author: GUIDRY, J.

text:
    Naomi SMITH v. Michael KOPYNEC, John Oleh Kopynec, Elizabeth Kopynec, and XYZ Insurance Company.
    No. 2012 CA 1472.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      C. Chadwick Boykin, Baton Rouge, LA, for Plaintiff-Appellant Naomi Smith.
    Brad J. Brumfield, Baton Rouge, LA, for Defendant-Appellee John Oleh Kopy-nec, Elizabeth Kopynec, and America First Insurance Company.
    C. James Rothkamn, Jr., Baton Rouge, LA, for Defendant Michael Kopynec.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   GUIDRY, J.

| gPlaintiff filed suit seeking to recover damages after she and her pet schnauzer were attacked, for a second time, by a pit bull. The second attack resulted in the killing of the pet schnauzer and the plaintiff sustaining injuries. The defendant landowners and their insurer filed a successful motion for summary judgment, and the trial court dismissed the plaintiffs claims against landowners with prejudice. Plaintiff now appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On or about October 3, 2010, Naomi Smith was walking her pet schnauzer near her home located at 2425 East Contour Drive in East Baton Rouge Parish. During this walk, a pit bull named Boondock, who was owned by Michael Kopynec, escaped from the premises located at 2436 East Contour Drive and attacked Naomi and her pet. Animal Control was called and removed the pit bull. Michael subsequently reclaimed Boondock and brought him back to 2436 East Contour Drive, which was where Michael resided and maintained the pit bull. The property, however, was owned by Michael’s parents, John and Elizabeth Kopynec. Thereafter, on October 9, 2010, Naomi and her pet schnauzer were again out walking when Boondock attacked her and her pet schnauzer a second time. During this second attack, the pet schnauzer was killed, and Naomi was injured.

On October 4, 2011, Naomi filed a petition for damages, naming Michael, as the owner of Boondock, John and Elizabeth, as the owners of the property where the pit bull was being maintained, and America First Insurance Company, as their insurer, as defendants. In response to Naomi’s petition for damages, John and Elizabeth filed a peremptory exception raising the objection of no cause of faction. Naomi amended her petition. Thereafter, John, Elizabeth, and America First moved for summary judgment, alleging that Naomi could not prove that John and Elizabeth knew or should have known of the presence of the dog on their property on October 9, 2010. Following a hearing, the trial court granted the motion for summary judgment to dismiss all claims against John and Elizabeth with prejudice and to dismiss the claims against America First with prejudice insofar as the insurer’s policy provided coverage for John and Elizabeth. This devolutive appeal followed.

STANDARD OF REVIEW

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party’s burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341. An appellate court’s review of a summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. R.G. Claitor’s Realty v. Rigell, 06-1629, p. 4 (La.App. 1st Cir.5/4/07), 961 So.2d 469, 471-72, writ denied, 07-0214 (La.9/21/07), 964 So.2d 340.

|4In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia v. Lakeview Regional Medical Center, 08-1369, p. 3 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 628. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center. LLC v. Education Partners, Inc., 08-0734, p. 10 (La.App. 1st Cir.12/23/08), 5 So.3d 225, 232. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Guardia, 08-1369 at p. 4, 13 So.3d at 628.

DISCUSSION

On appeal, Naomi essentially argues that the trial court erred in finding that “absent any knowledge [that] the dog had been returned to the premises, [John and Elizabeth] had no duty to take any further action at that time.”

It is undisputed that John and Elizabeth did not own Boondock. As non-owners, the strict liability of an animal owner under La. C.C. art. 2321 cannot be imputed to them. Bradford v. Coody, 08-1059, p. 5 (La.App. 1st Cir.12/23/08), 6 So.3d 815, 817. A landowner, however, can be held liable for vices or defects in his property pursuant to La. C.C. arts. 2317 and 2317.1. According to La. C.C. art. 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for ... the things which we have in our custody.” Moreover, the custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of | ¡¡the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. La. C.C. art. 2317.1.

