author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Bobby K. PARKER.
    No. 2012-KA-0588.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

It The defendant Bobby K. Parker was charged by bill of information with simple burglary in violation of La. R.S. 14:62. Following a jury trial, the defendant was found guilty of the lesser offense of attempted simple burglary. The defendant argues on appeal that he received ineffective assistance of counsel and the trial court abused its discretion in imposing an unconstitutionally excessive sentence. Finding no merit to the issues raised on appeal, we affirm the conviction and sentence.

PROCEDURAL HISTORY

The defendant Bobby K. Parker (“the defendant”) was charged by bill of information with simple burglary in violation of La. R.S. 14:62. The defendant was tried by a jury finding him guilty of the lesser offense of attempted simple burglary. The defendant was later sentenced to five years at hard labor with credit for time served. Thereafter, the State filed a multiple bill against the defendant |awho had prior convictions for simple kidnapping and three counts of simple burglary. The State charged the defendant as a fourth offender.

The defendant filed a motion for new trial and a motion to quash the multiple bill, or in the alternative, a motion for an out of time appeal. In the motion to quash, counsel for the defendant argued that had discovery regarding the defendant’s multiple offender status been provided prior to the trial or at trial, “counsel would have strongly encouraged [the defendant] to take a plea of a lesser sentence when possibly faced with 20 years to life as a multiple offender under La. R.S. 15:529.1 and [the defendant] more than likely would have accepted such a[n] offer rather than risk a possible life sentence.” Both motions were denied by the trial court.

At the multiple bill hearing, the defendant admitted that he was a multiple offender and was sentenced to twelve years at hard labor with credit for time served. The State objected to the sentence and filed a supervisory writ with this court. This court granted the State’s writ application and remanded the matter for resen-tencing with instructions to the trial court to resentence the defendant for a term of “not less than twenty years.” Accordingly, the defendant was sentenced to twenty years at hard labor. This appeal follows.

FACTUAL BACKGROUND

|sThe property owners of 1809 North Broad Street began renovation after the property was damaged during Hurricane Katrina. A close family friend, Ronald Perkins, drove by regularly and stopped in occasionally to check on the property. By October 2009, the second floor was completed and the first floor was gutted. At that time, no one was living in the home.

Ronald Perkins Testimony

Ronald Perkins (“Mr. Perkins”) testified at trial that on October 9, 2009, between 11:30 a.m. and 1:00 p.m., he was driving by 1809 North Broad Street when he looked down the alleyway and noticed boots sticking out of a rear window. He stopped and heard noise coming from the upstairs and noticed that a window was torn out. From the neutral ground, Mr. Perkins tried to call 911, but did not receive an answer. Mr. Perkins then flagged down a passing police vehicle.

Mr. Perkins testified he was in the house three days prior to the incident and also stopped by the house one day prior to the incident to check to see if the grass needed mowing. He testified that on the day prior to the incident, the rear window was not broken.

At trial, Mr. Perkins identified the defendant in court as the individual who was pulled from the house after he flagged down the police car. He also stated that he recognized him because the defendant lived “two doors down” from 1809 North Broad Street. He further testified that no one gave the defendant permission to enter the house.

|4Upon entering the house, Mr. Perkins testified that the house was in disarray; the television in one of the bedrooms was missing; dresser drawers were opened and clothing was “all over the place”; jewelry was missing; and it appeared someone had slept in the bathtub. A cable box and Play Station were also missing.

Officer Hillary Hunt Testimony

Officer Hillary Hunt (“Officer Hunt”) also testified that he responded to a call regarding a residential burglary at 1809 North Broad Street. After arriving, he met with Mr. Perkins, who advised him that he had observed someone climbing through a window. Officer Hunt and his partner approached the residence, at which time Officer Hunt observed the defendant crawling out of a window. Officer Hunt testified that he ordered the defendant to come out and after the defendant emerged, Officer Hunt handcuffed him. Officer Hunter further testified that he observed a 26-inch television set near the window from which the defendant had emerged.

The crime lab took photographs, which were identified by Officer Hunt. No evidence was recovered from the defendant’s person, nor were any fingerprints lifted from the scene.

Michael Schmidt Testimony

Michael Schmidt, one of the joint owners of the house, testified that he knew the defendant as a neighbor, but had not given him permission to enter the house.

¡.ERRORS PATENT

A review of the record reveals no errors patent.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first assignment of error, the defendant argues that he was denied effective assistance of counsel because the “purported” admission to the multiple bill was not withdrawn after the case was remanded and the previous sentence was vacated. He further alleges that the State’s allegation that he is a quadruple offender relies on a release date from a 1994 conviction that was not proven, and that the defendant’s admission to his quadruple offender status was based upon an understanding that the sentence would be below the statutory minimum.

Generally, the preferred procedure for addressing ineffective assistance of counsel claims is a post-conviction proceeding in the trial court. State v. Watson, 00-1580, p. 4 (La.5/14/02), 817 So.2d 81, 84 (citing State v. Deloch, 380 So.2d 67, 68 (La.1980)). A post-conviction proceeding provides for a full evidentiary hearing to be conducted to explore the issue. Id. (citing State v. Stowe, 93-2020 (La.4/11/94), 635 So.2d 168, 173; Deloch, supra). Where the appeal record discloses sufficient evidence upon which to make a determination of counsel’s effectiveness, the decision may be made on appeal in the interest of judicial economy. State v. Seiss, 428 So.2d 444, 449 (La.1983).

Additionally, this court acknowledged that a defendant asserting an ineffective assistance of counsel claim must overcome a “sound trial strategy” presumption:

A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional | r,assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. If an alleged error falls “within the ambit of trial strategy,” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986). (citations omitted). Moreover, “[wjhile opinions may differ on the advisability of such a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

State v. Skipper, 11-1346, p. 7 (La.App. 4 Cir. 10/10/12), 101 So.3d 537, 542. This court has further stated that “[i]n order to prevail, a defendant must establish that counsel’s performance was deficient and that the deficiency prejudiced him.” State v. Cavazos, 11-0733, p. 19 (La.App. 4 Cir. 5/16/12), 94 So.3d 870, 883 (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s performance is considered ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Initially, counsel for the defendant raised objections to the multiple bill in the motion to quash which the trial court denied. The motion complained that the discovery of the documentation of the underlying convictions was not provided timely. Nevertheless, counsel for the defendant allowed him to admit to being a fourth offender without first requiring the State to prove that the ten-year cleansing period under La. R.S. 15:529.1(C) had not expired in addition to the supporting documents on all the convictions.

|7The defendant argues on appeal that his counsel failed to pursue the objections when the case was remanded for resen-tencing. The defendant concedes that there were no promises made for an exact sentence, but insists that the guilty plea was made with the understanding that the sentence imposed would be below the statutory minimum. The defendant further contends that his counsel had not adequately determined the strength of the State’s evidence relating to his quadruple offender status; that the sentence he understood he would receive was not lawfully possible; and that the defendant did not understand the consequences for his admission as a quadruple offender. As a result, the defendant argues, his counsel erred by not requesting the trial court to allow him to withdraw the admission to the multiple bill, thereby requiring the State to meet the burden of proving the ten-year lapse from the most recent prior conviction pursuant to La. R.S. 15:529.1(C). Specifically, the defendant avers that the State failed to prove that he was still incarcerated for the 1994 conviction on October 9, 1999, and that his counsel was therefore ineffective.

In suppoi't of his ineffective assistance of counsel claim, the defendant relies in part upon Padilla v. Kentucky, 559 U.S. 356, -, 130 S.Ct. 1473, 1483-84, 176 L.Ed.2d 284 (2010), wherein the Supreme Court held that because counsel for the defendant failed to inform the defendant, who had been a lawful permanent resident of the United States for over forty years, that his plea of guilty made him |8subject to automatic deportation, the defendant established that his counsel was incompetent to satisfy the first prong of Strickland, The defendant relies upon the Court’s language that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Padilla, 559 U.S. at -, 130 S.Ct. at 1486.

