, 95.” Even though D.W. did not explicitly testify that his date of birth was December 8, 1995, it is clear from his introductory appearance and his testimony that he was referring to his date of birth when he answered, “D.W., 12th month, 8, 95.” Further, the officers’ testimony confirmed that the incident occurred on October 27, 2012. Thus, D.W. was 16 years old at the time of the incident and, therefore, it would have been unlawful for him to possess any handgun on his person under La. R.S. 14:95.8.

Additionally, the date of birth on this petition “E,” and on two earlier petitions, “B” and “C,” is December 8, 1995. Furthermore, at every hearing. prior to December 19, 2012, D.W. identified his date of birth as December 8, 1995. See State in the Interest of Metoyer, 606 So.2d 74, 76 (La.App. 3 Cir.1992); State v. D.L., 29,789 (La.App. 2 Cir. 6/18/97), 697 So.2d 706, 709-710.

Based on the foregoing, a rational trier of fact could have found that the evidence was sufficient to prove that D.W. was under the age of 17 when he committed this offense. This assignment of error is without merit.

Possession

D.W. next argues that the State failed to prove he actually possessed the handgun as required under La. R.S. 14:95.8A.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. The credibility of the witnesses will not be reweighed on appeal. Id. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual 17conclusion. State v. Turner, 05-75 (La.App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied, 05-2591 (La.5/26/06), 930 So.2d 20.

At trial, Deputy Leyva testified that he saw D.W. discard a black handgun on the hood of a car and then duck down. The handgun was retrieved and admitted into evidence at trial. Deputy Leyva positively identified the handgun in evidence as the handgun that was discarded by D.W. D.W. denied placing any kind of handgun on the hood of a car. There is not any internal contradiction or irreconcilable conflict with physical evidence pertaining to Deputy Leyva’s testimony. The Juvenile Court judge obviously found the State’s witness to be more credible than D.W. Upon this evidence, a rational trier of fact could have found that the evidence was sufficient to prove that D.W. possessed the handgun. This assignment of error is without merit.

Length of Barrel

D.W. further argues that the State failed to prove that the length of the barrel of the handgun did not exceed 12 inches as required by La. R.S. 14:95.8D.

Deputy Emmanuel testified that she was notified by a parent at the playground that the “suspect” might have a weapon. Based on the deputy’s experience, she stated that the “suspect” áppeared suspicious! Deputy Emmanuel explained that typically when young juveniles wear loose clothing, they pull their pants up with both hands; however, the “suspect” did not do that. The “suspect” held his left arm very close to his body and used the right hand to go all the way around his body to pull his pants up. D.W., who was with the “suspect,” admitted at trial that he and the “suspect” started running when the police approached them. Deputy Leyva testified that he saw D.W. discard a black handgun on top of the hood of a car. Deputy Dorsey identified the weapon as a pistol. The handgun was |8admitted into evidence at trial and identified by the deputy as the weapon discarded by D.W.

Even though there was no testimony regarding barrel length, the Juvenile Court judge had the benefit of viewing the handgun, listening to the testimony and could see for herself whether the juvenile possessed a handgun as defined by La. R.S. 14:95.8 and R.S. 14:37.2. See State in the Interest of T.E., 12-517 (La.6/29/12), 91 So.3d 292, 292-295. Thus, the judge was not manifestly erroneous or clearly wrong in finding that the barrel of the handgun did not exceed 12 inches. This assignment of error is without merit.

Predicate Offense

D.W. further claims that the State failed to prove he was convicted of the predicate offense that was set forth in the petition. He contends that the State was attempting to use his conviction of La. R.S. 14:95 E as a predicate instead of his conviction of La. R.S. 14:95.8.

During cross-examination, the prosecutor asked D.W. what he was on parole for, and D.W. responded, “Illegal juvenile catching, carrying a firearm.” The prosecutor said, “Alright the same thing you’re charged with right now?” and D.W. responded, “Yes sir.” Thus, based on that testimony alone, we find that D.W.’s admission he had a prior conviction of La. R.S. 14:95.8 was sufficient to establish the predicate offense. Compare State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127, 1130 (testimony from witnesses may be used to establish prima facie proof of a prior conviction in a multiple offender case.)

