author: STEPHEN J. WINDHORST, Judge.

text:
    Heidi V. RUTLAND v. William J. RUTLAND.
    No. 13-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.

      Michael K. Heltz, Adam J. Koenig, Attorneys At Law, Gramercy, LA, for Plain-tiffAppellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ¡Appellant, Heidi Rutland, seeks review of the trial court’s judgment establishing a final child support award. For the following reasons, we affirm.

PROCEDURAL HISTORY AND EVIDENCE

Ms. Rutland and Mr. Rutland were married on June 1, 2002. One child was born of their marriage on August 12, 2003. The parties separated on March 10, 2010. Ms. Rutland filed a petition for divorce on February 7, 2011, and requested custody of her minor son, subject to supervised visitation and child support. A hearing on the ancillary matters was initially scheduled for March 14, 2011, but was continued to April 11, 2011, at the request of Mr. Rut-land’s counsel.

At the April 11, 2011 hearing, Mr. Rut-land testified that he was previously employed with the St. James Parish Sheriffs Office (“Sheriffs Office”) for eight years. He further testified that he was fired from the Sheriffs Office for sleeping on the job and he was denied unemployment as a result. Mr. Rutland testified that he was currently unemployed although he had applied for several jobs. He also testified that he had to sell his house and he moved to Mississippi where he currently resides with his parents, rent free. He explained that his parents helped him out by giving him money when he needed it, the largest amount being sixty dollars at a given time. He testified that the money was a gift and not a loan from his parents.

|sOn April 11, 2011, the trial court rendered judgment granting Ms. Rutland interim child support in the amount of $200 per month based on Mr. Rutland’s unemployed status and the child support guidelines. The judgment further ordered a review to be set within 90 days to determine Mr. Rutland’s employment status and to re-evaluate child support after the parties completed a custody evaluation.

On November 11, 2011, Mr. Rutland filed a rule to show cause why a divorce should not be granted. The rule was set for December 12, 2011, but was continued to February 13, 2012, by Ms. Rutland’s counsel. The rule was again continued to June 11, 2012, by counsel for Mr. Rutland. On March 30, 2012, Ms. Rutland filed a rule to show cause why divorce should not be granted and requested a hearing to increase interim child support with a retroactive date to the date of judicial demand. The rule was scheduled for May 14, 2012, but was continued to June 11, 2012, by Mr. Rutland’s counsel.

A judgment of divorce was rendered on June 11, 2012, with the trial court deferring all other ancillary matters to be heard on August 13, 2012. The judgment additionally ordered Ms. Rutland to comply and complete the custody evaluation and to produce her income earning documents for the last two years by August 1, 2012. On August 1, 2012, the trial court continued the ancillary matters to September 10, 2012. After a joint request of counsel, the matter was again continued and reset for September 12, 2012.

On September 12, 2012, the parties appeared before the trial court to determine custody and child support. Mr. Rutland testified that he was fired from the Sheriffs Office for sleeping on the job. He further testified that he applied for jobs at Shell Geismer and at all the plants, but was not offered a job. He also | ¿testified that in March 2011, he sold his house and moved to Mississippi to live with his parents. He testified that he primarily moved in with his parents to help his mom take care of his dad who has a medical condition. He further testified that he does not pay rent to his parents; however, he pays for his own food, gas, and all other necessary needs. Mr. Rutland testified that he occasionally received funds from his parents as a gift when he needed help, but does not currently receive any funds from them.

Mr. Rutland further testified that he started working at Consolidated Container Company in May 2011. He worked as an operator making plastic bottles until December 16, 2011, when he was fired for missing a “dye line” on the bottles. He also admitted that he signed a daily check report which contained false information. He testified that he made $15.00 an hour as an operator.

Mr. Rutland also testified that he started working at Dixie Packaging Incorporated in January 2012. He started out at $9.00 an hour, but he currently makes $9.50 an hour, plus 16 hours overtime at a rate of $14.25 an hour each paycheck. Mr. Rutland testified that even though he is currently employed with Dixie Packaging, he is still looking for employment with a higher rate of pay. He has applied for employment at several places, including Georgia Pacific where the starting income is $18.00 an hour. However, he testified that he has not received any job offers that have a higher pay rate than his present employment with Dixie Packaging.

Additionally, Mr. Rutland admitted that he cleared over $9,000.00 from the sale of his house in 2011. He testified that he was not aware that Ms. Rutland’s counsel had requested that he hold off on the sale or escrow the funds.. He conceded that he did not give Ms. Rutland any funds from the sale of the house. Mr. Rutland further admitted that he withdrew his pension in the amount of|r,$19,051.00 sometime around October 2011 through the end of the year. He testified that he received around $15,000.00 after 20% was taken out for taxes. He conceded that he did not give any funds to Ms. Rutland even though the majority of his pension was earned during his marriage. He further testified that he used the funds received from his pension and the sale of his house to pay off prior judgments, mortgages and other bills and that he used the rest of the money for his personal expenses since he was unemployed at that time.

The trial court found that Mr. Rutland was underemployed due to being terminated from two jobs, the Sheriffs Office and Consolidated Containers. The trial court found that Mr. Rutland currently makes $9.50 an hour, plus 16 hours overtime at a rate of $14.25 an hour each paycheck for an average monthly income of $2,141.00. The trial court further found that Mr. Rutland averaged $4,446.00 per month at the time of his termination with the Sheriff’s Office, based on a W-2 form showing earnings of $43,013.00 for an approximately nine-month period of time. Additionally, the trial court noted that it may be difficult for Mr. Rutland to find a job earning the same rate of pay as he earned with the Sheriffs Office. As a result, the trial court attributed an additional $859.00 per month to Mr. Rutland for a monthly income earning potential in the amount of $3,000.00.

The trial court further acknowledged that Mr. Rutland withdrew funds from his pension and netted $15,000.00, as well as netting $9,419.38 from the sale of his separate home in March 2011. However, the trial court found that these amounts | ¿were not ongoing sources of income since the court was setting child support as of September 12, 2012. The trial court noted that Ms. Rutland retains her right to assert her community interest in Mr. Rut-land’s pension and possible reimbursement for the sale of the house.

Based on Ms. Rutland’s stipulated income of $5,535.00 per month and Mr. Rutland’s income earning potential of $3,000, plus amounts owed for insurance, the trial court calculated and awarded Ms. Rutland child support in the amount of $474.90 per month, effective September 12, 2012. The court also found that good cause did not exist to make the award retroactive to the date of judicial demand. In discussing good cause, the trial court found that Mr. Rutland consistently paid the interim child support of $200.00 timely and was never in arrears. The court further found that the 90 day review of the child support did not take place because Ms. Rutland failed to comply with the interim order by failing to complete her custody evaluation timely and the matter was not set within 90 days. The trial court noted that if Ms. Rutland had complied, a final child support award could have been set sooner. It is from this judgment that Ms. Rutland appeals.

