author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Rita Kay NICHOLSON, Appellant.
    No. 49,347-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.
    Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

Rita Kay Nicholson pled guilty to indecent behavior with juveniles and received a sentence of five years at hard labor with sex offender registry requirements. Nicholson argues that her sentence is excessive. We affirm.

Facts

On March 26, 2018, 45-year-old Nicholson was jointly charged with her husband, William Dudley Nicholson, with the crimes of cruelty to juveniles, in violation of La. R.S. 14:98, and indecent behavior with juveniles, in violation of La. R.S. 14:81. The charges arose out of acts occurring over a 6-year period and involved Nicholson’s daughter.

On June 18, 2013, Nicholson pled guilty to indecent behavior with juveniles with the sentence subject to the trial judge’s discretion and the state’s agreement to forgo the remaining charge. The state alleged that Nicholson violated La. R.S. 14:81 by committing a lewd or lascivious act in the presence of a juvenile who was older than 13 years old and approximately 14 years old and again when the juvenile was at least 13 years old and no older than 14. The following facts were read into the record:

The lewd or lascivious act consisted of Rita Nicholson being present — Rita Nicholson being present with William Nicholson while they were both naked and the juvenile was naked. And William Nicholson gratified himself sexually in the presence of the naked juvenile. And Rita Nicholson — and she was a principal to that action. It was performed with the intention of arousing or gratifying the sexual desires of Rita and William Nicholson.

The court informed Nicholson of the maximum sentence she faced and ordered a presentence investigation. Nicholson was sentenced on l2November 26, 2013. At the hearing, Nicholson argued that in her victim impact statement, her daughter “overstated [Nicholson’s] role in this.” She contended that the conduct described in her guilty plea was more descriptive of what she did.

On the record, the trial court stated that it had reviewed the victim’s impact statement and Nicholson’s potential for rehabilitation. In fashioning the chosen sentence, the court noted its consideration of the stepfather’s sentences for his convictions arising out of the charged offenses. Regarding Nicholson, the court observed this crime as being her first felony offense. Her age, educational background and social and family history, including the facts of Nicholson’s own adoption and previous marriage, were also considered by the court.

The court noted that Nicholson met her co-defendant husband online in 2002. At the time of her arrest she worked in the healthcare field taking care of elderly patients. The court characterized the facts of this case as being shocking to “most decent-minded individuals,” after specifically referencing the facts of the crime including the young age of the victim. As mitigating circumstances, the court considered that Nicholson threw out recording devices found in the bathroom and bedroom and threatened her husband with physical injury in an attempt to get him to stop the criminal activity. Nevertheless, the court considered that Nicholson ultimately did nothing to stop the behavior and in fact participated in the crime against her own daughter, thereby neglecting her “first role as a parent to protect that child.” In these circumstances, the court concluded that it could not treat | o,Nicholson differently than her co-defendant and sentenced her to five years at hard labor and ordered her registration as a sex offender upon release.

Nicholson orally objected to the sentence on the grounds that there was evidence of “some threat of violence” against her “that may have impacted her.” The court found no merit to the objection and this appeal by Nicholson ensued.

Discussion

In her sole assignment of error, Nicholson contends that her 5-year sentence is excessive because her behavior was not as egregious as that of her husband, who also threatened her. The maximum sentence for the crime of indecent behavior with a juvenile is seven years. La. R.S. 14:81.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 10-2853 (La.11/18/11), 75 So.3d 454. The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), pri- or criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); Dillard, supra.

14Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.

The record shows adequate La.C.Cr.P. art. 894.1 compliance by the trial court. Consideration of Nicholson’s family history, social history, criminal history, the nature of the crime is evident on the record before us.

Likewise, the imposed sentence was not grossly out of proportion to the seriousness of the offense. Nicholson was informed that she faced maximum sentencing exposure of seven years’ imprisonment. She participated in perverse actions against her own child which undoubtedly caused physical, emotional and psychological harm. Her attempts to downplay and excuse her involvement demonstrate a continued disregard for the seriousness of her actions. In these circumstances, we cannot say that the upper range sentence is unconstitutionally excessive. Accordingly, we find no merit to Nicholson’s argument. Her conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Albertus CONNER, Jr., Appellant.
    No. 49,351-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles R. Scott, District Attorney, Janet L. Silvie, Cloyce C. Clark, III, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS & PITMAN, JJ.
   PITMAN, J.

| defendant Albertos Conner, Jr., was found guilty of possession of Schedule II CDS (cocaine), a violation of La. R.S. 40:967. He was sentenced to three years’ imprisonment at hard labor and fined $200. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

Defendant was arrested on August 22, 2013, during a reverse sting'operation performed by the Shreveport Police Department at 3010 Jackson Street in Shreveport, Louisiana. Defendant entered the house and expressed his desire to purchase a “shake pack” of crack cocaine. Undercover officers posing as drug dealers sold him two “shake packs,” each containing a rock of crack cocaine, for $13. When the hand-to-hand transaction was complete, 'the undercover officer gave the arrest signal, which, for this particular sting operation, was, “That’s some good stuff. Come back and holler at me.” Once the signal was given, the arrest team entered the room and arrested Defendant for possession of cocaine.

On September 11, 2013, the state filed a bill of information charging Defendant with one count of possession of Schedule II CDS, in violation of La. R.S. 40:967. The matter was tried before a jury on December 3, 2013.

The trial was initially scheduled for December 2, 2013. Defendant’s court-appointed counsel was prepared for trial that day. The transcript from the hearing, however, indicates that Defendant was dissatisfied with his court-appointed counsel, wanted to fire her and desired to represent himself. ^Defendant’s court-appointed counsel stated that Defendant had previously rejected a plea deal of 100 days’ imprisonment. Defendant explained that he believed his court-appointed counsel “left me in peril of a trial when there was no probable cause for me to be under arrest from August 22 to today. And that’s my reasoning for wanting to be rid of her.”

Following Defendant’s request to represent himself, a lengthy colloquy ensued. The trial court thoroughly questioned Defendant and explained his right to an attorney. It asked Defendant whether he had any legal training, and Defendant responded that he was taught by attorneys to research title and that he had successfully represented himself in a prior criminal matter. He also stated he understood that the charge against him was a felony charge. The trial court explained the possible verdicts of possession of Schedule II CDS (cocaine), attempted possession of Schedule II CDS (cocaine) and not guilty and the sentencing ranges for each of those verdicts. He was further warned that the district attorney could decide to charge him as a habitual offender.

The trial court also explained to Defendant the basic trial procedures and that it could not provide any assistance to him from the bench during trial. It further noted that the rules governing procedure and evidence were to be applied equally and there would be no prejudice in favor of, or against, either him or the state.

The trial court expressed its opinion that a licensed attorney would provide better representation than Defendant’s self-representation, and Defendant responded that he did not have any faith in his attorneys. | (¡Defendant agreed to allow the trial court to appoint standby counsel to serve and answer any questions he might have.