Additionally, the record supports D.W.’s testimony that he had such a prior conviction. On January 20, 2012, a “Motion to Modify Judgment of Disposition Revocation of Probation” was filed into the record. In that motion, the probation officer moved for revocation of probation, stating that D.W. was adjudicated on | ¡¡January 19, 2012, for illegal possession of a handgun by a juvenile. In an affidavit attached to the motion, the probation officer asserted that she had received information that the offense occurred on October 30, 2011. Attached to the motion was a written judgment from the Juvenile Court in New Or-leáns dated January 19, 2012, and signed on January 25, 2012. The judgment indicated that D.W. pled guilty to illegal possession of a handgun by a juvenile that was committed on October 30, 2011. Although the statute referenced in the judgment was La. R.S. 14:95, and not La. R.S. 14:95.8, it is apparent that the reference to La. R.S. 14:95 was a clerical mistake, since R.S. 14:95.8 prohibits illegal possession of a handgun by a juvenile. The minute entry for February 2, 2012 indicates that the Juvenile Court judge in this case revoked D.W.’s probation on D.W.’s La. R.S. 14:95 E conviction in petition “C” based on his adjudication for La. R.S. 14:95.8 in Orleans Parish. Derryl Dunn of OJJ testified at the sentencing hearing that D.W. was committed to OJJ on February 14, 2012, for illegal possession of a handgun by a juvenile, and that he was released on September 12, 2012.

Considering the above, we find that a rational trier of fact could have found that D.W. had a prior conviction of La. R.S. 14:95.8. This assignment of error is without merit.

D.W. further argues that the predicate offense in the petition contained incorrect information.

The purpose of a delinquency petition is to' give the juvenile notice and an opportunity to defend. State v. Hillman, 353 So.2d 1356, 1358 (La.App. 3 Cir.1977). La. Ch.C. art. 844D provides that failure to comply with formal requirements of this Article shall not be grounds for dismissal of a petition or invalidation of the proceedings unless it results in substantial prejudice.

|inD.W. is correct that the State included incorrect information as to the predicate offense in petition “E.” However, the petition set forth that D.W. was being prosecuted for illegal possession of a firearm by a juvenile, second offense, in violation of La. R.S. 14:95.8 B(2), which was the correct statutory citation. The errors in the petition are not elements of the crime of illegal possession of a firearm by a juvenile, second offense. Moreover, the record indicates that D.W. only had one prior La. R.S. 14:95.8 conviction. As such, he had clear notice of the offense with which he was charged and the predicate offense, and the opportunity to defend himself against the allegations of the petition. Therefore, we can find no prejudice to D.W. caused by the errors in the petition.

Based on the foregoing, a rational trier of fact could have found that the evidence was sufficient to establish that D.W. was convicted of the predicate offense contained in petition “E.” This assignment of error is without merit.

CONSTITUTIONALITY OF STATUTE

In his second assignment of error, D.W. contends that La. R.S. 14:95.8 is unconstitutional and a violation of Article I, Section 11 of the Constitution of the State of Louisiana and the Fourteenth Amendment of the Constitution of the United States.

Litigants must raise constitutional attacks in the trial court, not the appellate courts, and the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864-65; See also State v. Hatton, 07-2377 (La.7/1/08), 985 So.2d 709, 718. Exceptions to this general rule are when: (1) a statute attempts to limit the constitutional power of the courts to review cases; (2) the statute has been declared unconstitutional in another case; (3) the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court; Inor (4) when an act which is the basis of a criminal charge is patently unconstitutional on its face and the issue appears as an error patent on the face of the record. Mosing v. Domas, 02-12 (La.10/15/02), 830 So.2d 967, 975 fn. 2.

D.W. did not properly plead or raise this issue in the trial court, no exceptions are applicable, and the issue will not be considered under this assignment of error on appeal.