RETROACTIVITY OF CHILD SUPPORT AWARD

In her first assignment of error, Ms. Rutland contends that the trial court erred in refusing to make the child support award retroactive to the date of judicial demand. Ms. Rutland contends that Mr. Rutland misled the trial court to believe that from the date of his termination with the Sheriffs Office until the April 11, 2011 hearing, he was unemployed, he had no income, and was supported by gifts of money from his parents. Ms. Rutland argues that Mr. Rutland testified |7untruthfully and did not inform the court of his net gain from the sale of his house and from the withdrawal of his pension. Ms. Rutland further contends that since Mr. Rutland misled the court to believe his income was substantially lower than it was, she is entitled to have the child support award made retroactive to the date of judicial demand.

La. R.S. 9:315.21 sets forth the circumstances when a court may make a child support award retroactive. La. R.S. 9:315.21 provides in pertinent part:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.

Prior to Vaccari v. Vaccari, 10-2016 (La.12/10/10), 50 So.3d 139, appellate courts consistently held that a final award of child support was not retroactive to the date of judicial demand when an interim award of child support had been in effect. The Supreme Court in Vaccari held' that “upon a showing of good cause, a trial court may order a final child support award retroactive to the date of judicial demand even though there has been an interim award in effect.” Vaccari, 50 So.3d at 143.

In Vaccari, Mr. Vaccari represented to the court, through an affidavit, that his net income for the year was $262,273.00 and the trial court awarded Ms. Vaccari interim child support based on this figure. Id. at 141. After an antagonistic discovery process wherein both parties accused the other of withholding relevant financial information, including tax returns and corporate | ¿records, the trial court appointed an expert to determine each party’s net income. Id. The court’s expert found that Mr. Vaccari’s net income was significantly higher than represented to the court. Id. at 141-142. The court’s expert further recommended that the monthly child support award be $16,546.00, retroactive to the date of filing. Id. at 142. The trial court adopted the expert’s recommendation. Id. at 141-142. Mr. Vaccari appealed the judgment which was affirmed in part and amended in part. Id. The court of appeal held that La. R.S. 9:315.21 did not allow a trial court to render a final child support award retroactive to the date of judicial demand when there is an interim child support award in effect. Id.

The Supreme Court found that Mr. Vac-cari made several attempts to hide the significant wealth he controlled in the companies he owned. Id. at 144. The Supreme Court further noted that “through his own obfuscatory tactics, Mr. Vaccari was able to temporarily mislead the trial court into believing his means were far lower than they actually were. As a result he avoided paying over $500,000 in rightly owed child support.” Id. at 144. The Supreme Court reversed and reinstated the trial court judgment finding that

... the relevant statute does not forbid a court from rendering a final child support award retroactive, and good cause exists for the trial court to do so here. This is not to say a final child support award must be retroactive, or even that it should be made retroactive in every proceeding. But in cases such as this one, where a party files a false affidavit in an effort to avoid the full extent of his child support obligation, it is only proper to make the award retroactive so he will not benefit from his own misdeeds. Id. at 140.

In the case now before us, however, the record does not support a finding of misrepresentation of material facts or other misdeeds by Mr. Rutland to such an extent as to justify a conclusion that the trial court abused its discretion in applying the Vaccari standard. We conclude that the trial court did not err in finding that good cause did not exist to make the child support award retroactive to the date of 1 ¡judicial demand. Clearly the facts of this case do not rise to the level of atrocious misrepresentations that led to the holding in Vaccari. Accordingly, this assignment of error is without merit.

CALCULATION OF CHILD SUPPORT

In her second assignment of error, Ms. Rutland contends that the trial court erred in calculating Mr. Rutland’s child support obligation based on a gross income of $3,000.00 per month, considering the fact that the court found him voluntarily underemployed. Specifically, Ms. Rutland argues that the trial court erred in refusing to use Mr. Rutland’s income with the Sheriffs Office as his income earning potential for the purpose of calculating child support, and his income earning potential should have included funds received from Mr. Rutland’s withdrawal of his pension and capital gains received from the sale of the house, retroactive to the date of judicial demand.

A child support award is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Dufresne v. Dufresne, 10-963 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 754. La. R.S. 9:315C(3) sets forth the definition of “gross income,” as follows:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation.

La. R.S. 9:315C(5)(b) provides that for the purpose of child support calculations, “income” includes:

(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the | ¡¡¡unemployment or underemployment results through no fault or neglect of the party.

La. R.S. 9:315.11A provides that if a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. The wage earned prior to voluntary underemployment is the best estimate of earning potential. Saacks v. Saacks, 05-365 (La.App. 5 Cir. 9/26/06), 942 So.2d 1130, 1138. Whether a party is voluntarily unemployed or underemployed is a question of good faith of the party to be cast with paying the child support award. Anderson v. Anderson, 11-864 (La.App. 5 Cir. 5/31/12), 96 So.3d 1278, 1281. Voluntary underemployment is a fact-driven consideration. Id. The trial court is given wide discretion in determining the credibility of witnesses and its factual determination will not be disturbed on appeal absent a showing of manifest error. Id.

It is undisputed that Mr. Rutland was fired from his employment with the Sheriffs Office and Consolidated Containers due to his own fault. It is also undisputed that Mr. Rutland’s average monthly income with Dixie Packaging is considerably less than his average monthly income was with the Sheriffs Office. Considering the facts adduced, we do not find that the trial court was manifestly erroneous in determining Mr. Rutland was voluntarily underemployed.

Based on a review of the record, we further find that the trial court did not err in declining to use Mr. Rutland’s income from his prior employment with the Sheriffs Office to determine his income earning potential. Mr. Rutland was employed with Consolidated Containers after his termination with the Sheriffs Office, but prior to his current employment with Dixie Packaging. Mr. Rutland testified that he applied for numerous jobs, including the East Baton Rouge |, Sheriffs Office, Geis-mer Shell, and other plants, but he was not offered employment. He further testified that even though he was employed with Dixie Packaging, he was still looking for employment at jobs with a higher pay rate, including Georgia Pacific which has a starting pay of $18.00 an hour. The trial court noted that it did not believe that Mr. Rutland would be able to obtain employment at the same rate that he received with the Sheriffs Office. Considering the facts of this case, we find that the trial court did not err in determining that a reasonable income earning potential for Mr. Rutland would be $3,000.00 a month. Accordingly, the trial court did not err in awarding Ms. Rutland child support in the amount of $474.90 per month.

Additionally, the funds Mr. Rut-land received from the withdrawal of his pension and capital gains received from the sale of his house were not ongoing sources of income on the date child support was established on September 12, 2012. Ms. Rutland retains her right to assert any community interest in Mr. Rut-land’s withdrawal of his pension and possible reimbursement for the sale of the house. Accordingly, this assignment of error is without merit.

CONCLUSION

For the above stated reasons, we affirm the trial court’s judgment awarding child support to Ms. Rutland in the amount of $474.90 per month, effective September 12, 2012.

AFFIRMED

      . The interim judgment was signed on May 21, 2011. The interim judgment additionally addressed custody which is not appealed.

      . This is a mathematical miscalculation by the trial court of Mr. Rutland’s average monthly income. The proper calculation should have been $1,976.00 based on Mr. Rutland's income from his paycheck stub from Dixie Packaging Incorporated.

      .The transcript reveals that the trial court erroneously stated that Mr. Rutland’s gross income in 2010 was $43,013.00. Mr. Rut-land’s W-2 reveals that his gross income was $40,013.64, which is the amount the trial court used to calculate Mr. Rutland’s average monthly income of $4,446.00 for an approximately nine month period of time. Mr. Rut-land was terminated from the Sheriff’s Office on October 21, 2010. Based on 9.659 months (294 days), Mr. Rutland’s average monthly income at the Sheriff's Office in 2010 would be $4,142.63.