The trial court then asked Defendant if he wanted any witnesses subpoenaed, and Defendant answered that he wanted to call witnesses who could explain his “reason for being there” at the location of the drug operation. The trial court gave Defendant until noon that day to provide the necessary addresses to subpoena his witnesses. It also gave Defendant the compact disc containing the video surveillance from the undercover sting operation. The trial was to reconvene the next morning.

Prior to the trial beginning on December 3, 2013, Defendant’s standby counsel, Mr. Andes, made a motion to see the search warrant for 3010 Jackson Street to ensure that no illegal entry into the residence had taken place. The state objected, claiming that the search warrant for the premises did not relate to the possession of cocaine charge against Defendant.

Standby counsel made a motion to suppress evidence — the two rocks of cocaine— based on lack of a search warrant. Standby counsel also made a motion for a continuance. Copies of the search warrant for the 3010 Jackson Street location and supporting affidavits were filed into evidence. The state inquired about who was representing Defendant — whether he was representing himself or was being represented entirely by Mr. Andes. Mr. Andes answered, “He is representing himself. He is adopting the motions.” Defendant confirmed adopting the two motions.

| ¿The trial court denied the motion to suppress the evidence and the motion for a continuance, noting that it had signed the search warrant for 3010 Jackson Street. It stated that the warrant was supported by affidavits describing three separate drug buys at that location, that there was probable cause to search the residence and that the warrant was valid. The state objected to the search warrant being admitted into evidence, claiming it had nothing to do with Defendant’s possession of cocaine charge.

At trial, the state presented the testimony of Narcotics Agent Joel Sharpley, Shreveport Police Department. Agent Sharpley testified that a reverse sting operation is a tool used by the narcotics division after the police department has gathered intelligence from citizens, law enforcement officers and neighbors’ complaints that a residence is being used for the sale of illegal narcotics. Officers go undercover and use surveillance cameras while posing as drug dealers in order to take the persons purchasing narcotics into custody.

Agent Sharpley testified that, on August 22, 2013, he was assigned to the arrest and surveillance team at 3010 Jackson Street in Caddo Parish. He testified that he was in the living room of the home just outside the kitchen area. The surveillance cameras were set up to capture video of people entering through the back door. Defendant entered the residence through the back door, came into the kitchen, made contact with undercover narcotics Agent Stacey Coleman and-requested to purchase crack cocaine. Defendant was then provided the cocaine in exchange for $13, the arrest | fisignal was given and he was placed into custody. The cocaine Defendant purchased and the cash he used were submitted into evidence.

Agent Coleman testified that he set up the drug shop in the kitchen, where Defendant entered the residence and advised him that he wanted a “shake pack.” Agent Coleman showed Defendant the rocks of cocaine, whereupon Defendant stated that “the last time that he purchased from the residence, they were a lot bigger.” Agent Coleman further testified that, after the hand-to-hand transaction took place, he gave the arrest signal and Defendant was taken into custody. The state submitted as evidence the surveillance video of the transaction taking place between Agent Coleman and Defendant.

On cross-examination, Defendant questioned Agent Coleman regarding the hand-to-hand transaction and whether he actually possessed the cocaine, claiming that the video footage is unclear as to whether he had the cocaine in his hand prior to his arrest. It was Agent Coleman’s testimony, however, that he did hand the cocaine to Defendant.

Bruce Stentz, a forensic chemist from the Northwest Louisiana Crime Lab in Shreveport, analyzed ■ the substance that Defendant purchased during the reverse sting operation and testified that it was crack cocaine.

Defendant called Quentin Ransburg to testify on his behalf. Mr. Ransburg testified that he and Defendant did carpentry work together three or four times a week and that Defendant would often go to the residence at 3010 Jackson Street at approximately 7:00 a.m. to pick him up for work. He testified that he would be at the Jackson Street residence |fibecause his friend, Jacolby Gaspard, was homeless and stayed there. He further testified that Defendant’s likely reason for going to the residence was to pick up him and Gaspard for work, not to purchase cocaine.

Defendant testified on his own behalf and denied that he was at the house to purchase cocaine. He admitted entering the house to look for his friend, but noticed something was “out of kilter.” He stated that he saw Agent Coleman and bags (of cocaine) on a plate by the door and that he spoke to Agent Coleman, asking who he was and where were Mr. Gaspard and Mr. Ransburg. Defendant testified that he never attempted to buy any cocaine from Agent Coleman. He stated that he did not leave the house as soon as he saw the bags on the table because he could tell something was wrong and he wanted to “gather information.”

The jury returned a verdict of guilty as charged of possession of Schedule II CDS (cocaine). Defendant filed motions for post-verdict judgment of acquittal and for new trial, both of which were denied. He was sentenced on December 5, 2013, to three years’ imprisonment at hard labor and fined $200. In articulating reasons for the sentence imposed, the trial court noted Defendant’s competency to stand trial:

I don’t think there is any question that you are competent to stand trial, and frankly you did a good job in your defense. You did a great job in cross-examining the witnesses. So I don’t want there to be any mistake on the record that I think you have got issues to where you are not competent to stand trial, can’t assist in your own defense. You definitely know what is going on. You definitely know how to prepare your case, which you did, definitely, assisted with your standby counsel, and frankly you did a great job cross-examining the witnesses in this case.

The trial court also noted that Defendant had mental health issues. In [7addition to his sentence, Defendant was ordered to complete a rehabilitation program and address his mental health issues while incarcerated. Defendant now appeals.

DISCUSSION

La. R.S. 40:967 provides that a person convicted of the crime of possession of a controlled dangerous substance classified in Schedule II, including cocaine, may be sentenced to imprisonment, with or without hard labor, for not more than five years, and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

Waiver of representation

In appellate counsel’s brief, Defendant argues that the trial court erred when it allowed him to represent himself at trial, contending that, in order to establish a valid waiver of the right to counsel at trial, there must be a sufficient inquiry by the court to establish on the record a knowing and intelligent waiver under the overall circumstances. He asserts that the trial court should have performed further inquiry and evaluation of the circumstances in this case and should have declined his request to represent himself.

The state argues that the record in this case, as supplemented by the transcript, of the hearing containing a colloquy between the trial court and Defendant, contains ample proof that Defendant was warned of the dangers of self-representation and made a knowing and voluntary choice to represent himself.

|sU.S. Constitutional Amendments VI and XIV, as well as La. Const. Art. I, § 13, guarantee the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Carpenter, 390 So.2d 1296 (La.1980); State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156; State v. Flanagan, 32,535 (La.App.2d Cir.10/29/99), 744 So.2d 718. The right to counsel may be waived, but the accused must know of the right and intentionally relinquish the right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A waiver of counsel, in order that an accused may enter into pro se representation, must be clear and unequivocal. Id.; State v. Hegwood, 345 So.2d 1179 (La.1977). In order to be valid, a waiver of the right to counsel by a defendant must be made knowingly, understandingly and intelligently. Faretta, supra. Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Faretta, supra, citing Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942).

Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether the defendant has waived his right to counsel. State v. Carpenter, supra; State v. Turner, 37,162 (La.App.2d Cir.10/29/03), 859 So.2d 911, writ denied, 03-3400 (La.3/26/04), 871 So.2d 347; State v. Flanagan, supra. The determination of whether a defendant knowingly and voluntarily waived his right to counsel depends on the facts and circumstances surrounding the case, including the background, experience and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980).