The 1996 amendment enacting La. C.C. art. 2317.1, effective April 16, 1996, abolished the concept of strict liability that governed the prior interpretation of La. C.C. art. 2317. Thus, a more appropriate term for liability under La. C.C. arts. 2317 and 2317.1 might now be “custodial liability,” but such liability is nevertheless predicated upon a finding of negligence. Two essential elements of such negligence, under the duty-risk analysis of delictual liability, are the existence of a legal duty of the alleged tortfeasor toward the injured person, and the breach of such duty by the alleged tortfeasor. Jackson v. Brumfield, 09-2142, p. 3 (La.App. 1st Cir.6/11/10), 40 So.3d 1242, 1243.

A landowner may also be found liable under La. C.C. arts. 2315 and 2316 for general negligence for injuries caused by a tenant’s animal. See Bradford, 08-1059 at p. 5, 6 So.3d at 817. In either case, it has been held that to impose liability on a landowner for injuries caused by a tenant’s animal, the landowner must have knowledge of the animal’s vicious propensities. Turnbow v. Wye Electric, Inc., 38,948. p. 3 (La.App.2d Cir.9/22/04), 883 So.2d 469, 472; Murillo v. Hernandez, 00-1065, p. 6 (La.App. 5th Cir.10/31/00), 772 So.2d 868, 871. Additionally, it has been held that the landowner must have knowledge of the animal’s presence on his property. Windham v. Murray, 06-1275, p. 7 (La.App. 4th Cir.5/30/07), 960 So.2d 328, 333. This knowledge gives rise to a duty of care that is owed by the landowner. See Bradford, 08-1059 at p. 5, 6 So.3d at 817; Windham, 06-1275 at p. 7, 960 So.2d at 333.

Duty is a question of law. Simply put, the inquiry is whether a plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his or her claim. Fredericks v. Daiquiris & Creams of Mandeville, L.L.C., 04-0567, p. 4 (La.App. 1st Cir.3/24/05), 906 So.2d 636, 639, writ denied, 05-1047 (La.6/17/05), 904 So.2d 706. Although the determination of whether to assign a legal duty is fact specific, the issue of whether there is a duty is ultimately a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376, p. 6 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627, writ denied, 03-1579 (La.10/3/03), 855 So.2d 315. When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Fredericks, 04-0567 at p. 4, 906 So.2d at 639.

In seeking summary judgment, John, Elizabeth, and America First pointed out the absence of factual support to establish that John and Elizabeth knew of the presence of Boondock on their property on October 9, 2010, through the deposition testimony of John, Elizabeth, and Michael. Specifically, they asserted:

After the October 3, 2010 incident, John and Elizabeth Kopynec were aware that the animal was confiscated and quarantined by animal control. While the dog was quarantined, John and Elizabeth Kopynec told their son to get rid of the dog.... The landowners only learned that the dog had returned to their property when they learned of the October [9], 2010 incident that is the subject matter of this litigation.... Having told their son to get rid of the dog, having no knowledge of the dog’s return, and having no time to learn of the return, plaintiff cannot prove that John and Elizabeth Kopynec bear any responsibility for her alleged damages. [Emphasis added.]

In opposing the motion for summary judgment, Naomi did not dispute that John and Elizabeth had told Michael to get rid of the dog. Instead, relying on the same depositions, Naomi argued that it was not reasonable for John and Elizabeth to believe that Michael had gotten rid of the dog because he had shown a pattern of 17being incapable of controlling the dog, which had escaped from the East Contour Drive property on several prior occasions.

A motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge or of issues that require a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case. Greater Lafourche Port Commission v. James Construction Group, L.L.C., 11-1548, p. 7 (La.App. 1st Cir.9/21/12), 104 So.3d 84, 88-89. However, we find no merit in Naomi’s assertion that Michael’s failed attempts to stop the dog from escaping from the property demonstrated that it was not reasonable for John and Elizabeth to believe that Michael would get rid of the dog as requested. To the contrary, Michael testified that he agreed with his parents that he should get rid of the dog and that he intended to do so; however, he stated that he did not tell his father that he did not think he could get rid of the dog immediately. He also stated that he did not know if he specifically told his father he would bring the dog back to the property prior to the October 9, 2010 incident.