      . Based on Mr. Rutland’s correct average monthly income of $1,976.00, $1,024.00 a month would be the correct amount attributable to Mr. Rutland for a monthly income earning potential in the amount of $3,000.00.

      . It was stipulated that Ms. Rutland receives VA disability in the amount of $1,397.00 per month and $4,138.00 per month from the St. James School Board.

      . The judgment also terminated interim child support, and ruled on custody and extraordinary medical and dental bills, which are not appealed.

      . We note that if Mr. Rutland obtains a job working for $18.75 an hour, his average monthly income would be $3,000.00.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kip A. HUNTER.
    No. 13-KA-82.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Jarred Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2On June 13, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kip A. Hunter, with fourth offense driving while intoxicated in violation of La. R.S. 14:98(A)(E). Defendant pleaded not guilty and moved to quash two prior predicate DWI convictions. The trial court denied the motion to quash and defendant sought supervisory review with this Court. This Court denied relief. State v. Hunter, 12-233 (La.App. 5 Cir. 3/9/12) (unpublished writ disposition).

Thereafter, defendant withdrew his plea of not guilty and entered a plea of guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to appeal the denial of his motion to quash. The trial court thereafter sentenced defendant to ten years imprisonment at hard labor; suspending all but two years, to be served without the benefit of probation, parole, or suspension of sentence. Following completion of the two years at hard labor, the court placed defendant on active probation for five years and ordered defendant to complete 40 eight-hour days of community service, to submit to a substance abuse Devaluation, and to submit to treatment in an inpatient facility for a period of at least four weeks to be followed by outpatient treatment for a period not to exceed 12 months. Additionally following completion of the inpatient treatment, defendant was ordered to be placed on home incarceration for two years of the probationary period. The court further fined defendant $5,000.00 and ordered him to pay all costs and fees associated with home incarceration and probation. The court also ordered defendant’s vehicle seized and sold at auction, if applicable, and ordered an interlock device installed in any vehicle defendant may operate during his probation. The court informed defendant that he is required to obtain employment and to participate in a court-approved driver improvement program at his expense upon his release from the Department of Corrections. The court further instructed that defendant’s activities outside the home during home incarceration are limited to travel to and from work, church services, Alcoholics Anonymous meetings, and the driver improvement program. The trial court granted defendant’s motion for appeal.

Discussion

Assignment of Eiror No. 1

In his first assignment of error, defendant argues the trial court erred in denying his motion to quash. He contends that because two of his predicate DWI convictions were consolidated, thereby exposing him to two consecutive six month terms of imprisonment, i.e., one year, he was entitled to a trial by jury. He was not advised of this right and he pleaded guilty to both charges. As a result, he claims his pleas were invalid and ineligible to serve as predicates for the charged offense.

In response, the State argues that relief should be denied under law of the case since this Court previously ruled on this issue in defendant’s writ application. In the alternative, the State argues that defendant’s claim is meritless.

|4We agree with the State and find defendant is not entitled to appellate review of this issue based on the doctrine of law of the case. Under this doctrine, an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Petos, 11-862, p. 4 (La.App. 5 Cir. 5/22/12), 96 So.3d 1240, 1242. The law of the case doctrine is discretionary. Id.; See State v. Woodhead, 03-1036, p. 10 (La.App. 5 Cir. 1/27/04), 866 So.2d 995, 1001, writ denied, 04-0598 (La.7/2/04), 877 So.2d 144 (“A ruling denying supervisory writs does not bar reconsidering the issue on appeal and reaching a different conclusion.”). Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Pettus, 11-862 at 4, 96 So.3d at 1242-43.

This Court previously reviewed the denial of defendant’s motion to quash in defendant’s writ application. This Court denied relief with the following disposition: “On the showing made, we find no error in the trial court’s denial of relator’s motion to quash the bill of information. Accordingly, this writ application is denied.” State v. Hunter, supra.

By this assignment of error, defendant effectively seeks to have this Court reconsider its prior ruling. However, defendant has not presented any evidence to indicate that the issue is now different, nor is any such difference evident from the record. In fact, the only major development since this Court’s prior ruling was defendant’s guilty plea. And in cases in which a defendant, who has pleaded guilty, seeks appellate review of an issue previously denied in a supervisory writ application, this Court has invoked law of the case and declined to revisit the issue on appeal. See, e.g., State v. Lewis, 10-1022 (La.App. 5 Cir. 9/27/11), 75 So.3d 495, 501; State v. Louis, 05-141, p. 4 (La.App. 5 Cir. 7/26/05), 910 So.2d 464, 466-67; State v. Holliman, 04-1195, pp. 3-4 (La.App. 5 Cir. 3/29/05), 900 So.2d 999, 1001. Moreover, defendant has not presented any new evidence to indicate this Court’s previous ruling was patently erroneous or produced unjust results.

Louisiana Constitution Article 1, Section 17 mandates that a case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. Further, La.C.Cr.P. art. 799 provides:

A. A defendant charged with a misdemeanor in which the punishment as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

With respect to defendant’s prior misdemeanor convictions, defendant was twice charged and convicted of La. R.S. 14:98. The offenses for which he was convicted occurred on separate dates (October 3, 1998 and November 3, 1998), and defendant was charged by separate bills of information. Each case was assigned its own docket number (S691680 and S696902, respectively), and the matters were maintained as separate records. Although defendant pleaded guilty in both cases on the same date, separate minute entries were maintained for each docket number, separate Waiver of Rights forms were executed, separate sentences were imposed, and separate Commitment orders were prepared. At no point were the two cases ever consolidated but were always maintained separately. See State v. Comeaux, 408 So.2d 1099 (La.1981). As the two predicate convictions arose from two separate cases, defendant had no right to a trial by jury as to either challenged predicate conviction. As such, the trial court properly denied defendant’s motion to quash and we decline to reconsider our previous ruling on appeal.

|(⅜Assignment of Error No. 2

In his second assignment of error, defendant claims that his sentence is indeterminate because the trial court did not specify the duration he is to serve in an inpatient treatment facility. During sentencing, the trial court ordered that defendant submit to treatment in an inpatient facility for a period of “at least four weeks.” Defendant argues that the language “at least” renders the sentence indeterminate.

In Louisiana, “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” La. C.Cr.P. art. 879. At the time of the offense, La. R.S. 14:98(E)(l)(b)(i) provided in pertinent part that a fourth DWI offender must ...

... immediately undergo an evaluation by the Department of Health and Hospitals, office of behavioral health to determine the nature and extent of the offender’s substance abuse disorder and to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks followed by outpatient treatment services for a period not to exceed twelve months.

(Emphasis added).

In support of his argument, defendant cites State v. Bellow, 08-259, p. 20 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, 318, writ denied, 08-2109 (La.4/13/09), 5 So.3d 162, in which this Court found the defendant’s sentence was indeterminate because the trial court ordered that “at least 5 years” of the sentence be served without benefit of probation, parole, or suspension of sentence. Bellow, however, is factually distinguishable from the instant case.

