author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Derrick PIERRE.
    No. 13-KA-339.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Parish of St. Charles, Hahnville, Louisiana, for Plaintiff/Appellee.
    Benny S. George, Jr., Attorney At Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

|20n April 3, 2012, the District Attorney for St. Charles Parish filed a bill of information charging defendant, Derrick Pierre, with one count of possession with intent to distribute cocaine in violation of La. R.S. 40:967(A)(1), and one count of possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E). After a trial by jury, defendant was found guilty as charged and sentenced to 25 years at hard labor on count one, with two years to be served without benefits, and to five years at hard labor on count two, without benefit of probation, parole or suspension of sentence, with the sentences to run concurrently. Defendant now appeals his conviction and sentence, alleging that the trial court abused its discretion in denying his motion for continuance, thereby violating his constitutional right to counsel of his choice, and that the trial court acted vindictively in imposing a 25-year sentence at hard labor after defendant refused to plead guilty before trial in return for a ten-year sentence at hard labor. |sFor the reasons that follow, we find defendant’s assignments of error to be without merit and affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On or about February 1, 2012, the St. Charles Parish Sheriff’s Office (“SCPSO”) executed a search warrant at the residence of defendant based upon a confidential informant’s three separate purchases of heroin from defendant. As a result of the search warrant, narcotics were seized consisting of 40 pre-packaged baggies of off-white rocks, weighing 7.5 grams, and an additional 4.5 grams of off-white rock substance, all containing cocaine. SCPSO also seized a Glock, .45 caliber handgun, digital scales and $842 in cash from defendant’s residence. Defendant was arrested and attorney David Moyer of the Indigent Defendant Board was appointed to represent him on February 2, 2012.

On April 10, 2012, defendant was arraigned, while accompanied by Mr. Moyer, and pled not guilty to both counts. During the arraignment hearing, the court removed Mr. Moyer as defendant’s counsel after learning that he was able to meet his $100,000 bond obligation. Accordingly, the court ordered defendant to hire private counsel, to which defendant responded, “[a]ll right” [sic]. However, on April 30, 2012, the court re-appointed Mr. Moyer after defendant had not hired private counsel because he informed the court that he could not afford to do so.

Defendant’s case was initially set for trial on July 16, 2012. The court subsequently re-set the trial date for August 20, 2012, at the defendant’s request, because the lab reports had not yet been released. On August 14, 2012, the trial date was again re-set because the State indicated that it had still not received the lab report. Accordingly, the court re-set the trial date for October 15, 2012. During a September 25, 2012 status conference, Mr. Moyer stated that all discovery had been satisfied. Defendant subsequently filed a motion to suppress |4on October 3, 2012, which was set for hearing on October 10, 2012. However, on the date of the hearing on defendant’s motion to suppress, the parties agreed to continue the hearing until the morning of trial, on October 15, 2012, because Mr. Moyer had not been able to get in touch with defendant in advance of the hearing.

On the morning of October 15, 2012, defendant and Mr. Moyer appeared in court for the motion to suppress hearing and trial. After Mr. Moyer made his appearance on behalf of defendant for the motion to suppress hearing, he informed the trial judge, Judge M. Lauren Lemmon, that defendant wanted to address the court regarding another matter. Defendant stated that he had hired private counsel, Harold E. Weiser, on October 12, 2012, the Friday prior to trial. Defendant then handed the judge a motion to continue prepared by Mr. Weiser, which requested a continuance of the trial due to Mr. Weiser’s conflicting hearing date in Jefferson Parish Juvenile Court. The motion to continue had not been filed into the court record, but defendant stated that Mr. Weiser had faxed the motion to the district attorney’s office on October 12, 2012. The State objected to any continuance of the trial date.

In evaluating defendant’s request for a continuance the court responded as follows:

THE COURT:
The trial has been scheduled for a long time. The case has been pending for a long time. I don’t have a formal motion to continue or a motion to enroll before me. And, if I did, and there was an attorney here, they could try the case today.
We’re going to proceed forward with the trial. You’ve had a court-appointed attorney. Let’s proceed with the motion to suppress at this time.

Defendant then asked for a brief recess to call Mr. Weiser, after stating that he did not feel that Mr. Moyer would represent him properly. When Judge Lemmon asked defendant why he felt this way, he stated, “I just don’t. I don’t feel like he’s Ingoing to represent me properly.” Judge Lemmon allowed defendant to call Mr. Weiser to tell him that they would be proceeding with the motion to suppress and trial. After defendant returned and informed the court that he had asked his girlfriend to retrieve his phone from his car to make the call, the hearing on defendant’s motion to suppress commenced without objection. At the conclusion of the hearing, the court denied defendant’s motion to suppress.

Following the hearing, the court indicated that it had received a call from Mr. Weiser, who claimed to have filed a motion to continue and a motion to enroll the previous Friday at 3:42 p.m. with the Clerk of Court’s Office and that he also faxed a copy to the District Attorney’s Office. In response to Mr. Weiser’s call, the court stated as follows:

THE COURT:
Well, assuming that it was filed properly, I’m going to respectfully deny the motion to enroll and continue at this time.
In addition to the fax already put in the record regarding dates and how old the case is and how many times it’s been set for trial on April 10th, because Mr. Pierre bonded out on a $100,000 bond, I tested his indigency and removed the Public Defender’s office as his attorney and afforded Mr. Pierre the opportunity to hire an attorney.
On April 30th, Mr. Pierre returned to court for the next court date and did not have an attorney and indicated that he could not afford one and I reappointed Mr. Moyer at that time and the Public Defendant’s office.
The law states that defendants, in criminal matters, are entitled to a court-appointed attorney but not an attorney of their choice. This is a common ploy to get out of going to trial. The matter has been set for a long time. There was no urgency or change in the last several months that it made it urgent on Friday afternoon to hire an attorney.

The State indicated that it had received a motion to continue via fax, but no motion to enroll from Mr. Weiser at 3:42 p.m. on October 12, 2012, but that the faxed motion had not been clocked in by the Clerk of Court’s office. Regarding defendant’s motion to continue, the court acknowledged that the motion had not 1 fibeen filed, but allowed it to be filed orally before again denying it in open court. Mr. Moyer objected to the court’s ruling and then trial proceedings commenced.

During opening statements, Mr. Weiser appeared in court and asked the court for permission to approach the bench. The court denied Mr. Weiser’s request, but allowed him to remain at counsel’s table throughout the trial. At one point during trial, Mr. Moyer moved for a mistrial related to a witness’s reference to “illegal drugs.” Both Mr. Moyer and Mr. Weiser approached the bench for a conference regarding the motion for a mistrial, after which the judge denied the motion, stating that she would instruct the jury to disregard the testimony regarding “illegal drugs.” Mr. Weiser informed the judge that he wished to file a formal motion for mistrial. Judge Lemmon told Mr. Weiser that she would allow him to do that at some point during trial, but not at that time.

Accordingly, Mr. Weiser filed a motion titled, “Contemporaneous Defense Objection to Judge Not Hearing Defense Motion and Motion for Mistrial” at 4:01 p.m. during trial. The motion alleged that Mr. Weiser moved the court for a continuance of the trial on October 12, 2012, but that the court refused to allow the motion to be filed on the morning of trial. As a result, the motion requested a mistrial because defendant was forced to go to trial without his counsel present. Judge Lemmon addressed Mr. Weiser’s motion at a bench conference. Judge Lemmon stated that, contrary to Mr. Weiser’s assertion, she did hear the motion to continue and denied it in open court. Further, Judge Lemmon stated that she allowed Mr. Weiser to remain at counsel’s table to assist Mr. Moyer and told him that she would, and was still willing, to hear his motion for mistrial once the jury started deliberating. Although Mr. Weiser was not present during the bench conference, after he returned to the courtroom, the judge confirmed that Mr. Moyer informed Mr. Weiser of their discussion during the bench conference.

17After the jury began deliberating, the court noted that it told Mr. Weiser that the court would hear his motion for mistrial while the jury was deliberating, but that Mr. Weiser had left at some point during jury instructions. The State further noted that it had received a motion for continuance, which was filed by Mr. Weiser at 1:23 p.m. on the day of trial, October 15, 2012. The court once again took up the matter of the continuance and recounted its previous denial of the continuance.

At the conclusion of trial, the jury unanimously found defendant guilty as charged on both counts. Defendant, through Mr. Moyer, filed a Motion for New trial on October 29, 2012, which was denied. On November 26, 2012, defendant was sentenced to 25 years at hard labor on count one, with two years to be served without benefits, and five years at hard labor on count two, without benefit of probation, parole or suspension of sentence, with the sentences to run concurrently. Defendant filed a Motion for Reconsideration of Sentence, which was denied on January 22, 2013. On November 26, 2012, defendant filed a timely Motion for Appeal, which was granted on that date.