The defendant also cites to Lafler v. Cooper and Missouri v. Frye, two post-Padilla opinions the Supreme Court issued. Lafler, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Like Padilla, in Frye the Supreme Court recognized at the outset that “[i]t is well settled that the right to the effective assistance of counsel applies to certain steps before trial.” Frye, — U.S. at -, 132 S.Ct. at 1405. In Frye, defense counsel “did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms.” Lafler, — U.S. at -, 132 S.Ct at 1383.

In Lafler, the Court likewise acknowledged that “[defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process.” Id., — U.S. at -, 132 S.Ct. at 1384. The Lafler Court noted that to establish prejudice under Strickland, “a defendant ‘must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., — U.S. at -, 132 S.Ct. at 1394 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). In addition, “a defendant must show the outcome of the plea process would have been different with | competent advice.” Id., — U.S. at -, 132 S.Ct. at 1384 (citing Frye at 1388-89, 132 S.Ct. at 1399).

In Lafler, the defendant was informed of the favorable plea offer, but on advice of counsel, he rejected it. Id., — U.S. at -, 132 S.Ct. at 1383. After the trial, the jury returned a guilty verdict, and the defendant received a harsher sentence than the one offered in the rejected plea bargain. Id. The Lafler Court acknowledged that “all parties agree[d] [that] the performance of respondent’s counsel was deficient when he advised respondent to reject the plea offer on the grounds he could not be convicted at trial.” Id., — U.S. at -, 132 S.Ct. at 1384. Accordingly, the Court proceeded directly to Strickland’s prejudice test. The Court determined that a defendant has a right to effective assistance of counsel in considering whether to accept a plea bargain, and “[i]f that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more sevére sentence.” Id., — U.S. at -, 132 S.Ct. at 1387. The Court held that as all parties agreed that the defendant’s counsel’s performance was deficient, the defendant was prejudiced by his counsel’s advice to reject the plea offer and proceed to trial. Id., — U.S. at -, 132 S.Ct. at 1389. The Court concluded that “[t]he correct remedy in these circumstances ... is to order the State to reoffer the plea agreement.” Id., — U.S. at -, 132 S.Ct. at 1391.

In the present case, the State argues that the defendant has failed to point to any evidence to support the argument that defense counsel’s inaction constitutes ineffective assistance of counsel. Although the defendant argues his counsel did not insist on documentation from the State to confirm that his 1994 kidnapping conviction fell within the ten-year period, the State argues that the defendant | ^testified at the multiple bill hearing that all three prior convictions “linked up” to his attempted simple burglary conviction. Additionally, the State argues that the defendant expressly waived the right to require the State to prove that the predicate convictions dating back to 1983, 1988, and 1994 fell within the ten-year period, citing the defendant’s testimony at the multiple bill hearing.

Furthermore, the State contends that the defendant has not alleged that the 1994 conviction was in fact outside the ten-year period; and therefore, the defendant failed to establish any prejudice suffered as a result of the alleged ineffective assistance of counsel.

Pursuant to Padilla, Lafler, and Frye, supra, the Sixth Amendment right to effective assistance of counsel applies to the plea bargaining process. Considering first whether the defendant’s counsel was ineffective under Strickland, we must “determine whether counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Padilla, — U.S. at -, 130 S.Ct. at 1482 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2052).

Here, the defendant indicated in open court that he fully understood the consequences of admitting to the prior convictions. Specifically, the defendant advised the court that he understood he was giving up “the right to force the district attorney to prove that [he was] one in the same individual with those prior felonies that link up.” The defendant was also advised by counsel of any risk of admitting to the prior convictions at the multiple bill hearing, evidenced by his answer in the affirmative when asked by the court whether he had gone over “everything” with his attorney.

|n Moreover, the defendant signed and initialed a “Waiver of Rights-Plea of Guilty Multiple Offender — La. R.S. 15:529.1” form. In that document, the defendant indicated that he understood his right to have a hearing and to force the district attorney to prove that he was one in the same individual with the prior felony record; that he had the right to remain silent at the hearing and not have that silence held against him; that he understood the sentencing range for three prior felonies was twenty years to life; that he was satisfied with his attorney and the trial court in explaining the consequences of the guilty plea; and that he understood all of the possible legal consequences of pleading guilty.

In light of the fact that the defendant signed the waiver of rights form and indicated to the court on the record that he had discussed everything with his attorney and that he was aware he was giving up the right to force the state to prove his multiple offender status, we find the defendant’s argument that he did not understand the consequences of his admission to the multiple bill or that the risks of doing so were not communicated to him by counsel lacks merit. See State v. Chirlow, 99-14, pp. 8-9 (La.App. 5 Cir. 6/1/99), 738 So.2d 679, 684.

Having determined that the defendant’s counsel was not ineffective, this court need not reach the issue of whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2052. In any event, however, the defendant has neither alleged nor demonstrated for this court that the 1994 conviction was outside the ten-year cleansing period. Accordingly, we find that even if the defendant had established that his counsel was deficient, the defendant 112has failed to establish that he was prejudiced by the alleged ineffective assistance of counsel.

EXCESSIVE SENTENCE

The defendant also alleges that the sentence imposed by the trial court was unconstitutionally excessive. In determining whether the sentence imposed by a trial court was unconstitutionally excessive, the Louisiana Supreme Court has previously held:

The pertinent question on appellate review is “whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” State v. Humphrey, 445 So.2d 1155, 1165 (La.1984); see also State v. Taves, 03-0518, p. 4 (La.12/3/03), 861 So.2d 144, 147 (per curiam)(collecting cases). A trial court “abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const. art. I, § 20, i.e., when it imposes ‘punishment disproportionate to the offense.’ ” State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608 (quoting State v. Sepulvado, 367 So.2d 762, 767 (La.1979)). In making that determination, “we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Bonanno, 384 So.2d 355, 358 (La.1980).

State v. Colvin, 11-1040, p.7 (La.3/13/12), 85 So.3d 663, 667-68, cert. denied, — U.S. -, 133 S.Ct. 274, 184 L.Ed.2d 162 (2012); See also State v. Wilson, 11-0960, pp. 10-11 (La.App. 4 Cir. 9/5/12), 99 So.3d 1067, 1074 (“A trial judge has broad discretion to sentence within statutory limits and under the standard just recently articulated by the Louisiana Supreme Court in Colvin, a trial court ‘abuses its discretion only when it ... imposes punishment disproportionate to the offense.’”) (quoting Colvin, 11-1040, p. 7, 85 So.3d at 668).

Additionally, when reviewing a claim of excessive sentence, an appellate court must determine whether the trial court adequately complied with the statutory | ^guidelines in La.C.Cr.P. Art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, 03-1671, pp. 8-9 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-40. Likewise,

“[i]t is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. Id. To merit a deviation below the mandatory minimum sentence, the defendant must clearly and convincingly show that he is exceptional. State v. Johnson, supra. Such downward departures should occur only in rare instances. Id.”

State v. Douglas, 06-0319, pp. 5-6 (La.App. 4 Cir. 2/14/07), 952 So.2d 793, 797 (quoting State v. Robert, 05-1315, pp. 3-4 (La.App. 4 Cir. 5/31/06), 931 So.2d 1268, 1271).

The State submits that a conviction for attempted simple burglary carries a maximum sentence of six years at hard labor pursuant to La. R.S. 14:27(D)(3) and 14:62(B). Under the Habitual Offender Law, the penalty for a fourth felony offender is imprisonment “for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.” La. R.S. 15:529.1(A)(4)(a). Pursuant to this statute, the defendant faced a sentencing range of twenty years to life. The trial court in this case imposed the mandatory minimum sentence.

|i4A mandatory minimum sentence may nevertheless be considered constitutionally excessive. The Louisiana Supreme Court has recognized that although “it is apparent that the Legislature’s determination of an appropriate minimum sentence should be afforded great deference by the judiciary,” it is well-settled that “courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, although it falls within the statutory limits provided by the Legislature.” State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 676.

The Johnson court expounded on the factors to consider when determining whether a defendant’s minimum sentence is excessive:

The issue for this Court is to determine under what rare circumstances a sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Law.
In State v. Dorthey, [623 So.2d 1276 (La.1993) ], this Court held that a trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment”, or is nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime.” Id. at 1280-81. Finding a mandatory minimum sentence constitutionally excessive requires much more, though, than the mere utterance of the phrases above.