In Bellow, the portion of the sentence to be served without benefits is determined and imposed by the trial court. See La. C.Cr.P. art. 871(A) (“A sentence is the penalty imposed by the court_”) (Emphasis added). Therefore, |7the trial court was required to impose a determinate sentence. The term “at least” rendered the sentence indeterminate.

Conversely, in the instant case, the amount of time served in the inpatient treatment facility beyond the minimum four week period by statute is determined by the office of behavioral health, not the trial court. The statute provides that defendant is “to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks.” The statute specifies the minimum, i.e., four weeks; any amount of time beyond that is to be “approved” by the office of behavioral health. Therefore, the trial court did not err in imposing sentence in conformity with the statute. Indeed, this Court has affirmed a DWI third offender’s sentence that included treatment in an inpatient facility for “not less than four weeks.” See State v. Ducote, 05-910 (La.App. 5 Cir. 3/28/06), 927 So.2d 503. In view of the foregoing, we find that defendant’s sentence is not indeterminate.

This assignment of error lacks merit.

Error Patent

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

A review of the record reveals that the trial court failed to make any mention of electronic monitoring, curfew restrictions, or home visitation as required by La. R.S. 14:98(E)(3)(a). Also, the record does not reflect that defendant was given a certificate of conditions of home incarceration, as required by La. R.S. 14:98(E)(3)(c) and La.C.Cr.P. art. 894.2(D).

In State v. Delanueville, 11-379, pp. 21-22 (La.App. 5 Cir. 2/14/12), 90 So.3d 15, 28-30, writ denied, 12-0630 (La.9/21/12), 98 So.3d 325, this Court found similar deficiencies rendered the sentence illegally lenient. In Delanueville, the trial court failed to order the defendant’s vehicle seized and sold as required by La. R.S. 14:98(E)(2)(a), failed to specify the conditions of home incarceration as required by La. R.S. 14:98(E)(3)(a) and (b), and failed to provide defendant with a certificate of conditions of home incarceration as required by La. R.S. 14:98(E)(3)(c) and La. C.Cr.P. art. 894.2(D). As a result, this Court vacated the sentence and remanded for resentencing. Delanueville, 11-379 at 22, 90 So.3d at 30.

In light of similar deficiencies in defendant’s sentence, we find the sentence is likewise illegally lenient. Consequently, defendant’s sentence is vacated and the matter is remanded for resentencing for clarification and compliance with La. R.S. 14:98(E).

CONVICTION AFFIRMED; SENTENCE VACATED & REMANDED

      . It is well-settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520.

      . The defendant in Delanueville was convicted of DWI-fourth offense. Delanueville, 11-379 at 2, 90 So.3d at 18.


text:
    STATE of Louisiana v. Michael BROOKS.
    No. 13-KA-111.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, David Wheeler, Thomas Sanderson, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

1 ¡.Defendant, Michael Brooks, was charged with distribution of cocaine within 2,000 feet of Lemon Gym and Playground, which is a drug-free zone, in violation of LSA-R.S. 40:981.3. Defendant pled not guilty to this charge and proceeded to trial. A 12-person jury found defendant guilty as charged of distribution of cocaine within 2,000 feet of a drug-free zone. Defendant was sentenced to 15 years imprisonment at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence.

Thereafter, the State filed a multiple offender bill of information, alleging that defendant was a second felony offender. After defendant stipulated that he was a second felony offender, his original sentence was vacated, and he was sentenced as a second felony offender to 22½ years imprisonment at hard labor. The sentence was ordered to be served without benefit of probation or suspension of sentence, with the first two years to be served without benefit of parole as well. Defendant appeals.

FACTS

On September 8, 2011, Deputy Jorge Rico of the Jefferson Parish Sheriffs Office acted as an undercover agent, “Louis Cain,” and purchased $40.00 worth of crack cocaine from a black male in the Shrewsbury area. Deputy Rico first made contact with the seller at 3033 Andover Street in Jefferson Parish and was told to |a“make the block.” He drove around the block, stopped next to 3024 Westbury, and the transaction took place on the street. The seller was not arrested at that time for safety reasons.

Deputy Rico’s vehicle was equipped with audio and video recording and a two-way communicator radio. A video of the transaction was captured, but the seller covered his face at the time of the transaction. However, Deputy Rico was able to clearly see the seller’s face before the transaction. After the transaction, Deputy Rico gave a physical description of the seller, noting that he had “gold on the uppers” and “scars on his left forearm.”

Deputy Rico presented the evidence of the transaction to the case agent, Detective Stacey Taranto of the Jefferson Parish Sheriffs Office. Testing confirmed that the two off-white, rock-like objects contained cocaine. Detective Taranto “ran” the 3033 Andover Street address that Deputy Rico provided to him, and she received several results, including defendant’s name. Of the names associated with the address, three of the individuals were black males. Based on Deputy Rico’s description of the suspect, defendant’s photograph was included in a photographic lineup.

On October 12, 2011, Detective Taranto presented a photographic lineup to Deputy Rico, who identified defendant as the seller of the crack cocaine. Deputy Rico also identified defendant in court as the individual who sold him the cocaine. During trial, defendant was asked to show the jury his teeth and to roll his sleeves back. He complied.

|4The video of the transaction was also played for the jury. The video shows that another individual was present at the time of the transaction and handed the seller the narcotics. However, this individual did not approach the vehicle, and Deputy Rico was never able to identify him.

Detective Taranto created a Google Earth map of the location where the transaction took place and determined that the transaction was within 2,000 feet of Lemon Playground. The distance between the drug transaction at 3024 Westbury Street and Lemon Playground at the 1100 block of Shrewsbury Road in Jefferson, Louisiana, was 1,303.58 feet. The jury was shown photographs of the Lemon Playground building, which contained a “drug-free zone” sign on it. Detective Taranto also went to the area and believed the map accurately represented the area.

LAW AND DISCUSSION

On appeal, defendant asserts that the evidence was insufficient to support the jury’s verdict. Specifically, he argues that the testimony of the undercover officer and the video during which the seller’s face was covered were insufficient to show that he was the perpetrator of the offense. Defendant concludes that his conviction must be reversed because no rational trier of fact could have found that the State bore its burden of proving the identity of the seller beyond a reasonable doubt.

The State responds that it provided ample evidence identifying defendant as the person who sold crack cocaine to Deputy Rico on September 8, 2011, within 2,000 feet of a drug-free zone. It contends that any rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of the charged offense.

In reviewing the sufficiency of the evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, a reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found the State proved the essential elements of the crime beyond a reasonable doubt. Id.; State v. Price, 00-1883, p. 5 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. See State v. Draughn, 05-1825, p. 8 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Suggs, 11-64, p. 6 (La.App. 5 Cir. 12/13/11), 81 So.3d 815, 821, writ denied, 12-0054 (La.4/20/12), 85 So.3d 1269. Positive identification by one witness is sufficient to support a conviction. Id.

In the present case, defendant was convicted of distribution of cocaine within 2,000 feet of a drug-free zone, in violation of LSA-R.S. 40:981.3. Defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction. Rather, he focuses on identity, and he claims that the State did not negate any reasonable probability of misidentification.