ASSIGNMENTS OF ERROR

Defendant raises the following assignments of error on appeal:

1. The trial court erred when it denied defendant’s motion for continuance and his constitutional right to retain counsel of his choice prior to the hearing on his pretrial motions and commencement of trial.
2. The trial court erred when it imposed a sentence of twenty-five (25) years at hard labor after appellant refused to plead guilty in return for a sentence of ten (10) years at hard labor.

LAW AND DISCUSSION

Assignment of Error No. 1

In his first assignment of error, defendant contends that the trial court erred in denying his motion to continue the trial date, which resulted in the denial of his | sconstitutional right to retain his counsel of choice to represent him during his pretrial motion hearing and at trial.

As an initial matter, we note that defendant’s motion to continue does not comply with the requirements of La. C.Cr.P. art. 707. The general rule under La.C.Cr.P. art. 707 is that motions for continuance must be made in writing and allege the specific grounds upon which they are based. Additionally, a motion for a continuance must be made within seven days prior to trial. Id. However, when circumstances producing the motion for continuance occur unexpectedly and there is no opportunity to prepare a written motion, there is a jurisprudential exception to the requirement for a written motion. State v. Malinda, 95-292 (La.App. 5 Cir. 10/31/95), 663 So.2d 882, 886.

In this case, defendant’s motion was not filed seven days before trial, and it was not made in writing at the time that the court first considered the motion. In fact, a written motion to continue was not filed until 1:23 p.m. on the day of trial, which was several hours after trial had already begun. Despite the lack of a written motion to continue, the trial court allowed defendant to file the motion to continue orally. Therefore, we will now evaluate the trial court’s denial of defendant’s motion for continuance.

The decision to grant or deny a continuance lies within the wide discretion of the trial court. State v. Wilson, 96-251 (La.App. 5 Cir. 10/1/96), 683 So.2d 775, 776; La.C.Cr.P. art. 712. The trial court’s denial of a motion for continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. Wilson, 683 So.2d at 776; State v. Benoit, 440 So.2d 129, 133 (La.1983). Moreover, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance | flabsent a showing of specific prejudice. State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, 140, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

It is well settled that a defendant in a criminal trial cannot force a postponement by a last minute change of counsel. State v. Divine, 98-812 (La.App. 5 Cir. 5/19/99), 738 So.2d 614, 617, writ denied, 99-2393 (La.2/4/00), 754 So.2d 222, cert. denied, 530 U.S. 1219, 120 S.Ct. 2227, 147 L.Ed.2d 258 (2000). “Absent a justifiable basis, ‘[t]here is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications.’ ” State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 896, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

In Divine, supra, this Court found no abuse of the trial court’s discretion in denying the defendant’s oral motion for continuance on the day of trial, based upon his recent hiring of another attorney. In denying the oral motion, the trial court noted that approximately two months had passed from the date of arraignment to the date of trial. The trial court concluded that the two month period was a sufficient amount of time for the defendant to retain new counsel prior to trial, if he chose to do so. In affirming the trial court’s decision to deny the defendant’s motion to continue, we emphasized that the attorney representing the defendant at the time of trial did not advise the trial court that he was unprepared for trial.

In reaching our holding in Divine, we relied upon the Louisiana Supreme Court’s holding in State v. Leggett, 363 So.2d 434 (La.1978). In Leggett, the Louisiana Supreme Court similarly affirmed the trial court’s denial of a defendant’s motion to continue trial to permit the defendant to retain private counsel, which was filed on the morning of trial. In denying the defendant’s motion to continue, the trial court considered the amount of time that had elapsed 110between the filing of the bill of information and the trial date, which was over two months.

In this case, Mr. Moyer, through the Indigent Defender Board, was appointed to represent defendant on February 2, 2012, which was one day after his arrest and two months before his arraignment on April 10, 2012. After testing defendant’s indigency and removing Mr. Moyer as his counsel at the arraignment, the trial court specifically gave defendant the opportunity to hire private counsel. Even though defendant agreed to hire his own counsel at the time the court removed his court-appointed attorney, he did not do so and later told the court at his next court date that he could not afford to hire an attorney. As a result, the court re-appointed Mr. Moyer on April 30, 2012. Mr. Moyer represented defendant from that point through the date of trial on October 15, 2012, which amounts to a period of over five months prior to trial. During that time, defendant made eight court appearances, primarily consisting of status conferences, all of which, defendant attended with Mr. Moyer acting as his attorney.

Our review of the record shows that at no time prior to trial did defendant indicate that he wanted to hire private counsel. Rather, defendant presented an oral motion for continuance on the morning of trial, alleging that he had hired a new attorney on the Friday afternoon prior to trial, Mr. Weiser, who had a conflict with the trial date. Under the facts of this case, we find no abuse of the trial court’s discretion in denying defendant’s motion to continue. As shown above, a trial court’s denial of a motion for continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. Given the length of time that defendant had to retain new counsel in advance of trial and that the request for continuance was first made on the morning of trial, followed by a written motion | n filed several hours after trial had begun, we cannot say the trial court abused its discretion in denying defendant’s motion for continuance.

Furthermore, defendant has made no showing of specific prejudice as a result of the trial court’s denial of his motion. Rather, defendant simply told the trial court that he did not feel Mr. Moyer would represent him properly, without further explanation. We find that the record indicates that Mr. Moyer was adequately prepared for the motion to suppress hearing and trial as demonstrated by his performance. Specifically, Mr. Moyer made numerous objections during the State’s direct examination of witnesses including moving for a mistrial, thoroughly cross-examined the State’s witnesses, and presented a defense. Just as in Divine, supra, there is no indication that Mr. Moyer was unprepared for trial.

We further find defendant’s claim that the trial court’s denial of his motion to continue the trial date was in error because he “had no idea that the hearing on motions would be held on the say [sic] day as trial” to be without merit. Contrary to defendant’s assertions, the record clearly shows that defendant was fully aware that the motion hearing was set for the morning of trial, as he was present in court on October 10, 2012, and responded affirmatively, when the hearing date was set for the same day as trial at his attorney’s request. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s oral motion for continuance filed on the morning of trial.

Nor do we find that the trial court’s denial of defendant’s motion to continue to allow Mr. Weiser to represent him deprived defendant of his constitutional “right to be assisted by counsel of his choice.” Both the federal and state constitutions provide that a criminal defendant has the right to counsel of his own choosing to defend him. Leggett, 863 So.2d at 436; State v. Reeves, 06-2419 (La.5/5/09), 11 So.3d 1031, 1055, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). However, this right is not absolute and it must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings. State v. Burbank, 07-125 (La.App. 5 Cir. 10/30/07), 971 So.2d 1173, 1178, writ denied, 07-2287 (La.4/25/08), 978 So.2d 364. A defendant’s right to counsel of his choice cannot be manipulated to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Id.; Reeves, 11 So.3d at 1056.

In Leggett, supra, the Louisiana Supreme Court provided as follows:

There is no constitutional light to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973), overruled on other grounds by State v. Ford, 336 So.2d 817 (La.1976). This court has frequently upheld the trial court’s denial of motions for continuances or -withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel.”

(citations omitted) (emphasis added).

As we have discussed, defendant did not inform the court of his new choice of counsel until the morning of trial, immediately before his motion to suppress hearing. Although both defendant and Mr. Weiser indicated that Mr. Weiser filed a motion to continue and a motion to enroll on October 12, 2012, the Friday before trial, there is nothing in the record to support this contention. Rather, the record establishes that Mr. Weiser did not file a motion to continue or a motion to enroll until 1:23 p.m. on October 15, 2012—sever-al hours after trial had begun. Despite the lack of proper filing, Judge Lemmon allowed defendant to file a motion to continue orally on the morning of trial and denied said motion. Moreover, after | ]SMr. Weiser appeared in court, the judge allowed Mr. Weiser to remain at counsel’s table and informed him that she would hear any motion he wanted to argue while the jury was deliberating. However, Mr. Weiser left the courtroom during jury instructions.

Based on the foregoing, we find that defendant did not exercise his right to counsel of his choice at a reasonable time or manner, or at an appropriate stage of the proceedings. Because defendant does not have the constitutional right to make a new choice of counsel on the day of trial, we find no infringement on defendant’s right to counsel of his choice as a result of the trial court’s denial of his motion to continue. Accordingly, this assignment of error is without merit.