The adequacy of a defendant’s self-representation and legal competence are not determinative of a valid waiver of counsel. State v. Kennon, 588 So.2d 1348 (La.App. 2d Cir.1991), writ denied, 600 So.2d 634 (La.1992); State v. Held, 32,610 (La.App.2d Cir.12/10/99), 748 So.2d 608. The propriety of allowing a defendant to make this election shall not be judged by what happens in the subsequent course of that representation. Rather, it is the record made in recognizing the waiver that controls. State v. Strain, 585 So.2d 540 (La.1991); State v. Drumgole, 31,294 (La.App.2d Cir.10/28/98), 721 So.2d 956.

A proper Faretta inquiry is required to permit a defendant to proceed, partially in pro se representation, with the assistance of standby counsel. A defendant does not have a constitutional right to hybrid representation. A trial court has the discretion to allow a defendant to act as his own cocounsel. State v. Mathieu, 10-2421 (La.7/1/11), 68 So.3d 1015.

On the day that Defendant’s trial was originally scheduled, the trial court conducted an adequate Faretta colloquy and determined that his waiver of the right to counsel was knowing and voluntary. Defendant |lflclearly expressed his desire to fire his appointed counsel and represent himself at trial.

Following this request by Defendant, the trial court thoroughly questioned him about his understanding of his right to counsel, his personal legal knowledge, the charges brought against him and the possible penalties and his status as a habitual felony offender. Defendant informed the trial court that he had associated with attorneys on occasion and had successfully represented himself at trial in a previous criminal matter. The trial court advised him that he would be “on his own” if he decided to proceed without counsel and that he could not receive assistance from the bench. It once again called to his attention the possible penalties that could be imposed. The trial court then provided Defendant with the option to have standby counsel, which Defendant accepted. The trial was postponed for one day, giving Defendant the opportunity to subpoena witnesses on his behalf.

Following the Faretta colloquy, the trial court honored Defendant’s request to represent himself, determining that he made a completely voluntary and intelligent waiver of his right to counsel with a sufficient understanding of all the consequences of self-representation.

This assignment, therefore, is without merit.

Ineffective assistance of counsel

In his pro se brief, Defendant argues that he had ineffective assistance of counsel in that, prior to trial, his court-appointed counsel “left me in peril of a trial.” He also asserts that his court-appointed counsel waived his 48-hour probable-cause hearing in violation of his constitutional rights.

lnThe right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by U.S. Constitutional Amendment VI. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, to establish that his attorney was ineffective, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, supra; State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense and that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

| 12As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. Jordan, supra. Because the record in this case is sufficient to adequately resolve the issue of the effectiveness of Defendant’s counsel and, in the interest of judicial economy, we will address Defendant’s claims on appeal.

The record in this case does not indicate that even the first prong of Strickland was met. There is no indication that Defendant’s court-appointed counsel’s performance prior to Defendant’s decision to proceed pro se was in any way deficient. Defendant’s statements are general and conclusory, and he cites no specific act or omission by his attorney that constituted legal error. His reasons for firing his appointed counsel were not based on legal arguments upon which relief could be granted.

Therefore, this assignment of error is without merit.

Lack of probable cause

Defendant has raised several assignments of error pertaining to the officers’ lack of probable cause to arrest him. He argues that the search warrant authorizing the reverse sting operation did not establish probable cause as to his arrest because the information contained in the search warrant and the supporting affidavits did not specify his person or the drugs purchased.

1^Probable cause for an arrest exists when facts and circumstances known to the officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in the belief that the person to be arrested has committed a crime. State v. Wilson, 467 So.2d 503 (La.1985); State v. White, 543 So.2d 124 (La.App. 2d Cir.1989).

The measure of probable cause to arrest is not that a police officer has proof sufficient to convict. Probable cause is determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer for which he might draw conclusions warranted by his training and experience. State v. Johnson, 422 So.2d 1125 (La.1982).

Despite efforts by his court-appointed counsel and by the trial court to explain the distinction between the probable cause necessary to issue the search warrant to perform the reverse sting operation, and the probable cause needed to arrest him for the crime of possession of cocaine, Defendant failed to understand this point of law. The warrant issued to the officers gave them the authority to implement the reverse sting operation at 3010 Jackson Street. It was Defendant’s own actions which gave them probable cause to arrest him for the crime of possession of cocaine.

Defendant entered the house, asked to buy the cocaine, gave the officers $13 and took possession of the cocaine, thus establishing the probable cause necessary for his arrest. The facts and circumstances known to the undercover officers were sufficient to justify a man of ordinary 114caution in the belief that Defendant had committed the crime of possession of cocaine.

These assignments of error are, therefore, without merit.

Lack of mental capacity to stand trial

In a supplement to his pro se brief, Defendant argues that he was suffering from a nervous breakdown at the time he committed the offense up until the date of his trial and, therefore, was not mentally competent to stand trial.

When a defendant is tried upon a plea of “not guilty,” evidence of insanity or mental defect at the time of the offense shall not be admissible. In the absence of a special plea of insanity, evidence of insanity or mental defect is not admissible. La. C. Cr. P. art. 651. A new basis for an objection cannot be raised for the first time on appeal. La. C. Cr. P. art. 841; State v. Cressy, 440 So.2d 141 (La.1983); State v. Sims, 40,300 (La.App.2d Cir.10/26/05), 914 So.2d 594.

Defendant did not plead not guilty by reason of insanity, and, his mental competency was never an issue. The trial court noted that Defendant was definitely competent to stand trial and, in fact, was allowed to represent himself. Although the trial court noted at sentencing that Defendant had some mental health issues, it also noted that Defendant had done a good job in representing himself.

This assignment of error is without merit.

| is Wrongful or Malicious Prosecution

Defendant argues that the district attorney failed to screen cases properly and that the public defender “joined into concert to discipline alleged law breakers without attempting to secure their rights.” He failed to brief these assignments of error.

A mere statement of an’ assignment of error in a brief does not constitute briefing of the assignment and the assignment is deemed abandoned. State v. Lee, 39,969 (La.App.2d Cir.8/17/05), 909 So.2d 672, writ denied, 06-0247 (La.9/1/06), 936 So.2d 195.

These unbriefed assignments of error are deemed abandoned.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Albertus Conner, Jr., are affirmed.

AFFIRMED.

      . The reverse sting operation was performed at the location pursuant to a valid search warrant of the premises.. The affidavit in support of the search warrant contained information about three separate drug buys at the location.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Sandy SMITH, Jr., Appellant.
    No. 49,356-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.
    Rehearing Denied Jan. 8, 2015.

      Teresa Culpepper Carroll, Louisiana Appellate Project, Jonesboro, for Appellant.
    Sandy Smith, Jr., Pro se.
    Charles .Rex Scott, District Attorney, Jason Brown, Tommy Johnson, Assistant District Attorneys, for Appellee.
    Before MOORE, PITMAN and GARRETT, JJ.
   GARRETT, J.