LOUT review of the record reveals that the evidence presented was sufficient to prove that it was defendant who distributed cocaine within 2,000 feet of a drug-free zone on September 8, 2011. After the transaction, Deputy Rico, the undercover agent, was able to give a physical description of the seller, including that the seller was a black male with gold teeth and scars on his left forearm. During trial, defendant was asked to show the jury his teeth and forearms. Deputy Rico also positively identified defendant in a photographic lineup and in court as the seller of the cocaine. Although defendant covered his face at the time of the transaction, Deputy Rico testified that he was able to clearly see the seller’s face before he covered it.

Deputy Rico first made contact with the seller at 3033 Andover Street. After investigation into this address, several names were found to be associated with it, including defendant’s name. Defendant challenges identity in this case, contending that other suspects were linked to this address as well. However, the photographic lineup did not contain photographs of the other individuals associated with the address, because Detective Taranto did not believe the other individuals were involved in the transaction based on Deputy Rico’s description of the suspect.

Defendant complains that the police failed to do an adequate investigation to even identify the second suspect present that date. Although the defense presented a discrepancy regarding the supplemental police report, which reflected that Deputy Rico handed the money for the cocaine to the second suspect, Detective Taranto explained that this was simply a typographical error and that Deputy Rico actually handed the money to defendant. The jury observed the video of the transaction and saw the second suspect, who did not approach the vehicle.

The jury heard the testimony presented at trial regarding the identity of the seller and obviously found that the evidence pointing to defendant as the seller of |7the cocaine was credible. It is the fact-finder’s function to determine the weight of the evidence bearing on the defendant’s identification. State v. Duronslet, 11-486, p. 10 (La.App. 5 Cir. 1/24/12), 87 So.3d 112, 118, writ denied, 12-0472 (La.9/12/12), 98 So.3d 815. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id.

Viewing the evidence in a light most favorable to the prosecution, we find that the State sufficiently negated any reasonable probability of misidentification, and a rational trier of fact could have found, beyond a reasonable doubt, that defendant was the seller of the cocaine in the charged offense. Accordingly, defendant’s assignment of error is without merit.

ERRORS PATENT

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. Our review reveals no errors requiring corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED

      . The bill of information originally charged defendant with distribution of cocaine within 2,000 feet of Lemon Gym. However, the State later amended the bill of information by adding "and Playground” to Lemon Gym.

      . Deputy Rico explained that immediate arrests are rare because additional transactions are conducted through the neighborhood and they have to protect the identity of the undercover agent.

      . The parties stipulated that if Cynthia Dennis was called to the stand, she would testify as the custodian of records for the Louisiana Department of Public Safety Office of Motor Vehicles and would testify as to documents linking defendant to the 3033 Andover Street address in 2010 and 2011.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Corey STEVENSON.
    No. 13-KA-156.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Blair C. Constant, Myles D. Ranier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

12Pefendant, Corey Stevenson, appeals his conviction of possession of a firearm by a convicted felon on the basis that he was denied his right to present a defense. For the reasons that follow, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On May 18, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of a firearm by a convicted felon in violation of LSA-R.S. M^.l. At the May 20, 2011 arraignment, defendant pled not guilty. The matter proceeded to trial before a 12-person jury on May 16-17, 2012. After considering the evidence presented, the jury found defendant guilty as charged. On July 10, 2012, the trial court sentenced defendant to 15 years imprisonment with the Department of Corrections, without the benefit of parole, probation, or suspension of sentence. Defendant now appeals.

|aFACTS

On April 20, 2011, Nelson Brown, pastor of the Second Zion Baptist Church in Mar-rero, was presiding over a funeral when he received word from one of his deacons that someone had entered the church with a gun. The church was over maximum capacity that day, with approximately 500 people attending the funeral. Pastor Brown reported this incident to the police who arrived at the church within minutes of the 911 call.

When the police arrived, a deacon, who wished to remain anonymous, identified the man with the gun by providing the officers with his location and clothing description. Sergeant Fourcade, Deputy Faucetta, and Detective Hoobler located defendant and asked him to accompany them into a separate room in the church. A second person sitting next to defendant was quickly patted down to ensure that the gun had not been passed. While inside the room, Deputy Faucetta began to pat defendant down. During this process, defendant attempted to escape through a side door, but the officers were able to detain him. While attempting to detain defendant, a gun fell out from underneath defendant’s shirt. The officers secured the gun, advised defendant of his Miranda rights, and placed him under arrest.

RIGHT TO PRESENT A DEFENSE

In his sole assignment of error, defendant argues that he was denied his right to present a defense when the trial court prevented him from questioning the State’s witnesses regarding the investigation of Detective Hoobler for civil rights violations and his termination from the police department. Defendant contends that this information went directly towards Detective Hoobler’s credibility and was | therefore relevant and highly probative given the defense’s theory that the gun was planted.

Prior to trial, the State filed a motion in limine seeking to prohibit defendant from questioning any State witnesses regarding Detective Ronald Hoobler’s termination from the Jefferson Parish Sheriffs Office and pending criminal investigation. In its motion, the State indicated that it did not intend on calling Detective Hoobler as a witness at trial. On May 14, 2012, the court conducted a hearing on the State’s motion in limine. At the hearing, the State again asserted that it did not intend on calling Detective Hoobler as a witness at trial. The State farther argued that the facts and circumstances surrounding the pending criminal investigation against Detective Hoobler were irrelevant to the instant case. Additionally, because Detective Hoobler had not been convicted of any crime, the State argued that the evidence should be excluded under LSA-C.E. arts. 608(B) and 609.1. Defendant responded that if Detective Hoobler were to testify, he should be allowed to question him on the pending criminal investigation and termination from the Jefferson Parish Sheriffs Office because it would be relevant to his credibility.

The trial court granted the State’s motion, holding that if Detective Hoobler was not called as a witness, the defense could not question other witnesses about the circumstances surrounding Detective Hoo-bler’s termination from the Sheriffs Office. However, the court did not prevent the defense from calling Detective Hoobler as a witness, and noted that if he was called, it would permit the State to re-urge its motion and would make a ruling at that time. Detective Hoobler was never called as a witness at trial.

15LSA-Const. Art. I, § 16 provides, in pertinent part: “[A]n accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.”

The Sixth Amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution (1974) guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. The primary purpose of confrontation is to secure for the defendant the opportunity for cross-examination. State v. Carter, 96-358 (La.App. 5 Cir. 11/26/96), 685 So.2d 346, 351. However, the extent of cross-examination is not without limitation. In order for evidence to be admissible at trial, it must be relevant. State v. Wright, 10-577 (La.App. 5 Cir. 2/15/11), 61 So.3d 88, 102, writ denied, 11-560 (La.9/30/11), 71 So.3d 283. The determination regarding the relevancy of tendered evidence, and therefore the scope and extent of cross-examination, is within the discretion of the trial judge, whose ruling will not be disturbed absent an abuse of discretion. State v. Carter, 685 So.2d at 351.

In addition, a criminal defendant has the constitutional right to present a defense. However, this right does not require a trial court to admit evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Wright, 61 So.3d at 103. A conviction will not be overturned where the defendant does not show that he was prejudiced by a limitation of the cross-examination of a witness. State v. Ramirez, 09-350 (La.App. 5 Cir. 12/29/09), 30 So.3d 833, 843.