Assignment of Error No. 2

In his second assignment of error, defendant contends that the trial court acted vindictively in imposing a 25-year sentence, when the court had previously indicated that if defendant pled guilty pri- or to trial, it would impose a ten-year sentence. However, defendant did not raise this issue either by objection at the sentencing hearing, or in his December 20, 2012 motion to reconsider sentence. Defendant’s failure to raise this issue in the trial court arguably precludes him from raising the issue for the first time on appeal. State v. Harris, 10-492 (La.App. 5 Cir. 5/24/11), 66 So.3d 1180, 1183. However, due to the constitutional implications of the assigned error, we will review the merits of defendant’s claim.

Defendant was sentenced on November 26, 2012. Prior to sentencing, the State informed the trial court about defendant’s previous criminal record, which included a 2002 conviction for possession of stolen property; a 2004 conviction for possession of a semi-automatic handgun; a 2004 conviction for possession of cocaine for which he was given probation and was subsequently revoked; and a |142009 conviction for battery on a police office. Before imposing sentence, the court stated:

THE COURT:
Okay. Y’all know I’m a big proponent of second chances. You also know that I am a big proponent of people who have substance abuse problems and giving them treatment. What I haven’t made clear, is that, repeat offenders and drug dealers, I’m not a big proponent of.
Mr. Pierre was given more than a second chance. I wasn’t here for that.
When it turns to violence and it turns to drug dealing, your chances are over, sir. There will be resources in jail. There will be opportunities in jail. And your life won’t be over at that time.

For count one, defendant faced a maximum possible sentence of 30 years at hard labor for his conviction under La. R.S. 40:967(A)(1), the first two years of which, are required to be served without benefits. For count two, defendant faced a maximum possible sentence of 10 years, without benefits, and a maximum fine of $10,000 for his conviction under La. R.S. 14:95(E). At the sentencing hearing, the trial court sentenced defendant to 25 years at hard labor on count one, with the first two years to be served without benefits, and to five years at hard labor on count two, without benefits, and ordered the sentences to run concurrently. Defendant was given credit for time served.

If a trial judge has agreed to impose a particular sentence pursuant to a plea bargain, as was the case here, this does not restrict that judge from imposing a more severe sentence if the defendant elects to go to trial and is convicted. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066, writ denied, 02-0481 (La.3/14/03), 839 So.2d 26.

The sentencing judge must nonetheless comply with constitutional standards, and the sentence should not be increased due to vindictiveness arising [ 1sfrom the exercise of the defendant’s right to stand trial. Id., citing State v. Frank, 344 So.2d 1039, 1045 (La.1977). “A judge’s disposition to impose a lenient sentence during plea discussions should not be understood as setting a limit for the justifiable sentence under accepted principles of criminal justice. The better view, we think, is that the plea proposal is a concession from the greatest justifiable sentence, the concession being made because of circumstances surrounding the plea.” Id. See also, State v. Barkley, 412 So.2d 1380, 1383 (“[A] trial judge’s preconviction offer of a lenient sentence should not be viewed as setting a limit for a justifiable sentence after conviction.”).

In Bordenkircher v. Hayes, 434 U.S. 357, 363-364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the United States Supreme Court stated:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutor’s offer.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible— “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

(Citations omitted).

There is no evidence in the record, and defendant does not claim, that he was not free to accept or reject the State’s plea offer. Defendant chose not to accept the offer, thereby taking the risk of a greater penalty upon conviction by a jury. Both 116sentences imposed were within the statutory limits, and in fact, were less than the maximum sentence defendant could have received. Therefore, we do not find that defendant’s sentences were the product of vindictiveness.

However, we note that during a pre-trial status conference on October 2, 2012, it was placed on the record that the State had offered defendant a plea bargain of ten years, with no multiple bill. Defendant’s counsel indicated that defendant did not want to accept the offer. At that time, the trial judge stated as follows:

THE COURT:
Mr. Pierre, this is your only notice to be here at a jury trial on the 15th. You are innocent until proven guilty. If you are found guilty, the policy of the Court is to sentence you to longer than what the offer is. I just want to make sure that you understand that. It’s not a threat. You are entitled to a trial. You will have it on the 15th.

We find the above-cited comments from a trial judge to be inappropriate, as they could be construed as establishing a practice of punishing any defendant who chooses to exercise his constitutional right to trial, rather than accepting a plea bargain, by imposing a longer sentence than that which was offered in a plea agreement. Although we have found that defendant’s sentence in this case was not the product of judicial vindictiveness, we do not condone the use of any language that could, under different circumstances, be construed as penalizing a defendant simply for exercising his constitutional right to trial.

ERROR PATENT DISCUSSION

We have reviewed the record for errors patent, according to La. 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 that the trial judge did not advise defendant of the two-year prescriptive period for filing an application for post-conviction relief under Accordingly, we La.C.Cr.P. art. 930.8. advise defendant, by way of 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 have become final under the provisions of La.C.Cr.P. arts. 914 or 922. See State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272.

CONCLUSION

Accordingly, for the foregoing reasons, we affirm defendant’s convictions and sentences for possession with intent to distribute cocaine in violation of La. R.S. 40:967(A)(1), and possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E).

AFFIRMED.

LILJEBERG, J., concurs without reasons.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Quvadirs R. RUFFIN.
    No. 13-KA-393.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Vincent J. Paciera, Jr., Jerome G. Smith, III, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffAppellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

|2Pefendant, Quvadirs Ruffin, appeals his convictions arising from events which occurred in the early morning hours of May 28, 2011. In this appeal, defendant argues the evidence was insufficient to support his conviction and that the trial court erred by excluding evidence of a “CODIS” match from trial. For the following reasons, we affirm defendant’s convictions and sentences.

PROCEDURAL HISTORY

On June 24, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Quvadirs R. Ruffin a.k.a. Scooter Ruffin, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (Count 1); armed robbery while armed with a firearm in violation of La. R.S. 14:64 (Count 2); aggravated flight from an officer in violation of La. R.S. 14:108.1(0 (Count 3); and resisting a police officer with force or violence in violation of La. R.S. 14:108.2 (Count 4). Defendant was arraigned on June 27, 2011, and pled not Lguilty. On August 10, 2011, defendant’s motions to suppress evidence and statement were denied.

On July 25, 2012, the state entered a nolle prosequi on Counts 3 and 4, and it proceeded to trial on Counts 1 and 2. On July 25 and 26, 2012, the case was tried before a 12-person jury that unanimously found defendant guilty as charged, on both counts.

On August 7, 2012, the state filed a multiple bill alleging defendant had prior felony convictions. Defendant filed a premature motion for reconsideration of sentence on August 22, 2012. The next day, defendant filed a premature pro se motion for appeal that was denied. On September 13, 2012, defendant filed a “Motion for New Trial and Alternatively to Arrest the Judgment.” He filed a response to the multiple bill on October 17, 2012.

On October 18, 2012, the trial judge denied defendant’s “Motion for New Trial and Alternatively to Arrest the Judgment.” After waiving sentencing delays, the trial judge sentenced defendant, on Count 1, to 20 years in the Department of Corrections without benefit of probation, parole, or suspension of sentence, and, on Count 2, to 99 years in the Department of Corrections without benefit of probation, parole, or suspension of sentence. These sentences were ordered to run concurrently. Afterward, defendant asked the trial judge to consider his previously filed motion to reconsider sentence. After doing so, the trial judge denied the motion. On that same date, a multiple bill hearing was held, after which the trial judge found defendant to be a five-time felony offender.

On November 4, 2012, defendant filed another motion for reconsideration of sentence. On January 7, 2013, the trial judge vacated the sentence on Count 2 and re-sentenced defendant under the multiple bill statute to “life imprisonment” without benefit of probation, parole, or suspension of sentence to run concurrently |4with the previously imposed sentence. Defendant filed a timely motion for appeal on January 25, 2013, that was granted.

FACTS

James Rivas testified that he was the manager of Braxton’s Restaurant and Lounge, at 636 Franklin Street in Gretna on May 28, 2011. At 1:30 a.m. Mr. Rivas was at the restaurant, having just closed it, with the porter and dishwasher, Mr. Van Kennedy. Mr. Rivas and Mr. Kennedy were sitting on the restaurant’s front porch facing Rupp Street. Mr. Kennedy went inside the restaurant. Mr. Rivas stayed behind sitting on the bench for a few moments.