_|jThe defendant, Sandy Smith, Jr., was charged with three counts of possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A)(1); two counts of illegal carrying of weapons while in possession of controlled dangerous substances (CDS), in violation of La. R.S. 14:95(E); and one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. He subsequently entered a Crosby plea, pleading guilty to the charge of possession of a firearm by a convicted felon and two counts of possession of marijuana with intent to distribute, while reserving the right to appeal the denial of his motions to suppress. The other charges were dismissed, and the state agreed not to file a habitual offender bill. On the firearm charge, the defendant was sentenced to 15 years at hard labor, the first 10 years without benefit of parole, probation, or suspension of sentence, and a $5,000 fine. On each of the drug charges, he was sentenced to 30 years at hard labor, plus a $5,000 fine. All sentences were ordered to be served concurrently. The defendant appealed. We affirm the defendant’s convictions and sentences.

FACTS

As the result of a citizen complaint, the Shreveport police department initiated an investigation of drug sales at a house located at 3222 Marjorie Street. On February 2, 2012, a confidential informer (Cl) was sent to the residence. According to Agent Keith Knox, the Cl was given buy funds and |2fitted with a listening device. The Cl reported that he was sold marijuana by a black male at the residence who called himself “Smitty.” A field test of the substance was positive for marijuana.

Based upon information pertaining to this transaction, the officers were able to secure a search warrant for the Marjorie Street house, which was executed on February 3, 2012. Although no one was present when the officers arrived, the lights and television were on, and a lit marijuana cigarette was found in an ashtray in the kitchen. Also discovered in the kitchen were 2,000 grams of marijuana, digital scales, and packaging materials. (Although pills suspected to be ecstasy were discovered, subsequent lab testing did not find CDS in the sample pills tested.) In a bedroom, the officers found 27 grams of marijuana, a 12-gauge pump shotgun, and a loaded .40-caliber handgun. Lying on top of a bedroom dresser near the marijuana and the handgun were two pawn tickets and legal documents from a federal lawsuit by “Sandy Smith, Jr.” against the Caddo Parish sheriff. One of the pawn tickets was for “Smith, Sandy Jr.” and contained a birth date which matched that given for the defendant in multiple documents in the appellate record. The other pawn ticket was for “Smith, Sandy” and was a renewal of the first ticket with a new maturity date. Both the legal documents and the pawn ticket for “Smith, Sandy Jr.” provided an address for Smith at 3157 Edson Street in Shreveport. Also found were photos which included the defendant.

lsOn February 10, 2012, Agent Knox obtained an arrest warrant for the defendant based upon the evidence recovered at the Marjorie Street house. Reference was made in the supporting affidavit to the defendant’s extensive arrest record, which included violent offenses and narcotics violations.

On February 24, 2012, a search warrant was obtained for the Edson Street house. The supporting affidavit by Agent Knox recited the case history of the controlled buy and the search warrant executed at the Marjorie Street house. On that same day, the defendant was observed leaving the Edson Street house with a large cardboard box, which he placed in his car. After he drove away from the residence, a K-9 officer was directed to conduct a traffic stop of the defendant away from the Edson Street residence; this was done due to safety concerns arising from the presence of the firearms at the Marjorie Street house. However, no traffic violations were observed, and the K-9 officer proceeded to execute the outstanding arrest warrant. The K-9 officer caught up to the defendant’s vehicle as it turned into a gas station. In an effort to avoid a dangerous confrontation, the K-9 officer approached the defendant at the gas pump as though conducting a traffic stop. The K-9 officer then executed the arrest warrant and took the defendant into custody. The defendant was handcuffed and placed in a police vehicle. Minutes later, the K-9 officer’s dog, Mico, was walked around the defendant’s car and alerted on the driver’s door. Mico then entered the car and alerted on the box the defendant had earlier placed |4in the backseat. A search revealed that the cardboard box contained 14½ pounds of packaged marijuana. Cash in the amount of $895 was found on the defendant’s person, and $400 was found in the backseat of the car.

The defendant and his car were initially taken to a nearby fire station being used as a staging area by the narcotics agents. He and the car were later transported to the Edson Street house. During the execution of the search warrant for the house, officers discovered 222 grams of marijuana hidden under the bed in the master bedroom. They also recovered a .380 handgun with ammunition and a Taurus .357 magnum handgun loaded with hollow-point bullets.

The defendant was ultimately charged with three counts of possession of marijuana with intent to distribute, two counts of illegal carrying of weapons while in possession of CDS, and one count of possession of a firearm by a convicted felon.

In May 2012, the defendant, who was represented by retained counsel, filed a motion to suppress. He argued that since his car was searched without his permission or a search warrant, all evidence seized from his car should be suppressed. In a supplemental motion to suppress filed in July 2012, the defendant alleged that the agent who swore out the affidavit for the arrest warrant made intentional false statements in the affidavit which prejudiced the court and led to the issuance of the arrest warrant. Therefore, he asserted that the court should suppress all evidence obtained after his arrest and dismiss the charges against him.

|sOn September 5, 2012, a lengthy hearing was held on the motions to suppress. The state presented the testimony of Agent Knox and Corporal Christopher W. Yarbrough, the K-9 officer. Agent Knox was extensively cross-examined on a number of issues. Additionally, Corporal Yar-brough testified in detail as to his dog’s training, certification, and reliability.

On September 11, 2012, the hearing resumed, and documents discovered at the Marjorie Street house were filed into evidence. On that same date, the trial court denied the motions to suppress after providing detailed oral reasons for ruling. As to the defendant’s contention that Agent Knox intentionally made false statements in his affidavit supporting the arrest warrant, the trial court specifically found the agent to be credible and, after reviewing the defendant’s rap sheet, concluded that there was no actual misrepresentation of the defendant’s criminal history. As the judge who signed the arrest warrant, the trial judge staged that he had not relied on the criminal history information anyway. As to the search of the defendant’s vehicle, the trial court noted that it had reviewed the entire dashcam video of the arrest and the K-9 search of the car. It found that the police had probable cause to search the car once the K-9 officer’s dog alerted on it.

On October 23, 2012, the trial court revisited the motions to suppress after the defendant raised questions about the buy money used in the drug transaction with the CL Agent Knox testified that the buy money was never recovered after the sale, something which he said was “very common.” The trial court maintained its ruling denying the motions to suppress.

IfiOn October 24, 2012, the defendant chose to represent himself with assistance of standby counsel appointed by the court. On December 4, 2012, the day his trial was scheduled to begin, the defendant appeared in court and entered a Crosby plea whereby he reserved the right to appeal the denial of his motions to suppress. He pled guilty to the charge of possession of a firearm by a convicted felon and two counts of possession of marijuana with intent to distribute; all other charges were dismissed. Additionally, the state agreed not to file a habitual offender bill of information against the defendant. The defendant’s wife, who had been charged with two offenses related to the guns and drugs found at the Edson Street house, was offered probation. On the firearm charge, the defendant was sentenced to 15 years at hard labor, the first 10 years without benefit of parole, probation, or suspension of sentence, and a $5,000 fine. On each of the drug charges, he was sentenced to 30 years at hard labor, plus a $5,000 fine. The trial court gave him credit for time served and directed that all sentences be served concurrently.