Relevant evidence is any “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” LSA-C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by law. |6LSA-C.E. art. 402. However, even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” LSA-C.E. art. 403. See State v. Wright, 61 So.3d at 103.

In the instant case, we find no merit to defendant’s argument that he was denied his right to present a defense. We first note that Detective Hoobler did not testify at trial. Although defense counsel could have called Detective Hoobler as a witness, he did not. The trial court was very clear in its ruling on the State’s motion in limine that if Detective Hoobler was called as a witness, he would revisit his ruling at that time.

Moreover, defendant did not proffer any testimony or other evidence regarding the circumstances surrounding Detective Hoo-bler’s termination from the Sheriffs Office, at trial. Although it was alluded to at the motion hearing that Detective Hoobler was under a pending criminal investigation, a review of the record reveals that the facts and circumstances surrounding this investigation and his subsequent termination from the Sheriffs Office is unknown.

When the trial court excludes evidence, such as witness testimony, error may not be predicated upon a ruling unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by counsel. LSA-C.E. art. 103. This Court has consistently held that when a defendant does not make known the substance of the excluded evidence for the purpose of consideration by the trial and appellate court, the alleged error is not preserved for review on appeal. See State v. Thompson, 12-409 (La.App. 5 Cir. 12/11/12), 106 So.3d 1102; State v. Watson, 02-1154 (La.App. 5 Cir. 3/25/03), 844 So.2d 198, 210, writ denied, 03-1276 (La.5/14/04), 872 So.2d 506; and State v. Stevenson, 02-79 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 347. Here, since this evidence |7was not proffered, we are unable to determine whether this information would have been relevant and whether its probative value would have been substantially outweighed by the danger of unfair prejudice.

In State v. Wright, supra, this Court addressed the same issue raised by defendant in the instant appeal. In Wright, defendant argued that he was denied his right to present a defense when the trial judge prevented him from asking Detective Rodrigue, a state witness, why Detective Barrette was no longer employed by the Jefferson Parish Sheriffs Office. This Court found that the defendant had not shown he was prejudiced by the limitation of cross-examination of Detective Ro-drigue, noting that Detective Barrette did not testify at trial, nor had Detective Rodrigue’s testimony been proffered. In so finding, this Court noted: “Since that testimony was not proffered, we are unable to determine whether it would have been relevant and whether its probative value would have been substantially outweighed by the danger of unfair prejudice.” State v. Wright, 61 So.3d at 103.

Likewise, in the instant case, defendant has failed to show how he was prejudiced by the trial court’s exclusion of the circumstances surrounding Detective Hoobler’s termination from the Sheriffs Office. In particular, defendant has made no showing of how the excluded evidence was relevant and material to his defense. We lastly note that the elements of the offense were established by the testimony of Sergeant Fourcade and Deputy Faucetta, who both testified that they observed a gun fall from defendant’s waistband.

In light of the foregoing, we find that defendant was not denied his right to present a defense and further that the trial judge did not abuse his discretion by prohibiting defendant from cross-examining witnesses regarding the circumstances surrounding Detective Hoobler’s termination from the Jefferson Parish Sheriffs | ^Office. Accordingly, the arguments raised by defendant on appeal are without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals a discrepancy between the commitment and transcript insofar as the commitment reflects that defendant was given a proper advisal of the time period for seeking post-conviction relief as required by LSA-C.Cr.P. art. 930.8 whereas the transcript indicates an incomplete advisal. Specifically, the transcript indicates that the trial court advised defendant that “you have two years to file post conviction relief after the sentence is complete.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). In accordance with this Court’s routine practice, we advise defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473. Other than this discrepancy, our review reveals no errors that require corrective action.

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

AFFIRMED

      . At trial, the parties stipulated that defendant was previously convicted of attempted armed robbery on August 1, 2006, case number 460-395, Division “L” of the Criminal District Court for the Parish of Orleans.

      . In their briefs, the State and defendant both spell the detective's name as Hoobler, while the transcript spells his name as Huebler. For purposes of consistency, the spelling used by the parties, Hoobler, will be used throughout this opinion.

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


text:
    STATE of Louisiana v. Kerry L. BRUCE.
    No. 13-KA-175.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Angel G. Varnado, Assistant District Attorneys, Gretna, LA, for Plaintiff/App ellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

| ^Defendant, Kerry L. Bruce, appeals his convictions and sentences for attempted second degree murder and illegal carrying of a weapon during a crime of violence. For the reasons that follow, we affirm his convictions and sentences, and we grant appellate counsel’s motion to withdraw.

PROCEDURAL HISTORY

On November 24, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, in count one, with attempted second degree murder, in violation of LSA-R.S. 14:27 and LSA-R.S. 14:30.1, and, in count two, with illegal carrying of a firearm while in the commission of a crime of violence, in violation of LSA-R.S. 14:95(E). At his arraignment, defendant pled not guilty. Defendant thereafter filed several pretrial motions, including a motion to reduce bond and motions to suppress evidence, identification, and statement. On February 2, 2010, the trial court heard and denied these motions.

On June 18, 2012, defendant withdrew his prior pleas of not guilty, and after being advised of his rights, pled guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to twenty-five years at hard labor without the benefit of probation or suspension of sentence on the attempted second |sdegree murder conviction, and to ten years at hard labor on the illegal carrying of a weapon conviction, to run concurrently.

The State then filed a bill of information pursuant to the provisions of LSA-R.S. 15:529.1 seeking to have defendant adjudicated a second felony offender. After defendant stipulated to the allegations of the multiple bill, the trial court vacated defendant’s sentence on count one and resen-tenced him, in accordance with the plea agreement, to twenty-five years at hard labor without the benefit of probation or suspension of sentence. Defendant now appeals.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and “can find no non-frivolous issues to raise on appeal and can find no trial court rulings that would arguably support the appeal.” Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his ease to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point identified by the court, or grant the motion and appoint substitute appellate counsel. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

In this case, defendant’s appellate counsel asserts that after a conscientious and thorough review of the record, he could find no non-frivolous issues to raise on | ^appeal. Appellate counsel notes that he has thoroughly reviewed the information relative to the pretrial motions to suppress and to reduce bond and “has not found any appealable issues upon which to support an appeal.” He further asserts that both trial counsel and the district court fully informed defendant of the legal consequences of pleading guilty, and therefore, there is no basis for this Court to reject defendant’s guilty pleas.