[Furthermore,]

A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or pri- or offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders ... Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of non-violent offenses may |, splay a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.
Instead, to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case, [quoting [State v.] Young, 94-1636 at pp. 5-6 [ (La.App. 4 Cir. 10/26/95)], 663 So.2d [525] at 528 (Plotkin, J., concurring) ].

Johnson, 97-1906 at pp. 4-8, 709 So.2d at 676.

Additionally, we have previously acknowledged that:

[w]here a minimum sentence does not transcend constitutional limits, it may not be reformed by this Court merely because it seems harsh. This Court does not have the authority to second guess the legislature concerning the wisdom of minimum sentencing on any ground other than that of constitutional excessiveness.

State v. Williams, 05-0176, p. 8 (La.App. 4 Cir. 5/3/06), 932 So.2d 693, 698 (quoting State v. Finch, 97-2060 (La.App. 4 Cir. 2/24/99), 730 So.2d 1020, 1027-28).

The defendant argues that 1809 North Broad Street was “gutted and unoccupied” at the time of the offense. He also contends that he was removed from the property by the police; he did not have any tools or property from the house; and that he did not have any injuries from broken glass. The defendant further argues that the property missing from the house was not in the defendant’s possession. While acknowledging that his entry was unauthorized, the defendant contends that there was no evidence that the burglary in this case was “particularly heinous.” In addition, he argues that at forty-five years old, a twenty year sentence |1fiwill serve no purpose because he “will be locked up during the years of his like [sic] when he is less likely to commit serious crimes and more likely to require high cost care, due to his age.” Accordingly, the defendant argues that the twenty year sentence for attempted simple burglary is excessive.

In the present case, the trial court considered mitigating factors pursuant to La. C.Cr.P. Art. 894.1 in imposing the initial sentence and the subsequent twelve year sentence on the multiple bill. Namely, the trial court considered the fact that the house was a “[Hurricane] Katrina flooded, unoccupied house.” However, the defendant avers that the trial court was forced to impose the twenty year sentence. Thus, he argues, the trial court could give no reasons prior to imposing the twenty year sentence in accordance with La. C.Cr.P. Art. 894.1.

Despite the defendant’s contentions, the defendant faced a sentencing range of twenty years to life as a fourth felony offender. The trial court, accordingly, sentenced him to the mandatory minimum sentence. A court may only depart from the minimum sentence if there is clear and convincing evidence that rebuts the presumption of constitutionality, the burden of proof that the defendant carries.

A review of the record indicates that the non-violent nature of the defendant’s offenses is a leading reason for the defendant’s assertion that the twenty year sentence is excessive. Louisiana jurisprudence, however, directs this court to find that in order to rebut the presumption of constitutionality of the mandatory minimum sentence, the non-violent nature of the offenses must not be the only or even the leading reason for the defendant’s assertion that the imposed sentence is excessive. In this case, while a twenty year sentence for attempted simple burglary is harsh, the defendant has failed to make a showing by clear and convincing evidence that he is exceptional to require a downward departure from 117the mandatory minimum under the current facts and circumstances. Therefore, we do not find the sentence was unconstitutionally excessive.

DECREE

For the foregoing reasons, we find no merit to defendant’s claims that he received ineffective assistance of counsel and that the trial court abused its discretion in imposing an unconstitutionally excessive sentence. Therefore, we affirm the conviction and sentence.

AFFIRMED

      . The predicate offenses listed on the multiple bill, all from Orleans Parish Criminal District Court, are a plea of guilty to kidnapping on June 30, 1994; a plea of guilty as charged to two counts of simple burglary on June 19, 1988; and a plea of guilty to simple burglary on January 26, 1983.

      . State v. Parker, 2011-1654 (La.App. 4 Cir. 12/20/11), unpub.

      . Mr. Schmidt testified that his mother owned the house, and after inheriting it, he co-owned the house with five other siblings.

      . La. R.S. 15:529.1(0) provides:
      The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

      . The Court did not reach the issue of whether the defendant was prejudiced by his incompetent counsel. Padilla, 559 U.S. at -, 130 S.Ct. at 1478.

      . During the sentencing colloquy, the defendant answered in the affirmative when asked if he was admitting to being a "four-time offender ... having at least three prior felony convictions ... that link up since 1983”, when asked if he understood that the range as a "four-time offender as entered into then becomes twenty years to life”, when asked if he understood all the legal consequences of entering a plea as a "four-time offender”, and when asked if he had "gone over everything with [his] attorney.”

      . La. R.S. 14:27(D)(3) provides:
      D. Whoever attempts to commit any crime shall be punished as follows:
      (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

      . La. R.S. 14:62(B) provides:
      B. Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    Kenneth LANDIX v. Donna BLUNT and Patricia Nicholson.
    No. 2012-CA-1231.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Kurt C. Garcia, Garcia Law Firm, Ken-ner, LA, for Plaintiff/App ellant.
    Robert E. Couhig, III, Claire E. Pontier, Couhig Partners, LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

|,This appeal is taken from a judgment in favor of appellees (defendants/plaintiffs-in-reconvention), Donna Blunt and Patricia Nicholson (sometimes collectively referred to as “appellees”), dismissing the claims of Kenneth Landix, appellant (plaintiff/defendant-in-reconvention). For the reasons set forth below, we affirm the trial court’s judgment.

FACTUAL BACKGROUND

This case concerns the reconstruction and renovation of a home located at 3126 N. Johnson St., in New Orleans, Louisiana (the “Property”), and owned by Patricia Nicholson and her daughter, Donna Blunt. The home was damaged as a result of Hurricane Katrina and renovation/reconstruction began some time in September of 2007, after appellees received funding for repairs from the Road Home program. At that time, Ms. Blunt was involved in a romantic relationship with Mr. Landix and the two were living together. Mr. Landix offered to help with the renovation of the Property. Neither party disputes that Mr. Landix performed work on the Property, although much of the work, including the replacement of ^flooring, the installation of central air conditioning, plumbing and electrical work, was contracted out. The dispute in this case concerns monies Mr. Landix claims he is owed for the work he performed and for alleged expenses he incurred.

Mr. Landix filed suit on September 15, 2008, and his Petition for Damages for Breach of Contract and Unjust Enrichment (“Petition”) alleges that appellees paid him $12,000 but still owe $68,000. The amount of damages sought is unclear as the Petition also states that Mr. Landix has “$29,510 in unpaid expenses” and “has not been compensated for the payments made to the subcontractors.” However, the prayer for relief again seeks the sum of $68,000, together with judicial interest, attorney’s fees and costs.

In response to the Petition, appellees filed an Answer and Reconventional Demand, in which they alleged that Mr. Lan-dix’s work was defective or performed in an unworkmanlike manner. In their Re-conventional Demand, appellees sought the return of all monies paid to Mr. Landix and “other damages.”

This matter proceeded to a bench trial on May 29, 2012, following which judgment was rendered on May 31, 2012 in favor of appellees, dismissing Mr. Landix’s Petition in its entirety. Reasons for Judgment were issued the same date, which found “Ms. Blunt to be extremely credible” and likewise found the testimony of Mr. Landix to be “totally incredible and unbelievable.”

In its well-explained Reasons for Judgment, the trial court stated:

The Court believes Ms. Blunt, that she paid Mr. Landix all the money required and requested by him for the job. According to the checks produced by Ms. Blunt, she noted “home improvement” in the memo section as well as the one check that was written to Mr. Lan-dix. A computation of those figures shows that $78,200 was paid for the work performed on the property at 3126 North Johnson Street. Given Plaintiffs agreement that |a$49,500 was excessive for the work, the Court finds that he was adequately compensated for the work.
There was no contract that existed between the parties. One document Mr. Landix initially produced as the contract [sic]. However, under cross examination, he denied that the amount on that agreement was, in fact, his agreement with Ms. Blunt ... [T]he Court finds that Mr. Landix, the plaintiff, has failed to meet his burden of proof that defendants ... owe him any additional sums for the renovation of the property ...

Mr. Landix has timely appealed the trial court’s judgment.