The defendant appealed.

ISSUES ON APPEAL

Appellate counsel asserted one assignment of error challenging the denial of the motions to suppress. Additionally, the defendant filed eight pro se assignments of error, but enumerated 11 arguments in his pro se brief. These arguments are disorganized and frequently repetitive. We have grouped these assignments and arguments to allow concise discussion of the issues raised. Those which address the issues raised in the motions to |7suppress will be considered alongside the arguments made by appellate counsel.

A plea of guilty normally waives all nonjurisdictional defects in the proceedings prior to the plea. See State v. Crosby, supra; State v. Watson, 37,090 (La.App.2d Cir.5/14/03), 847 So.2d 95. Because the defendant’s Crosby plea reserved only the right to appeal the denial of the motions to suppress, the issues in many of the defendant’s pro se assignments of error were waived by the plea and cannot be considered by this court. These include his complaints which essentially pertain to the weight of the state’s case against him.

In several pro se assignments and arguments, the defendant complains about the trial court’s refusal to disclose the Cl’s identity, a request made in a pro se motion to compel. The Crosby plea reserved only the right to appeal the denial of the motion to suppress. Therefore, this issue was not preserved for appeal. However, even assuming arguendo that the issue was preserved, we find that the defendant failed to show exceptional circumstances which would require divulging the Cl’s identity. State v. Watson, 47,980 (La.App.2d Cir.5/15/13), 135 So.3d 693, writs denied, 2013-1676 (La.2/7/14), 131 So.3d 856, and 2013-1788 (La.2/7/14), 131 So.3d 862.

In other pro se assignments of error and arguments, the defendant attacks the affidavits in support of the search warrants. These issues were not raised in the defendant’s motions to suppress. Therefore, the search warrants are not before us now. Nor are his complaints about the lack of 18“chain of custody” for the buy funds from the Cl transaction, an offense for which he was not even charged. See and compare State v. Cummings, 2007-1304 (La.App. 3d Cir.4/30/08), 983 So.2d 246, writ denied, 2008-1187 (La.2/20/09), 1 So.3d 489. However, even assuming arguendo that these claims were before us, we find that they are without merit. The Cl’s purchase of drugs at the Marjorie Street house provided probable cause for issuing a search warrant of that house. The documents with the defendant’s name and Edson Street address discovered during the execution of the Marjorie Street search warrant provided ample probable cause for the issuance of the search warrant for the Edson Street house. Furthermore, as noted above, the chain of custody for the buy money was never at issue because the defendant was not charged with any offense arising from that transaction and the buy money was never recovered.

MOTIONS TO SUPPRESS

The defendant’s motions to suppress presented two narrow issues to the trial court: (1) whether the agent’s affidavit in support of the arrest warrant contained intentional false statements which prejudiced the court and led to the issuance of the arrest warrant, and (2) whether the search of his car was valid. Only these issues were preserved for appeal by the Crosby plea.

This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to ^findings of law. State v. Freeman, 44,980 (La.App.2d Cir.1/27/10), 33 So.3d 222, writ denied, 2010-0535 (La.10/1/10), 45 So.3d 1094.

Arrest Warrant Affidavit

In relevant part, La. C. Cr. P. art. 202 states:

A. A warrant of arrest may be issued by any magistrate pursuant to this Paragraph or as provided in Paragraph D of this Article and, except where a summons is issued under Article 209, shall be issued when all of the following occur:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any....
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonably trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed a crime. State v. Williams, 448 So.2d 659 (La.1984); State v. Brown, 47,247 (La.App.2d Cir.9/26/12), 105 So.3d 734. Minor inaccuracies in assertions in the affidavit may not affect the validity of the warrant. However, if intentional misrepresentations designed to deceive the issuing magistrate are made by the affiant seeking to obtain the warrant, the warrant must be quashed. Alternatively, if unintentional misstatements are included, these misstatements must be excised and the remainder used to determine if probable cause for the issuance of a warrant 'is set forth. Similarly, when the affiant omits material facts without intent to deceive, the reviewing court | inmust add the omitted facts to those originally included and retest the sufficiency of the showing of probable cause. State v. Williams, supra; State v. Peterson, 2003-1806 (La.App. 1st Cir.12/31/03), 868 So.2d 786, writ denied, 2004-0317 (La.9/3/04), 882 So.2d 606. The term “intentional” means a deliberate act made for the purpose of deceiving the magistrate. State v. Rey, 351 So.2d 489, 492 n. 1 (La.1977); State v. Peterson, supra.

At the hearing on the defendant’s motions to suppress, Agent Knox testified that the investigation which led to the defendant’s arrest was initiated as the re-suit of a citizen complaint that a “Sandy Smith” who resided at the Marjorie Street house was allegedly selling narcotics from that residence. Agent Knox sent a Cl to make a controlled buy at the residence; the Cl told him that the person who sold drugs to him identified himself as Smitty. During the execution of the search warrant at the Marjorie Street house, documents with the name Sandy Smith were found. Agent Knox testified that he reviewed the defendant’s rap sheet. It showed a variety of arrests since 1998, which included the following: 1998, possession of drug paraphernalia; 1994, armed robbery; 1995, simple battery; 1997, possession of marijuana and illegal use of firearm; 1999, federal fugitive warrant; 2007, attempted second degree murder; 2009, I,,federal fugitive warrant. However, the rap sheet does not include dispositions on many of these arrests.

Based on all this information, Agent Knox executed an affidavit in support of an arrest warrant for the defendant on multiple drug and weapons charges. It stated, in relevant part:

The Affiant is a trained and experienced investigator with the Shreveport Police Department. The Affiant is currently assigned to the Caddo/Shreveport Narcotics Task Force-Mid Level Investigative Unit (M.L.I.U.) The Affiant has been employed with the Shreveport Police Department for the past 13 years. Through personal investigation along with the investigations by other members of M.L.I.U. the following information was learned:
On February 3rd, 2012 a narcotics search warrant was executed at 3222 Marjorie in Shreveport, -Louisiana and within Caddo Parish following a short term narcotics investigation. The Cad-do/Shreveport Narcotics Unit received a complaint that a Sandy Smith, Jr. was selling marijuana from the residence at 3222 Marjorie Street. A controlled purchase of marijuana was made and Sandy Smith Jr. DOB of 09/12/1975 was identified as the occupant of the residence and a suspect in the distribution of CDS. It was also learned that Sandy Smith Jr. had a violent criminal history to include 2nd degree murder, armed robbery and several narcotics violations (one to include illegal carrying of a firearm).
Upon the execution of the warrant the two bedroom residence was unoccupied, however the lights and T.V. were on and a marijuana cigarette was burning in an ashtray on the kitchen table. Agents seized approximately 2,000 grams of suspect marijuana, 118.5 suspected ecstasy (MDMA) tablets, a .40 caliber hand gun and a 12 gauge pump shotgun. The majority of the suspected marijuana was in plain view on the kitchen table along with several digital scales and packaging material. The ecstasy (MDMA) was also located on the kitchen table and was packaged for distribution. The 12 gauge shotgun was located propped up just inside the bedroom door and the .40 caliber semi-auto handgun (which was loaded) was lying on the dresser in the bedroom next to approximately 27 grams of marijuana and documents to include legal documentation addressed to Sandy Smith Jr. The residence was a two bedroom structure with a kitchen, living room and a single bathroom. Only one of the bedrooms appeared to be in use as the other was cluttered as if a storage area and had no clothing. The suspected marijuana field 112tested positive for the presence of marijuana and was sent to the Northwest Regional Crime Laboratory along with the suspected MDMA tablets for further chemical testing. The .40 Caliber handgun was submitted to Shreveport Police Crime Scene Division to be printed for latent prints. [Emphasis added.]