Along with his brief, appellate counsel has filed a motion to withdraw as attorney of record which states he has made a conscientious and thorough review of the trial court record and could find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal. He further states that he notified defendant of the filing of the motion to withdraw and that he advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter, by certified mail, informing him that an Anders brief had been filed and that he had until April 15, 2013, to file a pro se supplemental brief. As of the rendering of this opinion, defendant has not filed a pro se supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See generally LSA-C.Cr.P. arts. 463-466. Also, as reflected by the minute entries and commitment, defendant appeared at his arraignment and the guilty plea and sentencing proceedings.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or postjconviction6 relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. In the instant case, defendant filed motions to suppress evidence, identification, and statement that were denied after a hearing. However, defendant did not preserve these rulings for review under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Additionally, our review of the record reveals no irregularities in defendant’s guilty pleas on either the original or multiple offender bills of information. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows that defendant was aware he was pleading guilty to one count of attempted second degree murder and one count of illegal use of a firearm during a crime of violence. Further, on the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

During his guilty plea proceeding, defendant stated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant indicated that he understood the possible legal consequences of pleading guilty and wished |7to plead guilty at that time. He also indicated that he understood that his guilty pleas could be used to enhance penalties for any future convictions. Defendant was also informed during the colloquy and by means of the waiver of rights form of the sentencing ranges he faced for each count and of the actual sentences that would be imposed if his guilty pleas were accepted. After his colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

With respect to defendant’s stipulation to the multiple offender bill, filed immediately after defendant’s original plea, the record shows that defendant was adequately advised of his multiple offender rights. The trial court advised defendant that by pleading guilty to the multiple bill, he was giving up his right to a hearing at which the State would have to prove his multiple offender status. Defendant was also advised of the possible sentence that he could receive pursuant to the multiple bill as well as the actual sentence that would be imposed upon acceptance of his stipulation to the bill. Throughout the colloquy with the trial court, defendant indicated that he understood his rights relating to the multiple offender proceedings and that he wished to waive those rights.

We note that during the colloquy, the trial court did not specifically advise defendant of his right to remain silent throughout the multiple offender hearing. However, the record indicates that defendant was nonetheless sufficiently advised of this right. At the beginning of the multiple offender colloquy, defense counsel advised the court that defendant “has executed a waiver of constitutional rights and plea of guilty form which we tender to the court at this time.” In addition, the record contains a waiver of rights form signed by defendant, his attorney, and the |strial court indicating that he understood his rights, including his right to remain silent, as well as the consequences of his plea.

We further note that defendant’s sentences were imposed in accordance with the terms of the plea agreements. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In addition, defendant’s sentences fall within the sentencing ranges prescribed by the statutes.

Based on the foregoing, we find that defendant’s guilty pleas and the sentences imposed pursuant to the plea agreements do not present any issues for appeal. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action.

Accordingly, defendant’s convictions and sentences are hereby affirmed. The motion to withdraw as counsel for defendant is hereby granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

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

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

      . Defendant signed the multiple offender waiver of rights form and placed his initials after each right with the exception of the right to remain silent. However, we do not find that omission detrimental to his guilty plea as "there has never been a requirement that a defendant initial each line in a plea form.” State v. Woods, 09-399 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 405, writ denied, 10-784 (La.10/29/10), 48 So.3d 1096.


text:
    STATE of Louisiana v. Alan D. MARSE.
    No. 13-KA-155.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, Seth W. Shute, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellee.

      Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| .¿Defendant, Alan D. Marse, pled guilty to a third offense of driving while intoxicated in violation of R.S. 14:98(A)(D). Defendant was sentenced to two years imprisonment at hard labor, the first year to be served without benefit of parole, probation, or suspension of sentence, and the court allowed the first year to be served in the “Jefferson Parish Home Incarceration Program.” The trial court suspended the second year of the sentence and placed defendant on one year active probation, and as conditions of which, ordered him to submit to a substance abuse evaluation and complete in-patient substance abuse treatment for a period of four weeks, followed by out-patient treatment for a period not to exceed twelve months. Upon completion of the in-patient treatment, defendant was ordered placed “in custody of JP-HIP,” the Jefferson Parish Home Incarceration Program, for the remainder of the probationary period, during which time he was required to obtain employment. He was also ordered to complete 30 eight-hour days of community service during the probationary period. Further, defendant was fined $2,000.00 plus costs and fees associated with home incarceration, and the court ordered |sdefendant to complete a driver improvement program, ordered an interlock device installed on defendant’s vehicle, and ruled that defendant’s vehicle would not be seized and sold pursuant to law.

The State appeals, and assigns as error the trial court’s sentence that provides that defendant is placed in custody of the Jefferson Parish Home Incarceration Program. The State contends that defendant was not eligible for home incarceration because neither the District Attorney nor the Department of Public Safety recommended home incarceration as required by C.Cr.P. art. 894.2(A)(2). Defendant responds that the trial judge complied with the statute, and that, in the alternative, C.Cr.P. art. 894.2 is unconstitutional.

After sentencing defendant to “two years at hard labor,” the trial court sentenced defendant regarding the first year as follows: “The first year is without benefit of parole, probation, or suspension of sentence. The Court will allow you to serve the year in the Jefferson Parish Home Incarceration Program.”

C.Cr.P. art. 894.2 provides in pertinent part that:

A. Notwithstanding any other provision of law to the contrary, a defendant may be placed on home incarceration under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemean- or or a felony punishable with or without hard labor.
(2) In felony cases, either:
(a) The Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration; or
(b) The district attorney recommends home incarceration.
(3) The court determines, after a contradictory hearing, that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration and would serve the best interests of justice. The court may order home incarceration either in lieu of, or in addition to, a term of imprisonment. When the court sentences a |4defendant, it may order the defendant to serve any portion of the sentence under home incarceration.

Among other requirements, C.Cr.P. art. 894.2 A requires that either the Department of Public Safety and Corrections or the District Attorney recommend home incarceration before the sentencing court may allow home incarceration. The record supports the State’s allegations that there was no recommendation for home incarceration by either the District Attorney or the Department of Public Safety and Corrections.

Defendant suggests that C.Cr.P. art. 894.2 is unconstitutional. A constitutionality challenge to a statute cannot be raised for the first time on appeal; it must first be presented in the trial court. State v. Oliver, 03-416 (La.App. 5 Cir. 12/29/09), 30 So.3d 946, 951, writ denied, 10-271 (La.9/17/10), 45 So.3d 1041; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 598, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, — U.S. -, 133 S.Ct. 139, 184 L.Ed.2d 67 (U.S.2012). The constitutionality of C.Cr.P. art. 894.2 was not raised in the trial court and cannot be considered here.

Furthermore, this court has previously found that a defendant is not eligible for home incarceration while serving that portion of his sentence which cannot be suspended. In State v. Walker, 08-563 (La.App. 5 Cir. 1/13/09), 8 So.3d 17, 21, the defendant was convicted of third offense possession of marijuana, and sentenced to two years at hard labor, to be served at home incarceration with “ATI.” This Court vacated the defendant’s sentence and remanded for resentencing after concluding the sentence of two years at hard labor to be served at home incarceration was indeterminate. Id. at 21-22. This court stated that:

La.C.Cr.P. art. 894.2 provides that the trial court may order home incarceration in lieu of imprisonment — not as imprisonment. Therefore, a hard labor sentence and an order of home incarceration are incongruent. In order to sentence a defendant to home | ¡Incarceration, first the sentencing court must suspend the imprisonment and order the suspension to be served in home incarceration with supervision. La. C.Cr.P. art. 894.2(B).

In the case before us, the trial court similarly allowed defendant to serve home incarceration in lieu of mandatory imprisonment at hard labor, i.e., as his sentence, rather than as a condition of probation. This was specifically prohibited by Walker, which also involved a third class felony (one punishable with or without hard labor). Therefore, a statutory mandate that a sentence be served without benefit of probation, parole, or suspension cannot be avoided by substitution of home incarceration for the term of imprisonment during which there is no benefit of probation, parole, or suspension of sentence.