ILLEGAL OR EXCESSIVE DISPOSITION

In his third assignment of error, D.W. claims that the Juvenile Court judge erred in imposing either an illegal or an excessive disposition.

The Louisiana Constitution of 1974, Art. I, Sec. 20 prohibits “cruel, excessive, or unusual punishment.” State ex rel. T.S., 04-1111 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 79. In considering dispositional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot be adequately safeguarded without such removal. La. Ch.C. art. 901(A); Id. at 80. Additionally, the court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. La. Ch.C. art. 901(B); Id. The commitment of a child to the custody of the Department of Public Safety and Corrections may be appropriate if there is an undue risk that during the period of probation the child will commit another crime, that the child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment, a lesser disposition will degrade the seriousness of the child’s delinquent act, or the delinquent act involved the illegal carrying, use, or possession of a firearm. La. Ch.C. art. 901(C); Id.

| |9On appeal, the record must be reviewed when excessive commitment in a juvenile proceeding is alleged in order to determine whether the juvenile court imposed the least restrictive disposition consistent with the circumstances of the case, the child’s needs, and the best interest of society. La. Ch.C. art. 901(B). Id. at 79. Because of the special nature of the proceedings, a juvenile court has much discretion, but must balance the needs of the child with the best interest of society. Id. at 79-80.

D.W. was adjudicated delinquent for illegal possession of a handgun by a juvenile, second offense, in violation of La. R.S. 14:95.8. La. R.S. 14:95.8B(2) provides that on a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.

At the sentencing hearing, Derryl Dunn testified that D.W. was committed to the OJJ on February 14, 2012, for illegal possession of a handgun by a juvenile and that he was released on September 12, 2012. Mr. Dunn testified that he was to supervise D.W. on parole, but D.W. was soon rearrested on October 27, 2012, for the present charge. Further, OJJ had made a referral to substance abuse counseling and “trackers,” but they had little effect on D.W. since he was arrested on the same charge a little more than one month after coming home. He further testified that he discussed this matter with the staff at the OJJ, and it was a consensus that if D.W. was found guilty of this charge, the OJJ was recommending that he be committed to secure care. Mr. Dunn also recommended revocation of D.W.’s parole, but that disposition run concurrently with the disposition on the present charge. The State, defense counsel, and the Juvenile Court judge agreed that revocation in that case was mandatory under La. Ch.C. art. 914 B..

|, sAfter hearing Mr. Dunn’s testimony, the Juvenile Court judge revoked D.W.’s “prior commitment.” She further stated that she would run the prior commitment concurrent with the current offense. The judge found that the• State had made a reasonable effort to consider D.W.’s health and safety to prevent or eliminate the need of removal from the home. She told D.W. that he had been offered probation supervision, the OJJ Tracker Program, Victim Awareness, ■ and substance abuse therapy and that he had been previously incarcerated and offered individual therapy, substance abuse therapy, and academic services, all to no avail. The judge stated that D.W. continued to place himself at risk by not complying with probation rules of the home, by testing positive for drugs, and by receiving additional charges for gun possession. Furthermore, reasonable efforts would be made to make it possible for D.W. to return home. She ordered family therapy, home visits, community resource referrals, individual substance abuse therapy, and academic services. The judge recommended that D.W. be assigned to the secure placement program, that the maximum duration would be two years, and that she would review the matter in four months. The Juvenile Court judge committed D.W. to the Department of Juvenile Justice for two years on this offense.

D.W. has a history of delinquent behavior and is clearly a threat to public safety, and that behavior and threat have continued unabated even having been given probation and offered numerous rehabilitative services with which he refused to comply. We therefore find that the Juvenile Court judge imposed the least restrictive disposition consistent with the circumstances of this case and D.W.’s needs. See La. Ch.C. art. 901(B); State ex rel. T.S., supra. This assignment is wholly without merit.