On cross-examination at the motion to suppress, Agent Knox admitted that he did not personally see the defendant at the Marjorie Street house on February 2 or 3, that there was no audio recording of the Cl transaction, and that he did not show the Cl a photo lineup after that transaction. He also stated that even though the Cl told him that the person he dealt with called himself Smitty, he did not include that in the warrant applications. Agent Knox testified that he stated in the arrest warrant that the defendant was identified as the seller because of the documents recovered from the Marjorie Street house. The agent further indicated that, even if the defendant was only arrested — but not convicted — for second degree murder and armed robbery, he believed his statement about the defendant having a violent criminal history was accurate.

In denying the defendant’s motion to suppress, the trial court specifically found Agent Knox to be a credible witness. After reviewing the defendant’s rap sheet, the trial court found no actual misrepresentation of the defendant’s criminal history in the affidavit for the arrest warrant and, if there was any misrepresentation, it was not intentional.

Our review of the arrest warrant affidavit reveals that it provided the issuing judge with probable cause that the defendant was the person selling marijuana from the Marjorie Street residence. First, the affidavit informed the judge that a citizen had notified the police that a “Sandy Smith” was | ^dealing drugs from the Marjorie Street home. Although that information was not included in the affidavit for the search warrant for that house, the information about the perpetrator’s identity was not essential to secure a search warrant for Marjorie Street. However, it was clearly relevant to the arrest warrant for the defendant. Second, the results of the search of the Marjorie Street home provided another connection between the defendant and that home and the contraband found therein. Specifically, legal documents and pawn tickets bearing the defendant’s name were found on a bedroom dresser next to a quantity of marijuana and a loaded gun. The burning marijuana cigarette and the quantities of marijuana discovered during the search strongly suggested that the home’s occupant had very recently vacated the premises without time to gather his effects. Finally, the affidavit in support of the arrest warrant further stated that only one bedroom appeared to be occupied; the other bedroom was being used as a storage area and had no clothing. The papers identifying the defendant were found in the occupied bedroom. Since the other items found in the house included weapons and a substantial quantity of marijuana along with packaging materials, the reasonable inference to be drawn is that the defendant was the person using the home as a “trap house” for the distribution of drugs.

The least accurate information in the affidavit was that pertaining to the defendant’s criminal history. Of particular note, the affidavit stated that this criminal history included a charge of second degree murder. The rap sheet introduced at the hearing is unclear as to whether the defendant was |14arrested for second degree murder or attempted second degree murder. However, given the combination of the tip and the discovery of the defendant’s personal documents in the house, the criminal history information is of little to no relevance. Retesting the affidavit after the excision of the defendant’s criminal history still leads to a finding of probable cause.

Based on the foregoing, we find that the warrant issued for the defendant’s arrest was valid and that the police were authorized to stop and arrest the defendant pursuant to it.

Vehicle Search

Next, we consider whether the warrant-less search of the defendant’s car was valid.

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Williams, 46,674 (La.App.2d Cir.12/14/11), 81 So.3d 220.

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and by Article I, § 5 of the 1974 Louisiana Constitution. Security from “unreasonable” government intrusion is the ability to exclude the government. Our analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, 115without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); State v. Allen, 48,324 (La.App.2d Cir.6/26/13), 118 So.3d 514, writ denied, 2013-2086 (La.3/21/14), 135 So.3d 616, cert. denied, — U.S. -, 134 S.Ct. 2710, 189 L.Ed.2d 951 (2014).

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Arizona v. Gant, supra.

A canine sniff test by a well-trained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Freeman, supra. Once the dog alerts on the door panels, the officers have probable cause to search a vehicle without first obtaining a warrant. State v. Freeman, supra. The Fourth Amendment allows police to hfiSearch a vehicle absent a warrant if a car is readily mobile and probable cause exists to believe it contains contraband. State v. Lee, 46,742 (La.App.2d Cir.12/14/11), 79 So.3d 1278; State v. Lopez, 2000-0562 (La.10/30/00), 772 So.2d 90. A warrantless search of a vehicle is not unreasonable if there is probable cause to justify the search, without proving any additional exigency, when the vehicle is readily mobile because there is an inherent risk of losing evidence. State v. Freeman, supra; State v. Bass, 45,298 (La.App.2d Cir.8/11/10), 47 So.3d 541, writ denied, 2010-2405 (La.2/25/11), 58 So.3d 457.

In this case, the defendant was arrested pursuant to a valid arrest warrant which charged him with numerous drug and weapons offenses. Within minutes of the defendant’s arrest, Mico alerted on the driver’s door of the defendant’s vehicle, which was parked in a public place and readily mobile. According to the testimony of his handler, Mico was trained to alert on a variety of drugs, was nationally certified, and had proven reliable in the field. After Mico alerted, the police had probable cause to search the vehicle for evidence and it was reasonable to believe the vehicle contained contraband and evidence of a crime. The arrest, Mico’s alert, and the ensuing search were recorded on Corporal Yarbrough’s dashcam; a recording of these events was admitted into evidence at the hearing and reviewed by the trial court and this court. This recording corroborated I^Corporal Yarbrough’s testimony concerning the arrest and the search of the defendant’s vehicle at the gas station.

Based on the foregoing, we find that the search of the defendant’s vehicle, which occurred immediately following his arrest and after a police dog trained to detect illegal drugs alerted on the driver’s door, was valid. The defendant’s assignments of error and arguments to the contrary are without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In a pro se assignment, the defendant contended that his counsel was ineffective in a variety of ways. In particular, he claimed that his lawyer failed to properly challenge the arrest warrant and its supporting affidavit, as well as the search warrants and their supporting affidavits.

The test for effectiveness of counsel is two-pronged. First, a defendant must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment to the U.S. Constitution. Second, he must show that the deficient performance prejudiced the defense by establishing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A-reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised | ^reasonable professional judgment. State v. Moore, 48,769 (La.App.2d Cir.2/26/14), 134 So.3d 1265.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Cook, 48,355 (La.App.2d Cir.11/20/13), 127 So.3d 992, writ denied, 2013-3000 (La.5/30/14), 140 So.3d 1174. However, when the record is sufficient, an appellate court may resolve this issue on direct appeal in the interest of judicial economy. State v. Cook, supra.