While alone on the porch, a man approached Mr. Rivas from the street. The man was wearing gloves, a hat, and a mask that covered the majority of his face. The masked man came up to Mr. Rivas on the porch and told Mr. Rivas to “[gjive me all your ... money, or I’m going to kill you.” The masked man then pushed Mr. Rivas through the front door into the restaurant. Inside, the masked man held a gun to Mr. Rivas’ head and told him to get money out of the restaurant’s cash register. Mr. Rivas complied and gave the masked man four hundred dollars from the cash register. After collecting this money, the masked man forced Mr. Rivas to search for other money in the restaurant. Mr. Rivas and the masked man moved through various rooms in the restaurant and eventually encountered Mr. Kennedy in the kitchen. The masked man grabbed Mr. Kennedy by the collar and put a gun to his head. The masked man then marched Mr. Rivas and Mr. Kennedy out of the kitchen and into the restaurant’s back office. In the office there was a closed safe that contained no money. The masked man forced Mr. Rivas to lie on the ground. He then took the safe from the office and carried it out of the building.

Once Mr. Rivas realized the masked man was no longer in the restaurant, Mr. Rivas went again to the front porch. From that vantage point he saw a car flee l.drom the restaurant. Mr. Rivas did not see the person enter that car, he only saw the car flee the restaurant. Mr. Rivas observed the car, at the first intersection, make a left turn toward Algiers. Mr. Rivas testified that the car he saw flee the restaurant was the same car pictured in the state’s exhibit 18. Mr. Rivas testified that the police were called immediately to report the crime.

At trial, Mr. Rivas testified that the restaurant’s surveillance system captured the crime. The surveillance system’s recording of that night’s robbery was played for the jury. Mr. Rivas identified the man in the surveillance video as the person who robbed him. This video showed the masked man took the safe out of the office at 1:43 a.m.

Mr. Rivas stayed on the porch and waited for the police to arrive. The police found a safe outside the restaurant and Mr. Rivas identified it as the safe that had been taken from the restaurant.

On the question of the masked man’s identity, Mr. Rivas admitted that he could not say defendant was the person who robbed him because he had never seen the face of the person who robbed him. The perpetrator of this crime had at all times covered his face with his mask and hat. Mr. Rivas further testified that, although he could see the eyes of the masked man, he could not tell his race. However, Mr. Rivas testified that the masked man was black “by how he talked.” Mr. Rivas did testify that he remembered the hat worn by the perpetrator as having the name “Harris” written on it. When shown state’s exhibit 20, Mr. Rivas testified that he recognized the hat photographed as the hat which the masked man wore.

Van Kennedy testified next. He confirmed that he was working at the restaurant the night it was robbed. He testified that the robbery occurred sometime | (¡between 1:30 and 2:00 a.m. Mr. Kennedy confirmed that he and Mr. Rivas were sitting outside the restaurant immediately before the robbery but that he had gone inside before the robbery began. Mr. Kennedy was standing in the kitchen, over the fryer, cleaning it, when he was confronted with Mr. Rivas and the perpetrator. Mr. Kennedy testified that the perpetrator grabbed him by the collar, pointed a gun at him, and demanded Mr. Kennedy’s own money. Mr. Kennedy responded that he did not have any money. At that point, the perpetrator forced Mr. Rivas and Mr. Kennedy towards the back office. Mr. Kennedy testified that once the masked man got them into the office, he ordered them to “Lay down face down. And don’t look up, or I’ll kill both of you. I’ll kill y’all.” The two men complied with the perpetrator’s demand.

Mr. Kennedy testified that the perpetrator left them in the back office and took the safe. Once the perpetrator was gone, Mr. Kennedy got up and called 911. He testified that he was scared and probably gave the 911 operator his boss’s name.

Mr. Kennedy testified that he saw defendant “pull off’ from the restaurant “to make a left turn on Franklin Street.” He admitted however that he did not see defendant get into that car. Mr. Kennedy identified the car as a “maroon looking dark colored Chevrolet.” Mr. Kennedy described the car as a newer car with big headlights and round taillights.

On the question of the perpetrator’s identity, Mr. Kennedy testified that the man who robbed them that night had his shirt tied around his face and that the robber was not wearing a mask. Mr. Kennedy described the perpetrator as wearing a gray or black shirt, jeans, gloves, a hat, and having a stocky build. Mr. Kennedy 17testified that he could also tell the perpetrator was black because he could see across his eyes and the bridge of his nose. At trial, Mr. Kennedy testified that he knew defendant was the person who robbed him that night because he recognized the defendant from the portion of his face that was not covered that night.

Captain Jarvis Jackson of the Gretna Police Department was working at Club Secrets a half block away from Braxton’s when he heard on the radio that an armed robbery had occurred there. He looked down the street but could not see anything, so he drove to the scene. When Captain Jackson arrived, he met with Mr. Kennedy, who told him a black “guy” robbed the restaurant. Mr. Kennedy told him that the perpetrator left the scene in a dark-colored car and was headed in a northerly direction on Franklin. Captain Jackson then broadcasted that information over the radio.

Officer Henry Schiro, a reserve officer with the Gretna Police Department, was working that night in a marked patrol unit when he heard that broadcast. Shortly thereafter, Officer Schiro observed a vehicle matching that description traveling on Magellan, the street before Braxton’s, going fast in a westerly direction. Before activating his sirens and giving chase to the vehicle, Officer Schiro was able to get next to the vehicle, and when he did, he saw a black male sitting in the driver’s seat alone in the vehicle. He radioed that information to headquarters. Officer Schi-ro turned around at an intersection to follow the vehicle, and when he did, the vehicle sped off. Officer Schiro activated his lights and sirens and pursued the vehicle. Officer Schiro described his pursuit over the police radio.

| sFrom these radio transmissions, Captain Jackson learned that the vehicle was coming back into Gretna, so he left Brax-ton’s and drove to the center of Franklin Street. While waiting, he saw the vehicle in question traveling at a high rate of speed on Rupp Street, a cross street to Franklin. This vehicle passed right by him. Captain Jackson began pursuing the suspect vehicle and was following directly behind the suspect. Captain Jackson observed that the vehicle failed to stop at several stop signs. The vehicle ended up on a dead-end road, and Captain Jackson saw the brake lights on the vehicle. The vehicle then hit some gravel, and dust and smoke from the gravel popped up. The driver’s side door of the vehicle swung open, and the driver exited the vehicle while the vehicle was still moving. Captain Jackson observed the driver run around the back of the vehicle and discard something. The vehicle subsequently crashed into a fence toward the dead-end, and the driver jumped over the fence and ran. A semiautomatic firearm was later found lying on the ground at the scene where the vehicle crashed.

Describing the crash, Captain Jackson indicated that he saw only one person exit the vehicle. Captain Jackson confirmed that he did not give chase to this person because he wanted to secure the vehicle and “make sure that no one else was inside the vehicle.” Captain Jackson stayed with the vehicle until after the defendant was apprehended. After the driver fled over the fence and into the neighborhood, a perimeter was set up.

Officer Francisco Campos of the Gretna Police Department testified that he, in his own patrol unit, had joined the chase of the vehicle before it crashed at the dead-end. Officer Campos testified that he also observed the crash and the fleeing of one person from the vehicle’s driver’s side. Officer Campos testified that the | ¡¡first time he saw defendant was when defendant fled the vehicle, climbed a fence, and escaped into a neighborhood.

Thereafter, Officer Campos testified that he set up a perimeter in an attempt to apprehend the driver. Officer Campos testified that the next time he saw the driver was when defendant emerged from the same area he had escaped into at Isbell and Perry streets. There, Officer Campos and the driver made eye contact before the driver then fled back into the neighborhood. Officer Campos testified that he saw the driver jump several fences in back yards.

Officers maintained the perimeter and were able to narrow down which back yard the driver went into. Officer Campos subsequently found the driver crouched and hiding underneath a raised pool deck in a back yard on Isbell Street. Officer Campos ordered the driver to come out, and he eventually did so. Officer Campos testified that after a brief fight between him and the driver, the driver surrendered and was placed in handcuffs. At trial, Officer Campos identified the driver of the car that he pursued that night as defendant.

Officer Campos advised defendant of his rights, which he appeared to understand. Defendant then told the officer that he had been kidnapped. He explained that he was in the area to visit friends, and that a dark-colored vehicle pulled up, after which a black male told him to get inside the vehicle. Defendant claimed he complied with his demands because the black male was armed. Defendant also told Officer Campos he did not know who the vehicle belonged to.

Officer Campos testified that defendant’s statement did not match the facts revealed by his investigation. Officer Campos testified that he never saw a second person in the area where the perimeter had been set up. Furthermore, a police dog was used at the scene to attempt to locate a second person, but no one was found. [,(Additionally, Officer Campos later learned that the vehicle from which defendant fled actually belonged to his girlfriend.