STANDARD OF REVIEW

The judgment in this matter is based, in large part, on the trial court’s factual findings and its evaluation of the witnesses and their credibility. In reviewing those findings, we note that an appellate court must review factual determinations made by the trial court using the manifest error or clearly wrong standard. Mayeux v. Rocky & Carlo, Inc., 07-0687, p. 2 (La.App. 4 Cir. 4/23/08), 984 So.2d 177, 179; Urology Clinic of New Orleans, Inc. APMC v. United Fire and Cas. Co., 08-0444, p. 2 (La.App. 4 Cir. 9/10/08), 993 So.2d 803, 806.

When a trial court’s factual findings are based on the credibility of witness’s testimony, the appellate court must give great deference to the fact finder’s decision to credit a witness’s testimony. Cottingim v. Vliet, 08-1263, p. 4 (La.App. 4 Cir. 8/12/09), 19 So.3d 26, 28, quoting Watters v. Dep’t of Soc. Servs., 08-0977, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1142. The deference afforded the trial court’s “reasonable evaluations of credibility and reasonable inferences of fact” is “based, in part, on the trial court’s ability to better evaluate the testimony of live witnesses, compared with an appellate court’s sole reliance upon a written record.” Wooley v. Lucksinger, 09-0571, p. 50 (La.4/1/11), 61 So.3d 507, 555. (Citations omitted). The Wooley court further recognized that this standard of review is based on “the proper allocation of trial and appellate functions between the respective courts.” Id.

DISCUSSION

It is clear from the record that no written contract existed between the parties and no party contends that a written contract existed. Appellant, however, maintains that he entered into an agreement with Ms. Blunt for the renovation of the property, thereby creating a contract. Appellant relies on two factors to establish the existence of a contract. First, he maintains that Ms. Blunt acknowledged certain documents at trial, citing certain portions of her testimony. Second, appellant cites Ms. Blunt’s testimony where she agreed that appellant was to be paid for the work.

The trial court rejected appellant’s arguments and found that “no contract ... existed between the parties.” We find no manifest error in this determination. See: Sam Staub Enterprises, Inc. v. Chapital, 11-1050, p. 5 (La.App. 4 Cir. 3/14/12), 88 So.3d 690, 693 (“[t]he existence or nonexistence of a contract is a question of fact and, accordingly, the determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong” (Citations omitted)); Tallulah Const., Inc. v. Northeast Louisiana Delta Community Development Corp. 07-1029, p. 5 (La.App. 4 Cir. 4/23/08), 982 So.2d 225, 229 (“[A trial court’s] determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong.” (Citations omitted)).

Under La C.C. art. 1846, a contract not reduced to writing which exceeds $500 “must be proved by at least one witness and other corroborating | ¿circumstances.” Thus, as in this case, where appellant claims to be owed well in excess of $500, he bears the burden of proving the existence of a contract.

We have reviewed those pages of Ms. Blunt’s testimony upon which appellant relies in support of his position that a contract was formed and note that the documents she identified include: “a written estimate from First Impression Home Improvement (not an estimate from appellant); a building permit dated September 10, 2007; and a document entitled City of New Orleans Department of Public Safety and Permits Application for Substantially Damaged Determination.” None of these documents substantiate the existence of an oral contract between appellant and appel-lees.

Similarly, while Ms. Blunt may have agreed that appellant was to be paid for his work, we do not find that this created a binding contract for appellant to serve as a general contractor, as he contends. A binding contract requires consent of the parties, established through offer and acceptance, and a meeting of the minds. Kaufman v. Audubon Ford/Audubon Imports, Inc., 04-1540, p. 5 (La.App. 4 Cir. 4/27/05), 903 So.2d 486, 489, writ denied, 05-1286 (La.12/9/05), 916 So.2d 1060. As this Court found in Sam Staub Enterprises, supra, the record in this matter does not support a finding that there was a meeting of the minds between the parties.

Because we do not find error in the trial court’s determination that no contract existed, it follows that appellant has no breach of contract claim. See, e.g. Stanton v. Tulane University of Louisiana, 00-0403, p. 12 (La.App. 4 Cir. 1/10/01), 777 So.2d 1242, 1249 (“[i]n order to prevail on a breach of contract claim, [plaintiff] must first prove the existence of a contract”).

We now turn to appellant’s contention that he should have been awarded a “reasonable amount for his labor and materials.” The only testimony as to the amount appellant was to be paid was his self-serving testimony that Ms. Blunt agreed to pay him “$49,500 ... on completion of the job,” which sum did not include materials and supplies (which he testified amounted to $29,510, a sum which he also maintains he is owed).

Appellant’s testimony that he “paid for the bulk of the materials out of [his] pocket” is belied by his admission that he had no checking account, no savings account and no credit card. Appellant relies on a portion of Ms. Blunt’s testimony where she appeared to admit that she did not pay him for the building materials; however, when asked directly whether appellant paid for “all of the items, materials that were purchased for the home” with “money that “[she] gave him,” Ms. Blunt testified in the affirmative. Her testimony was unambiguous:

Q. And most of these receipts ... were paid for how?
A. Cash.
Q. Do you know who purchased the items that are shown on that receipt or those receipts?
A. Mr. Landix purchased the items.
Q. And how did he get the money to purchase those items?
A. I gave him the money. I went to the bank, got the money from out of the bank and gave him cash.

[ 7While appellant testified that he had “maybe 20 grand” in savings at the time that the renovation work began, $13,000 of which came from a recent project, he offered no evidence in support of this fact, nor any evidence demonstrating that he, personally, paid for anything on the project. Likewise, with respect to his claim for the cost of his labor, we find no error in the trial court’s finding that “he was adequately compensated for the work.” The trial court reviewed the evidence admitted in this case, including Ms. Blunt’s checks on which she noted “home improvement” and concluded that Ms. Blunt paid $78,200 for the renovation work.

We have examined all of the receipts appellant introduced at trial and, together, they total $20,646.78. Given the trial court’s finding that Ms. Blunt paid $78,200 for the renovation work less the actual costs represented by the receipts, there remains $57,553.22 for which there is no accounting. Accordingly, we find no error in the trial court’s determination that appellant was compensated for his work.

Lastly, we find no merit to appellant’s contention that the trial court erred in dismissing his case. Having found that appellant “failed to meet his burden of proof that defendants ... owe him any additional sums for the renovation of the property,” the trial court properly dismissed the action. See, e.g. Cloy v. Lee, 01-920 (La.App. 5 Cir. 1/15/02), 807 So.2d 900, 905 (where court found no liability on defendants’ part, there was no “error in the trial court judgment dismissing the | ¡¿Plaintiffs case against the Defendants”); Bailey v. State Through Dept. of Health and Human Resources, 96-2797 (La.App. 4 Cir. 5/21/97), 695 So.2d 557, 562 (where plaintiffs “failed to meet their burden of proof to establish medical malpractice ... the trial court judgment dismissing the [plaintiffs’] suit ... is affirmed”).

CONCLUSION

After reviewing this matter, we find that the trial court’s evaluation of the evidence and testimony was accurate and reasonable and accordingly, we affirm the trial court’s judgment.

AFFIRMED

      . The record does not reflect whether the home is titled to both Ms. Nicholson and Ms. Blunt, although Ms. Blunt testified that the home is owned by her mother over whom she has had power of attorney since 2006 or 2007. As no one raised the capacity of the parties in this lawsuit, we do not address whether Ms. Blunt is a proper party defendant.

      . The trial court’s judgment is silent as to the demands set forth in the Reconventional Demand. Appellees did not answer the appeal or otherwise raise the trial court’s failure to address their Reconventional Demand in this appeal.

      . During Ms. Blunt's testimony, she was also asked to identify an undated, unsigned handwritten note entitled "Job site” which appellant later testified was what he "basically was gon'[sic] be doing Johnson on Street [sic]” and which appears to be a list of renovations to be made. She did not recognize this document, although we note that it contains basically the same listing of work to be done that was included in the First Impression Home Improvement estimate, and states $49,500 at the top which, curiously, is the amount of the First Impression Home Improvement estimate.

      . It is evident that appellant is not clear as to the amount he claims he is owed. Appellant’s Petition seeks $68,000, while he testified that he is owed $49,500, plus the expenses he claims to have incurred in the amount of $29,500. These sums total $79,000. Likewise, at some later point in his testimony, appellant indicated that he was out of pocket "roughly about [$]15,000."