A review of the appellate record shows that the defendant’s retained counsel vigorously and zealously litigated the defendant’s motions to suppress, which challenged the arrest warrant and its supporting affidavit. The trial court strongly commended defense counsel’s performance, and we find that this praise was well deserved.

The defendant additionally contends that his counsel failed to properly challenge the search warrants and their supporting affidavits, as well as the denial of production of the Cl. Out of an abundance of caution, the defendant’s claims pertaining to the search warrants and the Cl’s identify were addressed supra and found to be merit-less. The defendant has failed to show how he was prejudiced by counsel’s decision not to pursue these meritless claims.

The defendant also makes a fleeting reference to his Crosby plea in his ineffective representation claims. However, as it was not actually |19briefed, any ineffective counsel complaint related to the plea is deemed abandoned. U.R.C.A. Rule 2-12.4; State v. Dewey, 408 So.2d 1255 (La.1982); State v. Serova, 46,176 (La.App.2d Cir.4/13/11), 60 So.3d 723. Furthermore, after the defendant’s retained counsel withdrew in October 2012, the defendant chose to represent himself with an attorney from the Indigent Defender Office as standby counsel. A defendant who chooses to represent himself may not complain on appeal that his self-representation was inadequate. State v. Bell, 2009-0199 (La.11/30/10), 53 So.3d 437, cert. denied, - U.S. -, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011); Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

Based upon the record before us, we find no basis for finding that counsel was ineffective in his representation of the defendant.

This assignment of error lacks merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before CARAWAY, MOORE, LOLLEY, PITMAN and GARRETT, JJ.

Rehearing denied.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Apparendy, there was no recording.

      . The charges were: (1) possession of marijuana, second offense; (2) possession of marijuana with intent to distribute; (3) possession of MDMA with intent to distribute; (4) possession of CDS with a firearm; (5) possession of firearm by a convicted felon. None of these charges arose from the controlled buy by the Cl on February 2, 2012, at the Marjorie Street house.

      . The defendant had a 1999 federal conviction for cocaine distribution for which he was sentenced to 60 months.

      . Although the copy of the defendant's rap sheet admitted at the hearing is apparently missing a page, the record indicates that this charge led to the defendant’s 2008 guilty plea to attempted possession of firearm by a convicted felon.

      . After the hearings were held in this case, the United States Supreme Court rendered Florida v. Harris, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013). Although the precise issue before the Court dealt with evi-dentiary matters involving dog alerts, it reiterated that dog alerts can establish probable cause:
      In short, a probable-cause hearing focusing on a dog's alert shpuld proceed much like any other. The court should allow the parties to make their best case, consistent with the usuál rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast,' the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.

      . The defendant contends that the trial court erred in finding that Mico was reliable. The trial court obviously accepted the unrefuted testimony of Corporal Yarbrough. We find no manifest error in this factual finding.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Erik MACK, Jr., Appellant.
    No. 49,376-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Louisiana Appellate Project by Edward John Marquet, Lafayette, for Appellant.
    Charles Rex Scott, II, District Attorney, William Jacob Edwards, Jason Trevor Brown, Jessica Diane Cassidy, Assistant District Attorneys, for Appellee.
    Before DREW, LOLLEY and PITMAN, JJ.

      .A record of text messages between Mack and Scott was admitted.

   DREW, J.

_jjErik Mack, Jr., was convicted of manslaughter and sentenced to serve 26 years at hard labor. He alleges that the trial court erred in allowing his grand jury testimony to be used at trial. He further claims that his sentence is excessive.

We affirm in all respects.

FACTS

On August 5, 2011, Timmy Knuckles was sitting in his truck on Hearne Avenue in Shreveport when he was rear-ended by a gold Impala driven by an injured Demario Scott, who was on the phone with 911. After Scott exited his vehicle, he collapsed on- the sidewalk. Knuckles observed a bloody chest wound. Two gunshot holes were visible in the driver’s side door of Scott’s vehicle.

James Lattier, a paramedic, responded and transported Scott to the hospital. Scott told Lattier several times, “Erik Mack shot me.”

At the hospital, Scott again implicated the defendant to Dr. Susan Lobrand. Scott had suffered severe internal injuries and died during emergency surgery.

Scott’s identification of the defendant as the man who shot him caused Shreveport Detective Joshua Mayfield and Sergeant Jody Jones to locate and interview him. The defendant waived his rights and admitted that:

• he and Scott were friends at one point, but that the two had suffered a falling out after he discovered that Scott had stolen his gun;

• Scott began sending the defendant threatening text messages;

[¾* he saw Scott on the day he was shot while defendant was driving down Hearne Avenue;

• Scott drove up next to his car and waved a dark-colored handgun at him;

• attempting to flee, he rammed the back of Scott’s car; and

• he denied having a gun with him or shooting at Scott.

The defendant was charged with second degree murder. The state filed notice of its intent to use his grand jury testimony at jury trial. The defendant objected to this notice, but his objection was overruled.

The Caddo Parish A.D.A. who presented the case at grand jury identified a waiver of rights signed by Mack and his attorney. The A.D.A. further identified a transcript and audio recording of Mack’s grand jury testimony. The audio was played for the jury. In the recording, the defendant testified that:

• Mack, Scott, and Scott’s wife attended Byrd High School together;

• after graduating from high school, Mack enlisted in the Army;

• in 2010, while stationed at Fort Bliss, he again crossed paths with Scott;

• the two men became friends;

• he would occasionally stay at Scott’s home;

• in May of 2011, the defendant and Scott’s relationship began to deteriorate after he accused Scott of stealing a gun from him;

• Scott denied taking the gun, but the defendant ended the friendship;

• he then started to receive threatening text messages from Scott;

[¾* the defendant got a final threatening text from Scott, saying he was going to track him down at work and he “hope[d] you have your gun on when I see you because if you don’t I feel sorry for you;”

• a few days later, the defendant was discharged from the Army;

• he moved back to Shreveport;

• on the date of the shooting, he passed Scott’s gold Impala on Hearne Avenue, with the cars traveling in opposite directions;

• Scott turned around and drove up to the right side of his car;

• the two were riding abreast when he saw Scott roll his window down and raise his right arm “as if he was going to fee on me, sir”;

• the defendant grabbed his .40-caliber Glock handgun and feed two shots through his passenger window and into Scott’s car; and

• he admitted falsely telling the police that he did not shoot at Scott.

Mack’s grand jury testimony does not square with the facts of this case.

Shreveport Police Department Corporal Hannah Clark testified that:

• Scott’s window was rolled up when Mack shot at Scott’s vehicle; and

• had the window been down, the bullets would have gone through the window.

Forensic pathologist Dr. James Traylor testified at trial that:

• Scott was not aiming a weapon at the defendant when he was shot; and

• the bullet entered Scott’s chest wall, exited his right side, and reentered his right wrist, indicating that, when shot, Scott was driving with his left hand on the steering wheel and his right hand on his arm rest.

The defendant was found guilty of the responsive crime of manslaughter.

14Months later, a sentencing hearing was conducted.