Officer Campos testified also that in a search of the car defendant was driving, after defendant’s apprehension, he collected a hat, gloves, and a cloth-type material from inside the vehicle. Officer Campos confirmed that these pieces of evidence were the same pieces of evidence which were subject to DNA testing.

Adriana Perez, an expert forensic DNA analyst, testified that once she obtained a buccal swab from defendant, she compared that reference sample, through DNA testing, to cuttings from a black shirt, a hat and the thumb portion of a glove retrieved from the crime scene. Regarding the comparison to the cutting from the black shirt, Ms. Perez testified that although there was DNA present, there was insufficient DNA to generate a genetic profile for comparison purposes. Regarding the comparison of the hat cutting to defendant’s DNA, Ms. Perez testified that the DNA from the cutting of the hat, was inconsistent with the DNA profile obtained from defendant; however, she explained that the DNA on the hat was from a male relative of defendant. However, she explained that it was not uncommon for a person to wear a garment once and leave little or no DNA behind. Finally, Ms. Perez also testified that the DNA obtained from the glove was consistent with being a mixture from at least three individuals. Ms. Perez testified that defendant could not be excluded as a donor of the DNA in this mixture. Furthermore, while approximately 99.9 percent of the global population could be excluded as a donor in this mixture, all males in defendant’s lineage could not be excluded as a donor of the DNA found.

| nBrittiny Adams, defendant’s girlfriend, testified that on May 27, 2011, she gave defendant $400.00 and loaned him her vehicle, a black Chevy Impala, after which he left to go to Boomtown casino at approximately 8:30 p.m. Regarding what defendant was wearing when he left for the casino, Ms. Adams testified that defendant was wearing blue jean shorts that came to some point between his knees and his ankles. She further testified that she did not have a hat or gloves in her vehicle, and defendant was not wearing a hat or gloves that night. Ms. Adams confirmed that the vehicle photographed in the state’s exhibits was her vehicle. Ms. Adams also testified that, after defendant’s arrest, she retrieved her car from the Gretna police department.

Defendant testified to an alternative version of events. He testified that on May 27, 2011, he left his girlfriend’s residence at about 8:00 p.m. with $400.00 that his girlfriend had given him, and drove his girlfriend’s car, a black Impala, to Boom-town Casino. Defendant stayed at the casino until midnight, and then left with approximately $230.00. When he got within a couple of blocks of his girlfriend’s house, he had car problems so he pulled to the side of the road and activated his hazard lights. Defendant claimed he stayed there for an hour or so waiting for help. At some point, he started the car, after which somebody approached him with a gun. Defendant testified this person demanded that defendant move to the passenger side and then got into the car’s driver’s side. He was unable to tell what the person was wearing or what race he was. The person began driving the car at a high rate of speed, and defendant heard police cars coming behind them.

At some point, the person told defendant to get out of the car while it was still moving, and he complied. Defendant testified that he ran from the point where he exited the car, jumped a fence, and hid under a pool deck because he was |12scared. When he saw the police officers, he felt like it was safe for him to come out. Defendant explained that when he came out with his hands up, he tried to tell the officers he had been carjacked, but the officers beat and kicked him. He denied that he had to be pulled out from under the pool deck. Defendant acknowledged that he sustained injuries and had to go to the hospital. He denied being in possession of a gun that morning. Defendant also denied entering Braxton’s on the morning of May 28, 2011, and he claimed he had never seen or met Mr. Rivas or Mr. Kennedy before.

In support of the state’s charge that defendant was guilty of being a felon in possession of a firearm, the trial court heard testimony from Nikki Passalaqua, an expert in the field of latent print identification, analysis, and comparison. The trial court admitted state’s exhibit two, a ten-fingerprint card Ms. Passalaqua took from defendant the previous morning. The court then admitted into evidence, state’s exhibits three, four, and five. Respectively, these were certified conviction packets showing convictions for: possession of cocaine in Orleans Parish Criminal Court Docket Number 467-69; first degree robbery in Orleans Parish Criminal Court Docket Number 403-947; and simple robbery in Orleans Parish Criminal Court Docket Number 404-051. Each of these packets contained the finger-prints of the person convicted. Ms. Passalaqua testified that defendant’s fingerprints matched the fingerprints for the convictions reflected in state’s exhibits three, four, and five.

DISCUSSION

In his appeal to this Court, defendant assigns two errors. First, defendant argues that the evidence was insufficient to support his conviction. Second, defendant argues the trial court erred when it excluded from evidence at trial, the |13fact that there was a “CODIS hit” indicating that the DNA from a different person, who had committed a prior sex crime, was found on a piece of evidence.

Assignment One

In his first assignment of error, defendant argues the evidence was insufficient for the jury to find that he was the person who committed the armed robbery in question. Defendant was convicted of both one count of armed robbery in violation of La. R.S. 14:64, and one count of being a convicted felon in possession of a firearm in violation of La. R.S. 14:95.1. Defendant’s argument on this appeal however does not directly contest the sufficiency of the evidence to support his conviction for being a felon in possession of a firearm. Moreover, defendant does not argue that the state failed to prove any of the essential statutory elements of his conviction for armed robbery; rather, defendant contends the state failed to prove beyond a reasonable doubt his identity as a perpetrator of the armed robbery. Defendant claims the state failed to negate a reasonable probability that a second person committed the crime and then later kidnapped him.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600.

An appellate court’s primary function is not to redetermine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury’s conclusion. State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671, 677.

Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

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. State v. Draughn, 05-1825 (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 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the state is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. Draughn, 950 So.2d at 593. Positive identification by one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

The state put forth sufficient evidence that defendant was the person who committed the armed robbery in this matter. The state presented evidence that showed a black male who wore gloves, a cap, and a mask robbed Mr. Rivas and Mr. Kennedy of $400.00 at Braxton’s Restaurant while armed with a gun. Mr. Kennedy identified defendant as the person who robbed the restaurant. After the robbery, the perpetrator carried a safe outside and then escaped in a dark-colored vehicle. This same vehicle was later identified as belonging to defendant's^girlfriend. Officers pursued the vehicle and noticed that there was only one black male inside of it. After a high speed chase, defendant leapt from the moving vehicle (which later crashed), discarded something, and then ran through the neighborhood, jumping fences. A short time later, officers found defendant hiding underneath a pool deck. A brief struggle ensued, and defendant was apprehended. Defendant told the officers he did not know who the vehicle belonged to. A gun was recovered from the scene where the vehicle crashed, and a safe and a magazine to a gun were found outside near the restaurant. Tests indicated that the gloves found in the vehicle contained defendant’s DNA. On the other hand, defendant denied robbing Braxton’s and claimed he was kidnapped.

After hearing the testimony, the jury obviously believed the state’s witnesses and rejected defendant’s story. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

We find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant’s armed robbery conviction. We further find that every reasonable hypothesis of innocence was excluded and that the state negated any reasonable probability of misidentification. Although defendant claimed he was kidnapped and that the driver told him to exit the moving vehicle, Officer Schiro saw only one person sitting in the driver’s seat of the. vehicle, and at the end of the chase, only one person was seen exiting the vehicle’s driver’s side. No other person could be located on the scene even though a perimeter was set up and a police dog was used.

|16 Although Mr. Rivas could not identify defendant’s face as the face of the person who committed the crime against them, we find the state presented sufficient evidence to link defendant to the crimes charged. See State v. Mason, 59 So.3d 419, 419 (La.App. 5 Cir.2011). Accordingly, we conclude the evidence of defendant’s identity as a perpetrator of the armed robbery negates any possibility of misidentification. Therefore, this assignment is without merit.

Assignment Two

In his second assignment of error, defendant argues the trial court erred when it deemed inadmissible, evidence from a CODIS hit. CODIS is a system of databases, supported by the FBI, which contain DNA profiles that were collected from convicted offenders and arrestees. In this case, DNA taken from the hat found in the crashed vehicle matched an entry in a CODIS-supported database.