      . The record does not contain any of appel-lees' exhibits, including her checking account records and no explanation is given for their absence. However, we note that Ms. Blunt's checking account records were actually introduced into the record with no objection and appellees’ counsel identified numerous checks (also introduced into evidence), all of which were considered by the trial court in rendering judgment.


text:
    STATE of Louisiana v. Willie CARTER.
    No. 2012-KA-0317.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

|, Defendant appeals his conviction by an Orleans Parish jury of possession of cocaine. For the reasons that follow, we affirm the conviction and sentence.

PROCEDURAL BACKGROUND

By bill of information dated June 27, 2006, defendant, Willie Carter, was charged with possession of cocaine, a violation of La.R.S. 40:967(C). Defendant’s motion to suppress evidence was denied by the trial court. Defendant proceeded to a jury trial and was found guilty as charged. Defendant was sentenced to five years imprisonment at hard labor. Defendant appeals his conviction on the sole basis that the trial court erred in denying his motion to suppress evidence.

FACTUAL BACKGROUND

The testimony at both the hearing on defendant’s motion to suppress evidence and trial reflect that members of the New Orleans Police Department’s Special Operations Division were on foot patrol in the Jackson Landing Apartment Complex on Garden Oaks Boulevard on April 18, 2006. Officer Octavio Baldassaro testified that he observed a subject, later identified as Travis Jordan, ^standing in front of Apartment 807, along with several other subjects. Upon observing the officers, Jordan reached under his untucked shirt, removed a handgun, discarded it to the ground, and then fled into the nearby apartment. Officer Baldassaro and his partner, Officer Chad Gagnon, issued a radio broadcast informing that they had observed a subject with a weapon and were in pursuit. Officer Baldassaro retrieved the weapon, as officers Stephen Kelleher and his partner, Jason Samuel, responded to the call for assistance.

Officers Gagnon and Kelleher entered the apartment in pursuit of Jordan, and after locating him in the restroom, began to place him under arrest. As the officers were placing Jordan under arrest, Officer Kelleher observed another subject, later identified as the defendant, lying on the floor of the apartment. He was observed reaching into his right front pants pocket and removing a plastic bag. He attempted to conceal the bag between a dresser and a group of loose clothes on the ground. Officer Kelleher secured the defendant and retrieved the bag which contained twenty-two pieces of what appeared to crack cocaine. The evidence was later tested and determined to be crack cocaine.

DISCUSSION

In his sole assignment of error, defendant contends that the trial court abused its discretion when it denied the motion to suppress evidence and allowed the evidence to be introduced at trial. He submits that the warrantless entry into the |sapartment violated his right to be free from unreasonable searches and seizures under both the United States and Louisiana Constitutions.

Defendant maintains that the evidence should have been suppressed as the police lacked probable cause to believe that Travis Jordan had committed a crime, and further, that there were no exigent circumstances to justify the officers’ warrantless entry into the apartment in order to effect Jordan’s arrest.

At the outset, we note that trial courts are vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Lampton, 11-0775, p. 5 (La.App. 4 Cir. 6/11/12), 95 So.3d 1199, 1202, citing State v. Long, 03-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179; State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914.

As a general rule, warrants are required to search a person’s home or his person unless “the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” State v. Lee, 05-2098, pp. 14-15 (La.1/16/08), 976 So.2d 109, 122 (Citations omitted); Mincey v. Arizona, 437 U.S. 385, 393-394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In determining whether sufficient exigent circumstances exist to justify a warrantless entry and search or seizure, the court must “consider the totality of the circumstances and the ‘inherent necessities of the situation at the time.’” State v. Warren, 05-2248, p. 10 (La.2/22/07), 949 So.2d 1215, 1224 (Citation omitted). In State v. Alvarez, 09-0328 (La.3/16/10), 31 So.3d 1022, the Louisiana Supreme Court considered the legality of a warrantless entry by police into an apartment under a set of circumstances similar to those of the instant case. In that case, police officers observed the defendant standing between two apartment buildings behaving in what was described as a nervous and erratic manner. Initially, the defendant declined to speak to the officers and then turned and ran through an alleyway between two apartment buildings. The officers gave chase, and during the pursuit, the defendant removed a gun from his waistband, which he discarded in some bushes. He then ran into a nearby apartment and slammed the door shut. The pursuing officers kicked in the door and placed the defendant under arrest. In a search incident to that arrest, the officers discovered a small bag containing rock cocaine in the defendant’s pants pocket. Thereafter, defendant consented to a search of the apartment which he claimed to share with his girlfriend, and the police recovered additional amounts of crack cocaine.

With respect to the warrantless entry into the apartment, the Supreme Court held:

The officers therefore lawfully recovered the gun abandoned by defendant during the chase and had probable cause to arrest him for at least the offense of carrying a concealed weapon in violation of La. R.S. 14:95. See State v. Johnson, 94-1170, p. 4 (La.App. 4th Cir.8/23/95), 660 So.2d 942, 946. Although the crime of carrying a concealed weapon is a misdemeanor and not a felony, it is a jailable offense and one involving risk to public safety. The officers [sic] warrantless entry of the apartment in hot pursuit to effectuate defendant’s arrest was therefore reasonable at its inception, and, as it turned out, possession of the firearm was chargeable as a felony offense although jurors ultimately acquitted defendant on | ¿¡that count. R.S. 14:95(E)(possession of a firearm while in possession of a controlled dangerous substance); cf. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976)(“[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under [United States v.] Watson, [423 U.S. 411, 96 S.Ct. 820 46 L.Ed.2d 598 (1976) ], by the expedient of escaping to a private place.”); see also State v. Walker, 06-1045 p. 5-6 (La.4/11/07), 953 So.2d 786, 790; compare Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)(Fourth Amendment does not permit warrant-less entry of home to arrest for a nonjailable traffic offense). The subsequent recovery of cocaine from defendant’s pants pocket and from elsewhere in the apartment was therefore not tainted by any prior illegal conduct of the police.

Id., p. 4, 31 So.3d at 1024.

In the instant matter, although defendant suggests that the officers lacked probable cause to arrest, the testimony established that the officers observed Travis Jordan remove a handgun from beneath his untucked shirt before discarding it and then flee into a nearby apartment. As in Alvarez, these facts clearly established probable cause for the offense of carrying a concealed weapon. Given the seriousness of the offense involving a dangerous weapon, the officers’ entry into the apartment in “hot pursuit” of Jordan, who was attempting to escape apprehension, was reasonable.

The officers’ subsequent observation of the bag of cocaine, which defendant attempted to discard, falls within the “plain view” exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures and the requirement of probable cause for a warrant to issue. As this Court explained in State v. Smith, 96-2161 p. 3 (La.App. 4 Cir. 6/3/98), 715 So.2d 547, 549:

|fiIn order for an object to be lawfully seized pursuant to the “plain view” exception to the Fourth Amendment, “(1) there must be a prior justification for the intrusion into a protected area; (2) in the course of which the evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband.” State v. Hernandez, 410 So.2d 1381, 1383 (La.1982); State v. Tate, 623 So.2d 908, 917 (La.App. 4 Cir.), writ denied, 629 So.2d 1126 and 1140 (La.1993).

Accordingly, we find that the officers were lawfully inside the apartment when defendant was observed attempting to discard the bag of cocaine. We therefore hold that the trial court properly denied defendant’s motion to suppress the evidence and we affirm defendant’s conviction and sentence.

AFFIRMED

      . We have reviewed the record for errors patent and find none.


text:
    Ethan BROWN v. Ronal SERPAS, in his Official Capacity as Superintendent, New Orleans Police Department, and Custodian of Records, Defendant.
    No. 2012-CA-1308.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Richard Bourke, Louisiana Capital Assistance Center, New Orleans, LA, for Plaintiff/Appellant.
    Mary Katherine Taylor, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    Emily Maw, Innocence Project New Orleans, New Orleans, LA, Amicus Curiae.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, and Judge SANDRA C. JENKINS).
   DANIEL L. DYSART, Judge.

| plaintiff Ethan Brown appeals the district court’s ruling denying his request, under the Public Records Act, to obtain certain supplemental police reports. For the reasons that follow, we reverse the district court’s ruling and remand for further proceedings.