^INEFFECTIVE ASSISTANCE OF COUNSEL

In his fourth assignment of error, D.W. argues that his trial counsel was ineffective because he: (1) failed to raise and argue the constitutionality of La. R.S. 14:95.8; (2) failed to file a motion to quash the predicate conviction on the basis that an adjudication for possession of a firearm while in possession of a controlled dangerous substance could not be used to enhance an offense , of possession of a handgun by a juvenile to a felony-grade offense; and (3) failed to file a motion to reconsider the disposition.

An accused is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution. To prove ineffective assistance of counsel, a defendant must show both that: (1) his attorney’s performance was deficient; and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450 and 94-1361 (La.11/4/94), 644 So.2d 1055. An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

An ineffective assistance of counsel claim is best addressed through an application for post-conviction relief filed in the trial court wherein a full evidentiary hearing can be conducted. However, when the record contains | ^sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. In this case, the appellate record is thorough and sufficient for this Court to address D.W.’s claims.

Constitutionality of La. R.S. 14:95.8

First, D.W. contends that his trial counsel was ineffective for having failed to assert that La. R.S. 14:95.8 is unconstitutional in that it violates Article I, Section 11 of the Constitution of the State of Louisiana and the Fourteenth Amendment of the Constitution of the United States. He contends that if this statute were declared unconstitutional, there would be no basis for an adjudication. D.W. further argues that the statute restricts a juvenile’s right to carry a handgun without sufficient state interest to infringe upon a juvenile’s right to do so. Additionally, D.W. contends that the statute was not exempted from Article I, Section 11 of the 1974 Constitution and that it does not pass strict scrutiny under the 2012 provision of this article. He further asserts that all juveniles are not treated equally, as some juveniles are allowed to carry handguns and some are not. D.W. further argues that since the statute classifies an offender based on age, it presumptively denies equal protection of the laws and is therefore presumed unconstitutional.

The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, Section 11 of the Louisiana Constitution. The State of Louisiana is entitled to regulate that right for legitimate state purposes, such as public health and safety. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1333; State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

La. Const. Art. 1, Section 11 currently provides that the right of each citizen to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. La. Const. Art. 1, Section 11 was amended by Acts 2012, No. 874, Section 1, and approved on November 6, 2012. La. Const. Art. 1, Section 11 formerly provided that the right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. D.W. committed this offense on October 27, 2012, before the new amendment was approved, and therefore, it is unclear as to whether the new amendment would apply. However, under the following analysis, we find that La. R.S. 14:95.8 is constitutional under either version of the law.

A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. A statute should be upheld whenever possible. State v. Muschkat, 96-2922 (La.3/4/98), 706 So.2d 429, 432. Neither the Louisiana Supreme Court nor this Court has determined whether La. R.S. 14:95.8 is constitutional or unconstitutional.

Federal courts have found that similar statutes do not violate the Second Amendment and are constitutional. In United States v. Rene E., 583 F.3d 8 (1st Cir.2009), cert. denied, 558 U.S. 1133, 130 S.Ct. 1109, 175 L.Ed.2d 921 (2010), a juvenile was charged with possessing a handgun in violation of 18 U.S.C., Section 922(x)(2)(A). The juvenile entered a conditional guilty plea. On appeal, he argued, inter alia, that the statute violated his rights under the Second Amendment. The U.S. Court of Appeals, First Circuit, held that the statute did not violate the Second Amendment. It found that the law was a narrowly drawn federal prohibition on handgun possession by juveniles that contained exceptions for self- and other-defense in the home, National Guard duty, and hunting, among others. The First Circuit stated that it had evaluated this prohibition in light of state laws regulating juvenile access to handguns on the ground that their possession could pose a serious threat to public safety. It also stated that it had evaluated evidence which showed that the founding generation would have regarded such laws as consistent with the right to keep and bear arms. Therefore, the court concluded that the law, with its narrow scope and its exceptions, did not offend the Second Amendment. Id. at 16.