At a motion hearing on July 25, 2012, the trial court heard the state’s motion to exclude evidence of the CODIS hit. The state argued that any mention of CODIS or the name of the second person, who the CODIS database matched with the DNA, should be excluded from trial. The state conceded that the fact that the DNA from the hat did not match defendant should be allowed into evidence at trial. After hearing arguments, the trial court took the matter under advisement. The trial court issued an oral ruling on this matter the same day, stating,

The Court had taken under advisement the issue with regard to the admissibility of CODIS records and/or CODIS testimony from the defense. The Court is going to at this time deny that motion with regard to the admission of any closed records in that the State’s experts will testify relative to the DNA in this matter; and that those individuals who — the person that the State is calling with reference to the testimony of the DNA was not the person who conducted the testing relative to the CODIS information; however, the Court will allow the defense to ask the DNA expert any questions with regard to the DNA test and whether the defendant was included or excluded, 117could be included or could be excluded as a donor of the sample that was tested in this matter. And the Court will note the defense’s objection to the Court’s ruling.

Trial on defendant’s charges was held the next day, July 26, 2012.

Here, the evidence shows the trial court allowed the jury to hear the fact that hair on the hat belonged to a male family member of defendant. The trial court also allowed into evidence the fact that this DNA did not belong to defendant himself.

At trial, defense counsel sought to introduce into evidence a Jefferson Parish Sheriffs Office Regional DNA Laboratory report dated April 20, 2012. The report states that a search of an FBI database of DNA resulted in a match between the DNA sample from the hat and a person named “Tom Kelly Stewart.” However, the report further provides that an additional DNA specimen must be collected from Mr. Stewart to confirm this match pursuant to federal guidelines that oversee regulation of the national DNA database. The record shows that an additional DNA specimen was not collected from Stewart to confirm the match. The trial court did not allow this report into evidence. Defense counsel then proffered this evidence into the record for our review.

By excluding this evidence — the hit the CODIS database returned in connection with the DNA sample from the hat — the trial court did not permit the jury to infer that the donor of the DNA, found on the hat, was the person who committed the crime defendant was charged with committing, because that donor had committed a prior crime. In this ruling on an eviden-tiary matter, the trial court had great discretion in balancing the relevancy of the evidence against its prejudice and potential to confuse the jury. La. C.E. art. 403; State v. Duncan, 98-1730, p. 10 (La.App. 1 Cir. 6/25/99), 738 So.2d 706, 712-713. While the DNA found in |isthe hat has some relevance in that it shows that another person who committed a different crime may have worn the hat, we cannot say the trial court manifestly erred in excluding this evidence to prevent the jury from improperly concluding that this other person committed the crime at bar. See State v. Guillory, 12-0702 (La.App. 1 Cir. 12/21/12), 2012 WL 6681817, writ denied, 2013-0216 (La.8/30/13), 120 So.3d 258 (finding that the trial court did not manifestly err in excluding evidence that another person committed the charged crime). Accordingly, this assignment of error is without merit.

ERRORS 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. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals four errors patent. Despite these errors however, the only corrective action required by this Court is to advise defendant, by way of this opinion, of the time period within which he may file an application for post-conviction relief.

First, the trial judge failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars as required by La. R.S. 14:95.1(B). This Court has the authority to correct an illegal sentence at any time. La.C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. In State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842, this Court noted the defendant’s indigent status and declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine. Here, following Campbell, due to defendant’s indigent status, we refrain from exercising our authority to correct his illegally lenient sentence.

119Second, the record in this case does not disclose that defendant was advised of his rights prior to the multiple bill hearing. This was in violation of La. R.S. 15:529.1 which requires the trial court to advise a defendant of the allegations contained in the information, his right to a hearing, and his right to remain silent. State v. Haywood, 00-1584, p. 19 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 582. While this is an error, it is harmless. The failure of the trial court to advise a defendant of his right to a trial and to remain silent is harmless error when the multiple offender status is established by competent evidence offered by the state at a hearing, rather than by the admission of the defendant. Id. Here, defendant proceeded to the multiple bill hearing, and the state presented competent evidence at the hearing to establish his multiple offender status. Therefore, we find that the trial court’s failure to advise him of the specific allegations against him and of his right to be tried and to remain silent were harmless errors.

Third, defendant was convicted on July 26, 2012. On August 23, 2012, he filed a pro se motion for appeal that was denied. In that motion, defendant sought to appeal his convictions. However, that motion was premature as defendant had not yet been sentenced. Defendant was sentenced on the underlying charges on October 18, 2012. He was subsequently found to be a fourth felony offender and resentenced as such on January 7, 2013. On January 25, 2013, he filed another timely motion for appeal that was granted. In that motion, defendant specifically stated he was appealing the final judgment rendered on January 7, 2013. Because the prematurity of defendant’s first motion for appeal was cured when defendant was sentenced, we find that the issues he has raised on appeal regarding his convictions are properly before us.

Fourth, the record indicates that defendant was given an incomplete advisal regarding the post-conviction relief period under La.C.Cr.P. art. 930.8.6. The |2ntranscript shows that after the trial judge imposed the enhanced sentence, he advised defendant that he had “two years after the judgment of sentence has become final in these matters to file ... for post conviction [sic] relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis as found in original).

In accordance with this Court’s routine practice, we advise defendant, by way of 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 La.C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226, p. 14 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030.

CONCLUSION

For the foregoing reasons, we hereby affirm defendant’s convictions and sentences.

AFFIRMED.

      . The restaurant’s surveillance video was admitted into the record as state’s exhibit 19 and was published to the jury.

      . Emily Nguyen, the custodian of 911 system records for the Gretna Police Department, authenticated state’s exhibit 21 as a recording of a phone call to 911. That recording was then played for the jury. In this recording, the caller reported being robbed at 636 Franklin Street by a masked man wearing all black.

      . Mr. Kennedy testified that he knew defendant was the person who robbed the restaurant that night because he could identify defendant’s voice as the voice of the person who robbed him. Upon further questioning however, Mr. Kennedy admitted that he had not heard defendant speak in court that day and that this was the first time he had seen defendant since the night of the robbery.

      . While in pursuit, other police vehicles joined and eventually got in front of Officer Schiro's patrol unit. Because other officers were leading the pursuit, Officer Schiro did not see the car crash. However, Officer Schi-ro testified that he came on the scene of the car crash soon after it happened and recognized the crashed car as the car he had pursued.

      . Officer Campos also testified that after defendant was apprehended, he learned that a safe and a gun magazine were found on the ground just north of Braxton’s near or on Franklin.

      . Detective Richard Russ originally obtained defendant’s DNA by conducting a buccal swab on defendant. Before administering this buccal swab, Detective Russ obtained a search warrant allowing him to take this DNA.

      . Although defendant assigns insufficient evidence to support his conviction as his second assignment of error, we address it first. State v. Hearold, 603 So.2d 731, 734 (La.1992) (When the issues on appeal pertain to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.).

      . See Federal Bureau of Investigation, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.foi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet (last visited October 22, 2013).

      . This report was signed by a Ms. Brown and Ms. Dubourg.

      . The defendant’s commitment reflects that the trial judge informed defendant that he had two years after the judgment of conviction and sentence has become final to seek post-conviction relief. This however is not reflected in the transcript. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).


text:
    STATE of Louisiana v. Chadwick Joseph BOUDREAUX.
    No. 13-KA-394.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffiAppellant.
    Juan C. Labadie, Anthony J. Angelette, Jr., Attorneys at Law, Gretna, Louisiana, for Defendani/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

|2The State of Louisiana appeals from the trial court’s judgment granting defendant Chadwick Joseph Boudreaux’s motion to quash two predicate driving while intoxicated (DWI) convictions. We reverse the decision of the trial court and remand this case for further proceedings.

PROCEDURAL HISTORY

On November 7, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with DWI third offense, in violation of La. R.S. 14:98(A)(D). The bill of information alleged that defendant had two prior convictions of DWI in violation of La. R.S. 14:98 in Ascension Parish:

23rd JDC Case No 323-837, relating to offense on April 5, 2003; and 23rd JDC Case No. 332-667 relating to offense on December 20, 2003.

Both prior convictions were obtained by guilty pleas on the same date, October 26, 2005, with separate bills of information in the two cases, separate minute entries, and separate Boykin forms.

|aOn January 22, 2013, defendant filed a motion to quash based on La.C.Cr.P. art. 493.1, alleging that because the two Ascension Parish misdemeanor DWI pleas were taken on the same day, the cases were consolidated and that defendant was exposed to consecutive sentences in excess of six months. Defendant argues that he was entitled to a jury trial and he was informed only of his right to a judge trial. See State v. Hornung, 620 So.2d 816, 817 (La.1993). After a hearing on January 24, 2013, the trial court granted defendant’s motion to quash the two predicate offenses. This appeal by the State followed.

ASSIGNMENT OF ERROR

In its single assignment of error, the State contends that the trial court erred in granting defendant’s motion to quash the predicate offenses in the instant case, where the exhibits offered by the State reflect the existence of the prior guilty pleas and that defendant was represented by counsel; where defendant presented no affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the plea; and where defendant was not entitled to a jury trial on the predicates.