BACKGROUND:

Ethan Brown filed a Petition for Writ of Mandamus under the Louisiana Public Records Act, naming Roñal Serpas as the defendant, both in his capacity as superintendent of the New Orleans Police Department and as custodian of the records maintained by the department (hereinafter referred to collectively as “NOPD”). Brown sought “any and all records in the custody and control of the New Orleans Police Department concerning Aaron Harvey. Mr. Harvey is deceased. The specific information sought was from all cases in which Harvey was a suspect, defendant, witness, complainant or victim. The petition listed six known cases.

Prior to filing the Petition for Writ of Mandamus, Brown and the NOPD exchanged a series of emails. After seeking clarification of the exact documents requested, NOPD informed Brown that the City Attorney’s office had advised that only initial reports would be released and that no supplemental reports would be forthcoming. Subsequently, Brown specifically requested confirmation of what documents, i.e., photographs, arrest registers, chain of custody forms, crime lab reports, etc., would be released. He received no response.

Brown sent another email to NOPD requesting, as per a previous offer, to inspect and review the information deemed “public” by the NOPD/City Attorney’s Office. He received no response and the subject petition was filed.

A hearing was held on January 17, 2012, after which the trial court requested Brown’s counsel to prepare the judgment.

On March 20, 2012, Brown filed a proposed judgment relative to the January hearing, which indicated by way of certificate that the NOPD objected to the judgment as written, including entitling the pleading “partial judgment.” Contemporaneous with the filing of the proposed judgment, Brown filed a Motion to Compel Disclosure of Public Records seeking specific documents which Brown alleged should be contained within the initial reports, and a Motion for Attorney Fees and Costs.

The trial court signed the judgment as prepared on March 22, 2012, wherein it denied Brown’s request for supplemental police reports and granted Brown’s request for initial reports. The judgment indicated that the parties consented to | -¡produce all reports, both initial and supplemental, as to one of the six cases listed in the petition. The transcript reveals that this particular case had resulted in a conviction. The transcript of the hearing further reflects that the trial court stated it was reserving judgment “with respect to all items encompassed within Plaintiffs initial public records request but not specifically delineated within that initial request.” The trial court orally ordered Brown to submit a specific request to the NOPD, and further reserved judgment as to attorney fees and costs pending a final accounting and written submission by Brown.

On May 14, 2012, the trial court rendered a judgment on Brown’s motion to compel and motion for attorney fees and costs, and on defendant’s Motion to Alter or Amend the Judgment [of March 22, 2012]. The trial court denied NOPD’s motion to amend the previous judgment, denied Brown’s motion to compel, and granted Brown $500 in attorney fees and costs. This appeal followed.

DISCUSSION:

A. Procedural Issues:

Our initial review of this appeal raised jurisdictional questions, which this Court requested the parties address in post-argument briefs. The first issue was whether the March 22, 2012 judgment was appealed timely, and the second issue was whether the May 14, 2012 “final” judgment was interlocutory in nature, and therefore not appealable.

In his post-argument brief, Brown argues that the March 22 judgment did not adjudicate two claims raised in his Petition for Mandamus, specifically: 1) the records encompassed within but not specifically identified in the |4records request; and 2) attorney fees, costs and damages. Thus, the judgment was not final and appealable as of right. La.Code Civ. Proc. art. 1915 A. As such, to be appealable, the subject judgment had to be designated by the trial court as a final and appealable judgment. La.Code Civ. Proc. art. 1915 B(1). Brown asserts that because the trial court signed the judgment as prepared and entitled over the objection of the NOPD, and further denied the NOPD’s motion to alter or amend the judgment, it is clear that the trial court intended the judgment to be a partial judgment not subject to immediate appeal.

NOPD’s argument is based on what is contained in the transcript, that is, the trial court never indicated that it was reserving judgment until such time as the appellant submitted a list of specific items requested from the NOPD.

When the oral reasons or minutes conflict with the written judgment, the latter governs. J.L. Philips & Co., Inc. v. Barber, 150 La. 907, 91 So. 293 (1922); Marino v. Marino, 576 So.2d 1196 (La.App. 5 Cir.1991); Selfe v. Travis, 29 So.2d 786 (La.App. 2 Cir.1947). Additionally, the jurisprudence clearly holds that the trial judge may, within his authority, render a judgment which differs substantially from his prior oral statement. The oral reasons form no part of the judgment. Marino v. Marino, supra; Sanford v. Sanford, 468 So.2d 844 (La.App. 1 Cir. 1985); Margan v. Precision Motors, Inc., 317 So.2d 664 (La.App. 4 Cir.1975); appeal after remand, 360 So.2d 621 (La.App. 4 Cir.1978). Consequently, the minutes and oral opinion of the trial court are of no moment in our analysis.

|BThus, because the partial judgment as rendered states that issues were reserved until a later date, we find that the March 22, 2012 judgment was a partial judgment not designated for immediate appeal. The instant appeal is timely.

B. Merits of Trial Court Ruling:

The sole issue on appeal is whether the trial court erred in ruling that supplemental police reports are exempt pursuant to the Public Records Act.

Louisiana Revised Statute 44:3 provides in pertinent part

A. Nothing in this Chapter shall be construed to require disclosures of records or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, intelligence agencies, or publicly owned water districts of the state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled, except as otherwise provided in Subsection F of this Section; or
(4)(a) The records of the arrest of a person, other than the report of the officer or officers investigating a complaint, until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction. However, the initial report of the officer or officers investigating a complaint, but not to apply to any followup or subsequent report or investigation, records of the booking of a person as provided in Louisiana Code of Criminal Procedure Article 228, records of the issuance of a summons or citation, and records of the filing of a bill of information shall be a public record.
(b) The initial report shall set forth:
(i) A narrative description of the alleged offense, including appropriate details thereof as determined by the law enforcement agency.
(ii) The name and identification of each person charged with or arrested for the alleged offense.
| f,(iii) The time and date of the alleged offense.
(iv) The location of the alleged offense.
(v) The property involved.
(vi) The vehicles involved.
(vii) The names of investigating officers.

The Louisiana Public Records Law is intended to enforce the public’s fundamental, constitutional right to public records in the most expansive and unrestricted way possible. La. Const. Art. XII, § 3; Alliance for Affordable Energy v. Frick, 96-1763 (La.App. 4 Cir. 5/28/97), 695 So.2d 1126.

The Act must be liberally construed in favor of broad public access to public records. Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979 (La.7/1/97), 696 So.2d 562, 564; Carter v. Connick, 623 So.2d 670, 673 (La.App. 4 Cir.1993). Denial of a request for a public record can only be sustained if the law specifically and unequivocally provides against access. See Capital City Press, supra; Cormier v. Di Giulio, 553 So.2d 806 (La.1989).

Relying on State v. Burnes, 516 So.2d 375 (La.App. 4 Cir.1987), the trial court held that supplemental reports are exempt from production under the Public Records Act; thus, only initial reports are subject to disclosure.

Brown contends that he is entitled to all records in the custody of the NOPD relative to the six enumerated police actions set forth in his request because the death of Aaron Harvey logically precludes any further litigation proceeding in the criminal cases for which the records are sought.

He argues that the exceptions to disclosing supplemental reports are temporal, that is, the exception exists only “until pending or reasonably anticipated criminal litigation has been finally adjudicated or otherwise settled.” La. R.S. 44:3 A(1); In re Matter Under Investigation, 07-1853, p. 26 (La.7/1/09), 15 So.3d 972, 990. As Aaron |7Harvey is deceased there can be no reasonably anticipated litigation. The cases are concluded. Thus, the temporary exception no longer applies. We agree.

NOPD argues that supplemental reports are not public records by virtue of the exemptions contained in La. R.S. 44:3A(4)(a), which specifically states that disclosure of records does not apply to any follow-up or subsequent report or investigation. We find this argument lacks merit. NOPD’s interpretation would only hold true if La. R.S. 44:3A(4)(a) were read in a vacuum. The subsections must be read in pari materia. Further, both subsections contain temporal elements which allow for disclosure once certain factors are met. All of those temporal elements are satisfied with the death of the defendant whose records are sought.