The First Circuit also noted that handgun possession by juveniles was banned by federal law in 1994 in the Youth Handgun Safety Act, and that the act was aimed at preventing juvenile misuse of handguns and associated crime. Id. at |1813. The federal ban on handguns was part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession posed a particular danger to the public. Id. at 15. The court lastly recognized that the U.S. Supreme Court had held repeatedly that the rights of minors were not commensurate with those of adults because of their inability to make informed and mature decisions. Id. at 16 n. 8. See also, Dozier v. State of Indiana, 709 N.E.2d 27, 31 (Ind. Ct.App.1999); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185 (5th Cir.2012).

La. Const. Art. 1, Section 11, provides at the present time that the right of each citizen to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. Under the strict scrutiny test, the state action may be justified only by a compelling state interest, and the state action must be narrowly confined so as to further only that compelling interest. State v. Perry, 610 So.2d 746, 760 (La.1992).

We find that La. R.S. 14:95.8 meets the strict scrutiny test because it is narrowly tailored to address the compelling state interest of protecting the public’s safety by attempting to curb juvenile gun violence with reasonable, limited restrictions. The statute is narrowly tailored in that it contains several exceptions which are found in La. R.S. 14:95.8C, including exceptions for hunting and target shooting at an established range. Juveniles who have permission from their parents are exempted from the statute. Further, the statute is narrowly tailored in that it only applies to individuals under the age of 17, and it criminalizes only actual possession on one’s person, and not constructive possession. See State in the Interest of R.D., 12-619 (La.App. 4 Cir. 10/3/12), 126 So.3d 504, 2012 WL 4711876, writ denied, 12-2495 (La.4/19/13), 111 So.3d 1030.

| U)Based on the foregoing, we find that La. R.S. 14:95.8 does not violate the Second Amendment or La. Const. Art. 1, Section 11, and is constitutional. We therefore conclude that D.W.’s trial counsel was not ineffective for failing to raise this issue in the trial court. This assignment of error is without merit.

D.W. next argues that La. R.S. 14:95.8 is unconstitutional because it violates equal protection of laws in that it discriminates against individuals on the basis of age. The Fourteenth Amendment to the United States Constitution, and Article I, Section 3 of the Louisiana Constitution provide that-no person shall be denied the equal protection of law. Equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar advantage of a “suspect” class. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520(1976).

First, as discussed above, La. R.S. 14:95.8 does not impermissibly interfere with Second Amendment rights. Secondly, age is not a “suspect” classification. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Government may discriminate on the basis of age without offending the constitutional guarantee of equal protection, provided that such age classification in question is rationally related to a legitimate state interest. Id. at 83-84. Because La. R.S. 14:95.8 is rationally related to the legitimate state interest of protecting the public’s safety by reasonably attempting to curtail juvenile gun violence, the statute does not violate equal protection guarantees and is therefore constitutional. We further find that D.W.’s trial counsel was not ineffective for failing to raise this issue in the trial court. This assignment of error is without merit.

12(Motion to Quash

Next, D.W. contends that his trial counsel was ineffective for failing to file a motion to quash the predicate conviction. He contends, that the predicate offense alleged in the petition could not serve to enhance the instant offense. D.W. asserts that the State failed to prove that a prior adjudication for a violation of La. R.S. 14:95E was a proper predicate for enhancement of an adjudication for a violation of La. R.S. 14:95.8.

The record reflects that the State claimed a prior Orleans Parish conviction of La. R.S. 14:95.8 as the predicate offense. It did not claim a prior conviction of La. R.S. 14:95 E. As discussed in Assignment of Error One above, even though there, were technical errors alleging the prior conviction, a rational trier of fact could have found that the evidence was sufficient to prove the predicate conviction. Therefore, we find that D.W.’s trial counsel was not ineffective for failing to file a motion to quash the predicate conviction. This assignment of error is without merit.