DISCUSSION

The State argues that it met its burden with respect to defendant’s prior guilty pleas and that the certified copies of the predicate convictions, on their face, provide no support for defendant’s assertion that the cases were consolidated. The State further argues that because the underlying cases for the predicate convictions were not consolidated, defendant was not entitled to a trial by jury.

Conversely, defendant argued below that he pled guilty to the two predicate convictions from the 23rd Judicial District Court for Ascension Parish “at the same time.” Defendant further asserted, “As a result, at the time he pled guilty, there was no law prohibiting the trial judge from sentencing defendant to six months 14parish prison in docket number 823-837, six months parish prison in docket number 332-667, and running both sentences consecutively.” Defendant concluded that because he was exposed to the possibility of a one-year sentence, he had the right to a jury trial, and because the trial court did not advise him of this right, “those pleas are legally defective and cannot be used as a predicate to the present third offense DWI.”

A motion to quash can be employed to attack the constitutionality of prior convictions used to enhance a DWI charge. State v. Moten, 99-552, p. 2 (La.App. 5 Cir. 11/30/99), 748 So.2d 1210, 1211. The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court. State v. Payton, 06-1202, pp. 3-4 (La.App. 4 Cir. 2/28/07), 954 So.2d 193, 195 (citing State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1208).

A presumption of regularity attaches to prior convictions in multiple offender DWI cases, and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 04-255, p. 5 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. In State v. Balsano, 09-0735, p. 8 (La.6/19/09), 11 So.3d 475, 479 (per curiam), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under La. R.S. 15:529.1, State v. Shelton, 621 So.2d 769 (La.1993), or in habitual offender DWI prosecutions, State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. This line of jurisprudence sets forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the recidivist habitual offender and driving while intoxicated statutes.

| ¡;The Louisiana Supreme Court’s decision in Carlos, established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. Balsano, supra. Adopting the Court’s prior opinion in Shelton, and acknowledging the presumption of regularity that attaches to prior final convictions, Carlos placed on the State the initial burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. Balsano, supra (citing Carlos, 98-1366 at 6, 738 So.2d at 559). If the State meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Balsano, supra (quoting Carlos, 98-1366 at 6-7, 738 So.2d at 559). If the defendant makes the required showing, the burden reverts to the State to produce a “perfect” Boykin transcript, i.e., one “which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin.” Balsano, supra (quoting Carlos, 98-1366 at 7, 738 So.2d at 559 n. 4 and Shelton, 621 So.2d at 775 n. 12). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Balsano, supra (quoting Carlos, 98-1366 at 7, 738 So.2d at 559).

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 642, writ denied, 03-3401 (La.4/2/04), 869 So.2d 874. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights [fim order to be valid. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Under Boykin v. Alabama, the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his privilege against self-incrimination, and his rights to a trial by jury and confrontation. State v. Payton, 04-1024, p. 4 (La.App. 5 Cir. 1/11/05), 894 So.2d 362, 365. The record must also show the defendant freely and voluntarily waived those rights. Id.

The Balsano court explained that Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemeanor offenses as to which the defendant does not have the right to a jury trial, thereby shrinking the three-right rule to two rights. Balsano, 09-0735 at 9, 11 So.3d at 479-80.

Defendant’s Predicate Pleas

We find that the State met its initial burden of proving the existence of the guilty pleas and that defendant was represented by counsel at the time of the guilty pleas. With respect to the conviction in case # 323-837, the State introduced a certified copy of the minute entry and commitment, and an executed “Waiver Of Rights Acknowledgement and Acceptance of Guilty Plea” form, reflecting a guilty plea and that defendant was represented by counsel, W. Valentine. Regarding the second predicate conviction in case # 332-667, the State similarly introduced a certified copy of the minute entry and commitment, and an executed “Waiver of Rights Acknowledgement and Acceptance of Guilty Plea” form, reflecting a guilty plea and that defendant was represented by counsel, W. Valentine. As such, the burden shifted to defendant to produce affirmative evidence showing an [ ./infringement of his rights or a procedural irregularity in the taking of the predicate pleas.

In his motion to quash, defendant sought to meet this burden by arguing that the predicate pleas were obtained without a lawful, knowing, and intelligent waiver of his right to jury trial, based upon the presumption that because “the two cases were consolidated” and defendant pled guilty to them at the same time, he was exposed to a maximum aggregate penalty exceeding six months imprisonment because the trial court could have sentenced him to consecutive six-month sentences.

In granting defendant’s motion to quash, the trial court relied on this Court’s opinion in State v. Mesman, 488 So.2d 1296 (La.App. 5 Cir.1986). In Mesman, the defendant was charged in separate bills of information with driving while intoxicated and improper lane usage. On appeal, this Court pretermitted discussion of the defendant’s assignment of error and instead reversed the conviction on error patent. Specifically, this Court found that because the defendant was entitled to a jury trial, First Parish Court for the Parish of Jefferson was without jurisdiction to hear the case. In holding so, the Court reasoned:

When several charges against a defendant are consolidated, the law considers-all charges as if they were originally joined in a single bill of information, and as a result the total possible punishment is the sum of the maximum possible for each charge. State v. Williams, 404 So.2d 954 (La.1981) (citation omitted). A defendant is entitled to a jury trial when he is exposed to a maximum aggregate penalty exceeding six months imprisonment. La. Const. Art. 1, sec. 17; State v. Laurendine, 439 So.2d 398 (La.1983); State v. Bouehe, [supra.] [485 So.2d 950 (La.App. 5 Cir.1986) ] Waiver of defendant’s right to trial by jury is never presumed. State v. Mc Carroll, 337 So.2d 475 (La.1976); State v. Bouche, supra.

Mesman, 488 So.2d at 1297. The State argues that Mesman is distinguishable from the present case, in that the two predicate charges, for which defendant was convicted, were never consolidated.

lRThis Court considered a similar issue in State v. Vu, 02-1243 (La.App. 5 Cir. 4/8/03), 846 So.2d 67. In that case, the defendant was charged with driving while intoxicated, fourth offense. The bill of information specified three predicate convictions for driving while intoxicated, first offense. The bill indicated that the three guilty pleas were entered on February 16, 2000, under separate docket numbers, for offenses that took place on separate dates. Id. at 69. The defendant filed a motion to quash the bill of information, which was denied. On appeal, the defendant argued that his predicate guilty pleas were constitutionally infirm because he was not advised of his right to a trial by jury. In holding that the defendant was not entitled to a jury trial of the predicate offenses, this Court reasoned:

We note that the three misdemeanor predicate charges were not consolidated for trial. Thus, the penalties need not be aggregated for purposes of determining the necessity of a jury trial. In those instances when more than one misdemeanor offense is charged by separate bills of information, but are consolidated for trial, the aggregate possible punishments are determinative of whether the defendant is entitled to a jury trial. State v. Hornung, 620 So.2d 816, 817 (La.1993).
In this case defendant was charged by three separate citations, each case had a different docket number, separate minute entries and separate waiver forms were executed for each. Although there was one colloquy, defendant requested that there be one plea colloquy for the three offenses. It does not appear there was any intent by the State or the defendant to consolidate the three cases. As such, standing alone, none of the misdemeanor offenses to which defendant pled guilty carried a fíne in excess of $1,000 or imprisonment in excess of six months. Accordingly, defendant was not entitled to a jury trial under the facts of this case. State v. Stewart, 02-196, pp. 6-7 (La.App. 3 Cir. 10/2/02), 827 So.2d 1277, 1279. Since defendant was not entitled to a jury trial, the trial judge correctly informed him during the colloquy that he was entitled to a “judge trial” and the predicate guilty pleas were not defective for enhancement purposes. This assignment of error is without merit. Id. at 74.

j^It was also noted that the defendant was advised of his right to a bench trial during his predicate conviction pleas, which was all that was required. Id. at 73.

In the instant case, at the January 24, 2013 hearing on defendant’s motion to quash, the State introduced Exhibits 1 and 2, pertaining to defendant’s previous DWI convictions in Case Numbers 323-837 and 332-667 respectively.