Accordingly, we find that supplemental police reports are public records, subject to the exception found in La. R.S. 44:3A(4)(a). We also find that the exception is temporal in nature. La. R.S. 44:3A(1). Thus, once it is clear that no further litigation is forthcoming relative to the records requested, the exception ceases to exist and the records become subject to disclosure.

Applying this finding to the facts of this case, we hold that the records requested by Ethan Brown are public records and must be disclosed. Accordingly, we reverse the ruling of the trial court denying production of the public records requested in the writ of mandamus.

REVERSED AND RENDERED

      . Subsection F of the statute addresses the procedure for family members of a victim to obtain records. It is not germane to this appeal.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STALLINGS CONSTRUCTION COMPANY, INC. v. KLEIN STEEL, INC.
    No. 2012-CA-1482.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.

      Clarence F. Favret, III, David Vicknair, Favret Demarest Russo & Lutkewitte, New Orleans, LA, for Plaintiff/Appellee, Stallings Construction Company, Inc.
    Jenel G. Secrease, Attorney at Law, Ponchatoula, LA, for Defendant/Appellant, Klein Steel, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   DENNIS R. BAGNERIS, SR., Judge.

hThe Appellant, Klein Steel, Inc. (“Klein Steel”), seeks review of a judgment of the trial court awarding the Appellee, Stallings Construction Company, Inc. (“Stallings Construction”), $73,341.67, together with attorney’s fees in the amount of $9,736.00 in damages for breach of contract. For the following reasons, we affirm.

FACTS

On June 5, 2008, Stallings Construction and Klein Steel entered into two subcontract agreements for a project that involved the Catholic Charities Food for Families Building located at 5600 Hayne Boulevard, New Orleans, Louisiana. Stall-ings Construction, as general contractor, sub-contracted with Klein Steel, as subcontractor, to build (1) the main metal building, for a contract price of $135,000.00, and (2) provide steel fabrication and installation of the second floor and other miscellaneous steel work, for a separate contract price of $131,204.00.

On August 5, 2009, Stallings Construction filed suit against Klein Steel alleging that Klein Steel failed to perform the work as agreed upon in the | {.subcontract agreement and that Klein Steel was placed in default on January 28, 2009. As such, Stallings Construction alleged that it suffered cost overruns in the amount of $23,228.72, and that it should be awarded all reasonable attorney’s fees incurred from the date of default. On November 4, 2009, Klein Steel answered the petition with a general denial and also brought a reconventional demand against Stallings Construction. In the reconventional demand, Klein Steel argued that Stallings Construction breached the subcontract by renegotiating with Ruben Diego “Ruben,” one of Klein Steel’s subcontractors, and paying him directly, and that Stallings Construction failed to pay for work performed to alter the original shop drawings.

On June 14, 2011, Stallings Construction filed its first amended petition alleging that as a result of Klein Steel’s failure to perform the subcontract, it had “incurred cost overruns in the amount of $59,906.68.”

After a one-day bench trial, the trial court found in favor of Stallings Construction in the amount of $55,841.67, together with attorney’s fees in the amount of $9,736.00 and legal interest from date of judicial demand. The trial court further ordered that there be judgment in favor of Stallings Construction against Klein Steel in the amount of $17,500.00 “which represents the difference between the contract price between the parties ($75,000.00) and direct payments ($92,500.00) to subcontractor, Ruben Diego.” Klein Steel now appeals this final judgment.

On appeal, Klein Steel alleges the following three assignments of error: (1) whether the trial court erred in finding Klein Steel breached the contract with Stallings Construction; (2) whether the trial court erred in calculating Stallings | .^Construction's cost overruns in the amount of $55,841.67; and (3) whether the trial court erred in refusing to award Klein Steel any amount for unpaid labor costs.

STANDARD OF REVIEW

In Louisiana, appellate courts review both law and facts. La. Const. Art. V, Sec. 10(B). The standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. To reverse a fact finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, 617 So.2d at 882-883. Accordingly, where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Sto-bart, 617 So.2d at 883. Further, when a fact finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). The credibility determinations of the trier of fact are subject to the strictest deference under the manifest error-elearly wrong standard. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1313. The standard of review for a damage award for breach of contract is whether the trial |4court abused its discretion. Taaffe v. Factory Direct Installations, Ltd., 2008-0175, p. 14 (La.App. 4 Cir. 04/15/09), 13 So.3d 562, 569.

DISCUSSION

In its first assignment of error, Klein Steel argues that Stallings Construction breached the initial contracts when it started paying Ruben (its own steel erection subcontractor) directly. Specifically, Klein Steel argues that Stallings Construction sent a letter to it on December 22, 2008 stating that Stallings Construction intended to pay Ruben $92,500.00 when Klein Steel had already negotiated a contract to pay Ruben $75,000.00.

Stallings Construction argues that because Klein Steel could no longer afford to pay Ruben, it elected to pay him to avoid having him leave the job and cause additional delays. Stallings Construction argues that both contracts allow for it to “remedy the ‘default’ on Klein Steel’s part (not paying its own subcontractor for work performed, or materials and labor provided) by ‘whatever means Contractor may deem necessary or appropriate.’ ”

After reviewing the contracts at issue, as well as Russell Klein’s testimony, we find no merit in Klein Steel’s argument that Stallings Construction breached the initial contracts. Mr. Klein testified that he was in financial difficulty before the job started and that he asked Stallings Construction to pay Ruben once he was unable to do so. Further, both contracts provide:

13. DEFAULT. Should Subcontractor fail in the performance or observance of any of the covenants, conditions, progress, or other terms of this Subcontract, or fail in any respect to diligently commence or prosecute the work ..., Contractor shall, after giving Subcontractor notice of default and 24 hours within which to cure, have the right to exercise any one or more of the following remedies:
Is(a) The Contractor may remedy the default by whatever means Contractor may deem necessary or appropriate including, but not limited to correcting, furnishing, performing, or otherwise completing the Work, by itself, or through others, and deducting the cost thereof from any monies due or to become due to Subcontractor hereunder;

Accordingly, the contracts at issue allow Stallings Construction, as Contractor, to remedy the “default” on Klein Steel’s part by paying Ruben directly to keep the job moving forward.

In its second assignment of error, Klein Steel argues that Stallings Construction failed to carry the burden of proving its alleged damages. Specifically, Klein Steel argues that the cost overrun was initially calculated to be $23,228.72, but that it doubled to $55,841.67 during trial. We find no merit in this assignment of error.

Klein Steel was placed in default on January 28, 2009. Thereafter, the project was completed by Ruben and his steel crew (paid directly by Stallings Construction) and the hiring of a new steel fabricator. Although the initial cost overrun was calculated to be $23,228.72, Stallings Construction filed exhibits into the record verifying that the steel roof (constructed under Klein Steel’s supervision) was leaking and that a warranty would not be issued by the manufacturer until it was corrected. Thus, additional costs and expenses were incurred in correcting the steel roof defects that caused a new and final cost overrun of $55,841.67 to be calculated. After reviewing the record, and the fact that Klein Steel failed to introduce any evidence at trial to rebut the cost overrun calculation, we find that the trial court correctly awarded Stallings Construction $55,841.67.

|Jn its third assignment of error, Klein Steel argues that it should have been awarded an amount for its labor because the building was 90 to 95% complete when it left the job. We find no merit in this assignment of error.