Motion to Reconsider Disposition

D.W. further claims that his trial counsel was ineffective for failing to file a “motion to reconsider the disposition.” He indicates that such a motion should have been filed because his disposition was excessive. It appears that D.W. is arguing that his trial counsel was ineffective for failing to file a motion to modify the disposition. As the State correctly noted, such a motion would have no effect on the merits of the adjudication, and under La. Ch.C. art. 909, the court may modify the disposition at any time. Nevertheless, we find that it is unlikely that a motion to modify the disposition would have succeeded because of D.W.’s extensive criminal history and his refusal to abide by the terms of his probation or parole, as previously discussed in Assignment of Error Three. Given the judge’s ^reasons for disposition, it is highly unlikely that she would have granted such a motion. This assignment of error is without merit.

ERROR PATENT DISCUSSION

In juvenile cases, La.C.Cr.P. art. 920 mandates an error patent review whether or not defense counsel requests it. Our review reveals one error patent that requires corrective action.

The Juvenile Court judge failed to advise D.W. of the two-year delay period for seeking post-conviction relief as mandated by La. C.Cr.P. art. 930.8. We therefore hereby advise D.W. that any application for post-conviction relief, including an application which seeks an out-of-time appeal, must be filed within two years after the adjudication and disposition (conviction and sentence) becomes final under the provisions of La.C.Cr.P. arts. 914 and 922. State in the Interest of T.M., 12-436 (La.App. 5 Cir. 11/27/12), 105 So.3d 969, 974.

CONCLUSION

For the above stated reasons, D.W.’s delinquent adjudication and commitment are affirmed.

AFFIRMED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the minor involved will be used to protect the child’s identity. State in the Interest of M.B., 12-547 (La.App. 5 Cir. 1/30/13), 108 So.3d 1237, 1238 n. 1.

      . The playground is actually named Nicholson, not Nicholas.

      . La. R.S. 14:95.8 provides in pertinent part:
      A. It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.
      B. (2) On a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.

      D. For the purposes of this Section "handgun” means a firearm as defined in R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.
      La. R.S. 14:37.2 provides that for purposes of this Section, "firearm” is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.

      . A letter was sent to the Louisiana Attorney General (AG) on April 2, 2013, informing him that the constitutionality of La. R.S. 14:95.8 was raised in this appeal, and that if his office wanted to brief the issue, the deadline for doing so was May 2, 2013. The letter notified the AG that the letter was sent pursuant to La. R.S. 49:257C, and that it was providing the notice required by La. R.S. 13:4448. The AG’s Office has not filed a brief.

      . La. R.S. 14:95.8 was added by Acts 1999, No. 1218, Section 1, and it provides in pertinent part:
      A. It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.

      C. The provisions of this Section shall not apply to any person under the age of 17 years who is:
      (1) Attending a hunter’s safety course or a firearms safety course.
      (2) Engaging in practice in the use of a firearm or target shooting at an established range.
      (3) Hunting or trapping pursuant to a valid license issued to him pursuant to the laws of this state.
      (4) Traveling to or from any activity described in Paragraph (I), (2), or (3) of this Subsection while in possession of an unloaded gun.
      (5) On real property with the permission of his parent or legal guardian and with the permission of the owner or lessee of the property.
      (6) At such person’s residence and who, with the permission of such person's parent or legal guardian, possesses a handgun.
      (7) Possessing a handgun with the written permission of such person’s parent or legal guardian: provided that such person carries on his person a copy of such written permission.
      D. For the purposes of this Section "handgun” means a firearm as defined in R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.

      . In its analysis, the First Circuit in United States v. Rene E., pointed out that for a long time the states were engaged in regulating firearms, including their transfer to and possession by juveniles. It noted that some states criminalized the mere possession of handguns by juveniles, citing Glenn v. State, 10 Ga.App. 128, 72 S.E. 927 (1911), where a Georgia court held that a ban on juvenile possession of handguns did not violate the Georgia constitution, and Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182, 184-85 (1917), where the Illinois Supreme Court held that a Chicago ordinance that required individuals to obtain permits to purchase concealable weapons, including handguns, but denied such permits to all minors, did not violate either the Illinois or the U.S. Constitution. United States v. Rene E., 583 F.3d at 14-15.

      . State ex rel. Z.S., 01-1099 (La.App. 5 Cir. 2/26/02), 811 So.2d 1003, 1008.