Under the same criteria used by this Court in Vu, supra, we find that defendant’s predicate DWI offenses were not consolidated for trial. First, the predicate offenses occurred on different dates, April 5, 2003, and December 20, 2003. Theoretically, a trial and sentencing on the first arrest could have taken place before the second ever occurred. Next, as the bill of information for his current charge indicates, defendant’s predicate charges were made by two separate citations. Each case had a different docket number, separate minute entries and separate waiver forms were executed for each. Defendant did not demonstrate, and it does not appear from the record, that there was any intent by the State or defendant to consolidate the two predicate cases. As such, standing alone, neither of the predicate misdemeanor offenses to which defendant pled guilty carried a fine in excess of $1,000 or imprisonment in excess of six months at the time the offenses were committed in 2003. Accordingly, we find that defendant was not entitled to a jury trial at the time of his pleas, and therefore the sentencing judge was not compelled to so ■inform defendant. Defendant was advised of his right to a judge trial, which was appropriate. See also State v. Hunter, 13-82 (La.App. 5 Cir. 7/30/13), 121 So.3d 782 (holding that where two misdemeanor cases were never consolidated, defendant had no right to trial by jury).

We further find that while the State met its initial burden under Carlos, supra, defendant produced no affirmative evidence at the hearing on his motion to quash showing an infringement of his rights or a procedural irregularity in the taking of the pleas. Specifically, defendant did not show that the cases for his two predicate DWI convictions were consolidated by his own motion or by motion of the State.

We find that defendant’s pleas to the two predicate offenses are not constitutionally infirm and may be used for enhancement purposes; the trial court erred in granting defendant’s motion to quash.

For the above discussed reasons, the decision of the trial court granting the motion to quash is reversed and the matter is remanded for further proceedings.

ERRORS 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. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

REVERSED AND REMANDED.

      . This Court noted that "Defendant's argument is based upon the supposition that the three predicate convictions were graduated in severity (i.e., first, second, third) and a third offense DWI is a felony, thus requiring a jury trial.”

      . During the motion to quash hearing, defense counsel acknowledged that there was nothing in the records of the two predicate convictions which showed that the cases had been consolidated, "There were two docket numbers. Essentially one DWI was filed in Docket 323-837. Another DWI was filed in Docket 332-667. When the matter came for trial, tire matter was considered. Discussions were had; that’s not a matter of record. What is a matter of record is that they consolidated the two cases, and Mr. Chadwick pled guilty to them at the same time." The record does not show that defendant's current counsel also represented him on the predicate offenses at issue.

      . 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).


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Shantell K. IVEY.
    No. 13-KA-426.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas Sanderson, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Shantell K. Ivey, has appealed her convictions and sentences for two counts of distribution of cocaine in violation of La. R.S. 40:967(A). For the reasons that follow, we affirm defendant’s convictions and sentences, grant defendant’s appellate counsel’s motion to withdraw as counsel of record for defendant, and remand this matter with instructions.

PROCEDURAL HISTORY

On February 1, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of distributing cocaine within 2,000 feet of a playground, violations of La. R.S. 40:981.3. On January 28, 2013, defendant pled guilty to two counts of distribution of cocaine, violations of La. R.S. 40:967(A), as alleged in an amended bill of information filed against defendant on that date. Also on that date, following a waiver of delays and pursuant to a plea agreement, defendant was sentenced to 15 years imprisonment at hard labor on each count, with the first two years of the sentences to be served | ¡.without the benefit of probation, parole, or suspension of sentence, with both sentences to run concurrently with each other, as well as with any other sentences defendant may have been serving at that time. Defendant was also given credit for time served. The State then filed a habitual offender bill of information against defendant, to which defendant stipulated to being a second felony offender. The trial court then vacated defendant’s original sentence on count one, and sentenced defendant to 15 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for the first two years, and without the benefit of probation or suspension of sentence for the entire sentence. Defendant was also given credit for time served. Defendant’s enhanced sentence was ordered to run concurrently with her sentence imposed on count two.

Defendant’s pro se motion for an appeal was granted on March 6, 2013 and appellate counsel was appointed.

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, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed appellate counsel requests permission to withdraw as counsel of record for defendant.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support ptheir 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). The Louisiana Supreme Court approved this procedure in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

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

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel also indicates that defendant was informed of the sentences that she would receive, and was sentenced accordingly.

Appellate counsel has filed a motion to withdraw as attorney of record for defendant which states that she has mailed defendant a copy of her brief. Additionally, this Court sent defendant a letter by certified mail informing her that an Anders brief had been filed on her behalf and that she had until July 7, 2013 to file a pro se supplemental brief. Defendant has not filed a pro se brief.

IsThe State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case, has complied with the procedure set forth in An-ders, and requests that this Court affirm defendant’s convictions and sentences.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The amended bill of information to which defendant pled properly charged defendant: it plainly, concisely, and definitely states the essential facts constituting the offenses charged, and cites the statute that defendant violated. It also sufficiently identifies defendant and the crimes charged. Also, as reflected by the minute entries and commitment, defendant appeared at the guilty plea proceedings and sentencing.

The record shows that defendant filed a pro se motion to quash; however, no ruling on this motion appears in the record. Regardless, a defendant waives his outstanding pre-trial motions by pleading guilty without complaining that the trial court had neither heard nor ruled on them. State v. Fleming, 11-135 (La.App. 5 Cir. 11/29/11), 80 So.3d 634, 638.

Defendant pled guilty as charged to the amended bill of information. If a defendant pleads guilty, he normally waives all non-jurisdietional defects in the proceedings leading up to the guilty plea, and precludes review of such defects, either by appeal or on post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or on post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. 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. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

In the present case, the plea colloquy and waiver of rights form shows that defendant was aware that she was pleading guilty to two counts of distribution of cocaine. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of her right to a jury trial, her right to confrontation, and her privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that she understood that she was waiving these rights by pleading guilty. During the colloquy with the trial court, defendant responded affirmatively that she understood that she was waiving these rights. Defendant further indicated that she had not been forced, coerced, or threatened to enter her guilty pleas.

Defendant was advised that she faced a maximum possible sentence of 30 years imprisonment at hard labor for distribution of cocaine. During the colloquy, defendant was told that she would be sentenced to 15 years imprisonment at hard labor on each count, with the first two years of the sentences to be served without the benefit of probation, parole, or suspension of sentence. By signing the waiver of rights form, defendant also indicated that she understood the sentence she would receive for her pleas of guilty. With respect to defendant’s stipulation to the habitual offender bill of information, filed immediately after defendant’s original pleas and sentencing, the record once again shows that defendant was advised of and waived her habitual offender rights by signing the waiver of rights form for the 17habitual offender bill of information and in a colloquy by the trial court. Defendant was also advised of the sentence she would receive under the habitual bill: 15 years imprisonment at hard labor. Defendant indicated that she understood the sentence she would receive for stipulating to the habitual offender bill. The trial court then vacated the sentence he had previously imposed on defendant on count one, and then sentenced defendant as a second felony offender under La. R.S. 15:529.1 to 15 years imprisonment at hard labor, with the first two years to be served without the benefit of probation, parole, or suspension of sentence, and with the entire sentence to be served without the benefit of probation or suspension of sentence. The sentence was ordered to run concurrently with the sentence imposed on count two, and with any other sentence defendant may have been serving at that time. Defendant was also given credit for all time served.

Furthermore, La.C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. See State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, it is noted that defendant’s sentences fall within the sentencing ranges set forth in the respective statutes and do not present any non-frivolous issues for appeal.

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

| ^ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975).

First, we note that it is not clear from the record whether defendant was arraigned on the original or on the amended bill of information. Nevertheless, any error in not arraigning a defendant on all counts is waived by the defendant when he enters his guilty plea without objecting thereto. La.C.Cr.P. art. 555; State v. Clofer, 11-494 (La.App. 5 Cir. 11/29/11), 80 So.3d 639.

Next, it is noted that on the date of sentencing, the trial court’s original sentence for counts one and two were 15 years on each count to run concurrently, with the first two years of each sentence to be served without the benefit of probation, parole, or suspension of sentence. The commitment indicates, however, that “[t]he sentence is to be served without the benefit of parole, probation or suspension of sentence.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, this matter is remanded to the trial court for correction of the commitment regarding the restriction of benefits as to count two (ie., that only the first two years of the sentence imposed on count two, rather than the entire sentence imposed on count two, is to be served without the benefit of probation, parole, or suspension of sentence). On remand, the trial court is directed to make the appropriate entries on the commitment reflecting this correction and to direct the Clerk of Court to transmit the corrected commitment to the officer in charge of the institution to which defendant has been sentenced and to the Department of Correction’s Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam). Because of the need for correction of the commitment, a copy of this opinion shall also be sent to the Clerk of Court of the trial court.

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are hereby affirmed, defendant’s appointed appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted, and this matter is remanded to the trial court for the limited purpose of correcting the commitment as discussed above.

AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS.

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

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