Accordingly, we vacate defendant’s sentence and remand the matter for resen-tencing as set out in this opinion.

SENTENCE VACATED; CASE REMANDED

      . This is significant inasmuch as one of the requirements of C.Cr.P. art. 894.2 A is that either the defendant be eligible for probation, or the offense be punishable with or without hard labor.

      . In addition, we find this remand is necessary to determine what law governs defendant's home incarceration eligibility. Defendant’s instant guilty plea is his third DWI conviction. It is not clear from the record whether the offense that provides the basis for defendant's 2008 conviction was committed within a five year period of the commission of the instant offense. If so, C.Cr.P. art. 894.2 L (designated as C.Cr.P. art. 894.2 K at the time of the commission of the present offense) is triggered and defendant's eligibility for home incarceration is not governed by C.Cr.P. art. 894.2, but by R.S. 14:98. Under either statute the defendant would not be eligible for home incarceration for the first year of his sentence, since R.S. 14:98 D also provides that on conviction of a third offense, one year of defendant's sentence is to be served without benefit of probation, parole or suspension of sentence, and that defendant is not eligible for home incarceration until on probation.


text:
    STATE of Louisiana, Respondent v. Alexander SURRY, Jr., Applicant.
    No. 48,464-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 2, 2013.
    Rehearing Denied Aug. 22, 2013.

      Alexander Surry, Jr., Pro Se.
    Charles Rex Scott, II, District Attorney, for Applicant.
    Before BROWN, WILLIAMS and DREW, JJ.
   h WRIT GRANTED; AFFIRMED.

Applicant Alexander Surry, Jr., seeks supervisory review of the denial of his motion to correct an illegal sentence.

We conclude that La. R.S. 15:308 does not afford the applicant a remedy enforceable through the judicial system. Accordingly, we affirm the decision of the district court.

Surry is serving a sentence of life imprisonment at hard labor without benefit of parole, by virtue of his adjudication as a third-felony habitual offender. State v. Surry, 37,448 (La.App.2d Cir.9/24/03), 855 So.2d 893, writ denied, 2003-3118 (La.5/21/04), 874 So.2d 171. His sentence was prescribed by the habitual offender law in effect in January 2001, the date of the commission of his last felony offense. La. R.S. 15:529.1(A)(1)(b)(ii) then required a life sentence when any one of the offender’s three previous felony convictions:

|2* was defined in La. R.S. 14:2(13) as a crime of violence; or

• was a violation of the Controlled Dangerous Substances Law punishable by imprisonment for more than five years; or

• was any other crime punishable by im- ■ prisonment for more than 12 years.

Today’s analogous provision of the habitual offender law, La. R.S. 15:529.1(A)(3)(b), mandates a life sentence without parole only for situations where all three prior felony convictions fall into at least one of these categories:

• any crime of violence, as defined under La. R.S. 14:2(B);

• a sex offense, as defined under La. R.S. 15:540, et seq., when the victim is under the age of 18 at the time of the crime;

• a drug offense punishable by 10 years or more; or

• any other conviction punishable by imprisonment for 12 years or more.

Under current law, Surry would not have exposure for a life sentence without benefits, because one of his felony convictions, possession of cocaine, is punishable by no more than five years.

This change in La. R.S. 15:529.1 alone provides applicant no relief.

As the supreme court explained in State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518:

This court has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Wright, 384 So.2d 399, 401 (La.1980). A defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense. State v. Narcisse, 426 So.2d 118, 130-131 (La.1983). “The mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute.” Id.

However, applicant urges that he is entitled to be resentenced under the present habitual offender law by operation of La. R.S. 15:308. That statute provides:

A. (1) The legislature hereby declares that the provisions of Act No. 403 of the 2001 Regular Session of the Legislature provided for more lenient penalty provisions for certain enumerated crimes and that these penalty provisions were to be applied prospectively.
|SB. In the interest of fairness in sentencing, the legislature hereby further declares that the more lenient penalty provisions provided for in Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced according to the following provisions: R.S. 14:56.2(D), 62.1(B) and (C), 69.1(B)(2), 70.1(B), 82(D), 91.7(C), 92.2(B), 92.3(C), 106(G)(2)(a) and (3), 106.1(C)(2), 119(D), 119.1(D), 122.1(D), 123(C)(1) and (2), 352, and 402.1(B), R.S. 15:529.1(A)(l)(b)(ii) and (c)(ii), 1303(B), and 1304(B), R.S. 27:262(C), (D), and (E), 309(C), and 375(C), R.S. 40:966(B), (C)(1), (D), (E), (F) and (G), 967(B)(1), (2), (3), and (4)(a) and (b), and (F)(1), (2), and (3), 979(A), 981, 981.1, 981.2(B) and (C), and 981.3(A)(1) and (E), and Code of Criminal Procedure Art. 893(A) prior to June 15, 2001, provided that such application ameliorates the person’s circumstances.
C. Repealed by Acts 2012, No. 123, § 1.

(Emphasis added.)

La. R.S. 15:308(C), which was repealed by Acts 2012, No. 123, provided the statutory authority for inmates to seek modification of their sentences by application to the Louisiana Risk Review Panel, a division of the Louisiana Department of Public Safety, an agency of the executive branch of state government. The Louisiana Risk Review Panel had the authority to recommend clemency to the Board of Pardons or parole to the Board of Parole.

The review and recommendation functions of the Louisiana Risk Review Panel were inextricably tied to the ameliorative relief authorized in La. R.S. 15:308(A) and (B). As originally proposed, La. R.S. 15:308(C) allowed an inmate to seek review of his sentence in the sentencing court. However, the legislature did not enact that proposal; instead, it created the Louisiana Risk Review Panel within the executive branch as the sole means of implementing the relief embodied in La. R.S. 15:308(A) and (B). State v. Dick, 2006-2223 (La.1/26/07), 951 So.2d 124. See also State v. Surry, 41,909 (La.App.2d Cir.10/26/06), 943 So.2d 544, writ denied, 2006-2891 (La.9/21/2007), 964 So.2d 329. The reduction of a final sentence is the equivalent of commutation, which is a power constitutionally reserved solely to the executive branch of state government. Dick, supra. Thus, the provisions of La. R.S. 15:308 do not render any inmate’s sentence illegal within the meaning of La. C. Cr. P. arts. 881.5 or 882.

In accordance with the principles announced in State v. Dick, supra, we conclude that the legislature’s choice to delete the statutory authority for the Louisiana Risk Review Panel cannot and does not empower the judiciary with the authority to commute or otherwise reduce a final sentence. Because that authority is reserved by the constitution solely for the executive branch, the repeal of La. R.S. 15:S08(C) does not provide the applicant and others similarly situated with a remedy enforceable in the judicial branch of government.

^Accordingly, this Court grants this application for supervisory review and affirms the denial of the applicant’s motion to amend his sentence.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS and DREW, JJ.

Rehearing denied.

      . We note that two of our sister circuits have considered this perplexing issue, with opposite results. Both decisions were unanimous. Ray Hollins v. N. Burl Cain, Warden, 12-KH-940 (La.App. 5th Cir.2/14/2013) (unpublished writ disposition); and State v. Hollis, 2013-KW-0646 (La.App. 1st Cir.5/21/2013) (unpublished writ disposition).