Although Klein Steel states that Aaron Middleberg (Stallings Construction’s project manager) testified that the building was 90 to 95% complete on January 28, 2009 when Klein Steel left the job site, Mr. Middleberg further stated that the remainder of the project to be completed by Klein Steel under both subcontracts “was a mess.” Specifically, Aaron Middleberg testified as follows:

Q. Okay. And, at that point, what percentage of the building, the metal building itself should have been completed?
A. A hundred percent.
Q. What percentage was completed?
A. I can’t say an exact for sure.
Q. An approximation?
A. Maybe 90, 95 percent.
Q. On January 28?
A. Yeah.
Q. And what about the miscellaneous steel, the second floor steel and the stairs and that type of thing, where should they have been?
A. It should have been a lot further than it was. I don’t know an exact percentage on that, but it was far from complete. It was a mess.
Q. What do you mean by that?
A. It — it took us several weeks to sort through it after Klein Steel had left to get it organized and get production back up and going.

|7Further, Klein Steel had been placed in default and as a result, Klein Steel was not entitled to any payments. As stated in the subcontracts regarding a default:

Section 13(d) The Contractor may terminate this Subcontract Agreement and take possession of the Work (including the Subcontractor’s materials, tools, plant, equipment and appliances used or to be used in connection therewith, whether on or off the site) and cause the entire remaining Work to be finished and the materials therefore to be furnished by another subcontractor or subcontractors as may be deemed appropriate by the Contractor. In this event, the Subcontractor shall not be entitled to any further payment whatsoever. If the expense incurred by the Contractor in finishing the Work (including but not limited to overhead, attorney’s fees, damages, court costs, interest, and/or penalties incurred through the default of the Subcontractor) plus the amount paid the Subcontractor hereunder shall exceed the Price, the Subcontractor shall pay the excess to the Contractor within thirty (30) days after receipt of written notice demand thereof....

The record is also void of any evidence to prove Klein Steel’s losses. Thus, under these facts, we do not find that the trial court erred when it failed to award Klein Steel for its labor.

Accordingly, we hereby affirm the judgment of the trial court, which found in favor of Stallings Construction and awarded it $73,341.67, together with $9,736.00 in attorney’s fees.

AFFIRMED

      . The district court awarded $55,841.67 plus $17,500.00, which represents the difference between the contract price between the parties ($75,000.00) and direct payments ($92,-500.00) to subcontractor, Ruben Diego.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Timothy G. McCARTHY.
    No. 2012-KA-0342.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

11 The defendant-appellant, Timothy McCarthy, pled guilty to three counts of simple burglary resulting from the theft of copper pipes and wiring. As a result of the guilty plea, he was sentenced to probation and ordered to pay restitution in the amount of $25,000. On appeal, he contends that the amount of restitution is excessive. For the reasons that follow we affirm the defendant’s sentences.

Procedural History

The State filed a bill of information charging the defendant with three counts of simple burglary, violations of La. R.S. 14:62, committed within a two-week time span against the same victim, Norfolk Southern Railroad, at the same location. At arraignment, he and the State entered into a plea bargain in which he entered pleas of guilty as to all three counts and was sentenced on each count to two years at hard labor. Pursuant to the bargain, the trial court suspended each sentence and placed the defendant on three years active probation. The court directed that all sentences run concurrently. The court also set the matter for a hearing to determine restitution.

After taking testimony as to the costs to replace the copper and repair the damage caused by its removal, the court recessed the matter and directed the State pto determine if the victim had made any insurance claims. When the matter resumed, the court set the amount of restitution at $25,000 as a special condition of probation. The court also amended the defendant’s sentences to be three years at hard labor, suspended, and five years active probation. On November 3, 2011, the defendant through counsel filed a motion to appeal, which was granted.

After the appellant’s brief was filed, the State filed a motion to suspend the briefing schedule, which was denied. Then the State filed a motion to remand, which was granted, and the matter was remanded for the purpose of allowing the trial court to conduct an evidentiary hearing on whether the increase in the defendant’s sentence on October 14, 2011 violated his plea bargain, as the appellant alleged in his brief. The trial court was further ordered to determine the appropriate relief if it concluded that the terms of the plea agreement had been violated.

On remand, the defendant appeared in the trial court for resentencing. At that time the trial court addressed a rule to show cause, filed by his probation officer, why his probation should not be revoked. The defendant waived a hearing and admitted to the allegations in the rule. The trial court then revoked the defendant’s probation, set aside the sentence of October 14, 2011, which exceeded the terms of the plea bargain, and sentenced the defendant to serve two years at hard labor, all counts to run concurrently. Following this action by the trial court, the parties were notified by this Court that the case was no longer on remand.

|sOn appeal, the defendant contends that the trial court erred when it set restitution in the amount of $25,000, averring that the evidence presented at the hearing does not support that amount and that the defense was not allowed to properly inspect the property in order to develop evidence of the victim’s loss.

Restitution is provided for in article 895 and 895.1 of the Louisiana Criminal Code. The restitution provided for in La.C.Cr.P. art. 895(A)(7) and La.C.Cr.P. art. 895.1 are both conditioned on the defendant receiving probation, which the defendant in the instant case did.

A review of the record indicates that the defendant failed to preserve for review the issue of an excessive sentence. Prior to appealing an excessive sentence, a motion to reconsider sentence must be filed within thirty days of sentencing as required by La.C.Cr.P. art 881.1. In addition, this Court has held |4that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. The failure to file a motion to reconsider sentence also precludes review on appeal of the issue of restitution imposed. See State v. Lambert, 2011-2006, p. 12 (La.App. 1 Cir. 6/8/12), 93 So.3d 771, 778. The defendant’s “failure to make or file a motion to reconsider sentence precludes him from raising an objection on appeal.” State v. Felder, 2000-2887, p. 10 (La.App.1Cir.9/28/01), 809 So.2d 360, 369; see also, LSA-C.Cr.P. arts. 881.1(D) and 881.2(A)(1). Thus, the defendant’s arguments concerning restitution are not properly before this Court.

The failure to file a motion to reconsider sentence is the basis of the defendant’s assertion that his trial counsel was ineffective. More specifically, the defendant claims that he was initially given a sentence that was in excess of his plea bargain and that the amount of restitution he was ordered to pay was excessive for someone of his indigent status. Additionally, counsel’s failure to file a motion to reconsider sentence prohibits appellate review of the ordered restitution.

Generally, claims of ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court, where an evidentia-ry hearing can be conducted if warranted, unless the record on appeal is sufficient to make the determination. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802; State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147. Ineffective assistance of counsel claims are | .^reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, the defendant must show both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency. State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741.

As to the increase in the defendant’s sentence from two years to three years suspended, while it is certainly arguable that counsel’s conduct was deficient in not pointing out to the court that the plea bargain called for a two-year suspended sentence, the defendant cannot demonstrate any prejudice in light of the trial court’s set a two-year sentence on remand.

The defendant further contends that he was prejudiced by counsel’s deficiency in not filing a motion to reconsider sentence specifically related to the amount of restitution. In general, it is not a violation of an indigent’s due process rights to be ordered to pay restitution, and in fact various statutes require that restitution be ordered. The defendant’s primary argument regarding counsel’s failure to file a motion to reconsider sentence relates to the amount of restitution that was ordered. More specifically, the defendant claims that the restitution was set at an amount that he would never be able to satisfy and, thus, he would be subject to having his probation revoked. Equally important, because a motion to reconsider sentence was not filed, this issue was not preserved for appeal.

When this matter was remanded to the trial court for correction of the defendant’s sentence, his parole was revoked. The revocation was a result of a [fimotion to revoke probation filed by the defendant’s probation and parole officer. Presumably, the revocation was based on non-payment of restitution, but we cannot say with certainty since the motion is not included in the record. Although the defendant’s argument that he was prejudiced may have merit, we find the record on appeal is insufficient to adequately address the defendant’s claim of ineffective counsel and, therefore, the issue is more appropriately addressed in an application for post-conviction relief.

For the reasons discussed, Timothy McCarthy’s sentences are affirmed.

AFFIRMED

      . In the appellee's Motion to Remand, the State acknowledged that the increase in the sentence was a violation of the defendant’s plea bargain and asked that the matter be remanded "to the trial court to conduct a hearing on this limited issue.”

      . Testimony presented at trial established it would cost approximately $40,000 to replace the copper and repair the damage caused by its removal.

      . La.C.Cr.P. art. 895 provides in pertinent part:
      A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:

      (7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court; ...
      La.C.Cr.P. art. 895.1 states in pertinent part: A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in [sic] discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

      B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:

      (5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.

      . State v. Jenkins, 2009-1551 (La.App. 4 Cir. 6/30/10) 45 So.3d 173; State v. Stewart, 2004-2219 (La.App. 4 Cir. 6/29/05), 909 So.2d 636; State v. Rodriguez, 2000-0519 (La.App. 4 Cir. 2/14/01), 781 So.2d 640; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767.

      . This Court acknowledges that the sentence initially imposed by the trial court exceeded the plea bargain entered into by the defendant and the State. That specific issue was addressed on remand.