DISCUSSION

Use of Grand Jury Testimony at Jury Trial

The defendant argues that despite the state supreme court’s decision in State v. Poland, 2000-0453 (La.3/16/01), 782 So.2d 556, the trial court erred in allowing the admission of his grand jury testimony at his trial. The defendant cites Justice Kimball’s dissent in State v. Poland supra, and asks this court to reexamine whether the majority’s decision in that case was correct given the prohibition against the admission of such testimony in La. C. Cr. P. art. 433.

The state emphasizes that State v. Poland, supra, is still good law and the court’s application of the protection from the use of grand jury testimony was primarily designed for the protection of a non-target witness, not a target defendant who voluntarily testifies. The state further argues that, even without use of the grand jury testimony, the evidence of guilt was overwhelming.

In State v. Poland, supra, that defendant was arrested for second degree murder after admitting to police that he had killed his cousin, but claiming he did so in self-defense. A month later, Poland testified before a grand jury. Before Poland testified, he was advised that he was the target of the grand jury investigation, that he could consult with his lawyer and that | she had the right to remain silent. Poland waived his rights, told the grand jury his version of the events, and was subsequently indicted for second degree murder. During Poland’s trial, the state was permitted, over the defense’s objection, to play an audio recording of Poland’s grand jury testimony, which conflicted with the testimony of several of the state’s trial witnesses. As here, that petit jury convicted Poland of manslaughter.

On appeal, Poland argued that the trial court had erred in allowing the state to present his grand jury testimony at trial. This court, on original hearing, affirmed Poland’s conviction. However, on rehearing, we reversed his conviction and sentence, holding that Louisiana’s long-established practice of protecting the secrecy of grand jury proceedings, as provided in La. C. Cr. P. art. 434, prohibited the state from using the defendant’s grand jury testimony during his jury trial.

The state supreme court granted writs and reinstated Poland’s conviction and sentence. The court acknowledged the constitutional and statutory provisions relative to the secrecy of grand jury proceedings, but noted exceptions allowing testimonial disclosure. The court determined that the legislative mandate of secrecy in grand jury proceedings was “designed primarily for a non-target witness and are not significant when a target of the investigation voluntarily testifies before the grand jury with counsel present.” Id. at 559-560, citing State v. Revere, 232 La. 184, 94 So.2d 25 (La.1957), and In re Grand Jury, 1998-2277 (La.4/13/99), 737 So.2d 1. As such, the court concluded:

Here, defendant, while under criminal charges, knowingly and voluntarily waived his right to remain silent and not to | ^incriminate himself. Knowing he was the target of the investigation, he told the grand jury, without compulsion and with his attorney present, his version of the occurrence. Defendant took his chances of persuading the grand jury not to indict him, and he lost. Exclusion of the testimony that defendant intended to be exculpatory would serve absolutely no purpose associated with the secrecy of grand jury testimony or with the fairness of criminal proceedings.

Id. at 560-561.

When evidence is improperly admitted, it is subject to harmless-error analysis. State v. Oliphant, 2013-2973 (La.2/21/14), 133 So.3d 1255.

This case is factually similar to State v. Poland, supra, which we find to be controlling. Mack knew he was the subject of the grand jury investigation. Even so, with advice of counsel, he waived his right to remain- silent. His decision to tell the grand jury his version of the facts, in an attempt to convince the grand jury that he acted in self-defense, is the exact type of testimony that the court in State v. Poland, supra, found to “serve absolutely no purpose associated with the secrecy of grand jury testimony or with the fairness of criminal proceedings.”

Even assuming that the defendant’s grand jury testimony was improperly admitted, this alleged error is harmless, as the facts belie the defendant’s version of the shooting. There were two bullet holes in Scott’s car door. Scott told a paramedic and a physician that the defendant shot him. There was no evidence that Scott was armed. The evidence of guilt is overwhelming.

Excessiveness

The defendant contends that his sentence is excessive, considering his military service and lack of a criminal history. He argues that:

[7* the jury’s verdict of manslaughter indicates its belief that he was not solely responsible for Scott’s death;
• the trial court did not provide a complete and supportive list of aggravating factors justifying the defendant’s sentence; and
• several manslaughter cases received lesser sentences than his 26 years.

The state points out that the trial court considered the sentencing factors set out in La. C. Cr. P. art. 894.1, the presentence investigation, and letters and testimony submitted on behalf of the defendant and the victim. The trial court noted that the crime was committed with a firearm. It found that the defendant was in need of correctional treatment. The state also cites several cases where similar sentences were imposed and affirmed by this court. The state also submits that there was sufficient evidence to convict the defendant of second degree murder and thus he benefit-ted from the jury’s responsive verdict.

Our law on the appellate review of sentences is well settled.

^Manslaughter carries up to 40 years at hard labor. La. R.S. 14:31.

Mack’s cases supporting his request for leniency are distinguishable.

The court listed ample factors considered in its midrange sentence, which is not constitutionally excessive. It certainly does not shock the sense of justice.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Det. Mayfield pointed out to the defendant that there was no damage to the back of Scott's vehicle and no weapon was found in Scott’s possession or in his car.

      . The defendant filed a writ application with this court; it was denied. We advised the defendant that he could raise the issue on appeal. No. 48,508-KW.

      .- Before imposing sentence, the trial court denied his post-verdict motions.
      The decedent’s mother and wife testified about the impact of Scott’s death on his family, including his three young daughters.
      The mother of Mack’s son testified that Mack financially suppprted their son and pointed out that their son would suffer from the absence of his father.

      . See, State v. Cotton, 10-409 (La.App.5th Cir.5/31/11), 67 So.3d 673; State v. Henderson, 40,257 (La.App.2d Cir.10/26/05), 914 So.2d 106; State v. Hamilton, 39,168 (La.App.2d Cir.10/27/04), 886 So.2d 638.

      . See State v. Anderson, 47,175 (La.App.2d Cir.6/20/12), 93 So.3d 885; State v. Ingram, 45,546 (La.App.2d Cir.6/22/11), 71 So.3d 437, writ denied, 2011-1630 (La.1/11/12), 77 So.3d 947; State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.
      The second portion of the inquiry requires that a determination be made regarding the constitutional excessiveness of a sentence. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Washington, 46,568 (La.App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 2011-2305 (La.4/27/12), 86 So.3d 625.
      The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App.2d Cir.12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

      .In State v. Henderson, supra, the defendant, a first time felony offender, pled guilty to manslaughter and was sentenced to serve 16 years at hard labor. However, the defendant in that case was involved in an actual physical altercation with the victim when the killing occurred.

        In State v. Hamilton, supra, the defendant, who had no prior criminal record, pled guilty to manslaughter and received a 12 ½-year sentence. However, again, the defendant in that case was involved in a physical altercation when she shot the victim.
      In State v. Cotton, supra, the defendant was convicted of manslaughter and sentenced to serve 10 years at hard labor after stabbing and killing a man outside the defendant’s motel room. However, at the defendant’s trial there was evidence that the defendant acted under provocation. Specifically, after meeting the victim for a sexual encounter, the defendant discovered that the victim was a man.