Based on their instructions to Michael following the October 3, 2010 incident, the record establishes that John and Elizabeth believed: (1) the dog was still in the custody of animal control as of October 9, 2010, and (2) that the dog would not be brought back to the property. Naomi did not present any evidence to discredit this belief or to otherwise indicate that John and Elizabeth knew or should have known of Boon-dock’s presence at their property on October 9, 2010. Thus, we find the trial court properly granted summary judgment based on the finding that John and Elizabeth did not know of the dog’s presence. Accordingly, we affirm the summary judgment rendered by the trial court. All costs of this appeal are cast to the appellant, Naomi Smith.

AFFIRMED.

      . While the record reveals that Kopynec is Elizabeth's last name and that she is married to John, she expressed a preference to be called "Mrs. Powers” at her deposition; however, for the purposes of this opinion, we shall refer to her with the last name of Kopynec.

      . Most of the cases regarding landowner liability for injuries caused by a tenant’s animal primarily focused on the landowner's knowledge of the animal's vicious propensities and premised liability on La. C.C. arts. 2315 and 2316. However, the trial court in this matter and the court in Windham v. Murray, 06-1275 (La.App. 4th Cir.5/30/07), 960 So.2d 328, further premised potential liability on the landowner’s knowledge of the animal's presence on his property and on La. C.C. arts. 2317 and 2317.1.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    HOUSING AUTHORITY OF NEW ORLEANS v. Keyimi KING.
    No. 2012-CA-1372.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Keith E. Green, Jr., Housing Authority of New Orleans, New Orleans, LA, Robert B. Barbour, Interim General Counsel, for PlaintiffAppellee.
    Hardell H. Ward, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR, Judge MAX N. TOBIAS, JR, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| defendant, Keyimi King, suspensively appealed the August 9, 2012 First City Court judgment in favor of the plaintiff, Housing Authority of New Orleans (“HANO”), ordering the eviction of Ms. King from the premises located at 1114 North Rocheblave Street.

On July 6, 2012, HANO filed a Rule for Possession of Premises asking that Ms. King be evicted from the premises at 1114 North Rocheblave Street. The eviction request was based on HANO’s allegation that Ms. King violated the “One Strike Policy” due to the commission of criminal activity, including being arrested for interfering with a police investigation, battery on a police officer, resisting arrest and threats on an officer. In the Notice to Vacate sent to Ms. King by HANO on June 22, 2012, HANO referred to Ms. King’s arrest on the above-stated charges on May 4, 2012. HANO stated in this notice that the criminal activity of Ms. King on May 4, 2012 was a violation of her lease agreement. The notice stated that “HANO has adopted a ‘One Strike and You’re Out’ policy which means |2that in addition to the reasons for termination contained in Paragraph IX of the Residential Lease Agreement, HANO may terminate the Lease for the following:

Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises or other residents; Any drug-related criminal activity on or off the premises; Any pattern of alcohol abuse by any resident, member, or guest that threatens the health safety, or right to peaceful enjoyment of the premises or other residents. 24 Code of Federal Regulations 966.4.”

The notice directed Ms. King to vacate the premises within ten days, or HANO would file for an eviction proceeding in First City Court. The record includes a copy of HANO’s lease with Ms. King, although the lease was not introduced at the trial on the eviction. The pertinent language in Section IX of the lease, while not identical to the Code of Federal Regulations section cited in the Notice to Vacate, is similar to that language and states that a resident has an obligation:

(£)To assure that no Resident, any member of the household, or guest, engages in:
(1) Any criminal [activity] including, but not limited to[:] the possession of drugs, the possession with intent to distribute drugs and/or the manufacturing of drugs as defined in Section 102 of the Controlled Substance Act, crimes of violence against persons and/or property committed on or off the residence.
(n) To assure that no other person under the Resident’s control engages in:
—Any criminal activity that threatens the health, safety or right to peaceful enjoyment of the residence by other residents;
Is — Any drug-related criminal activity on the residence.

In her answer to the Rule for Possession of Premises, Ms. King noted that on May 7, 2012, she pled not guilty to the charges against her. She also stated that the incident that led to her arrest took place on the corner of Bienville and Crozat Streets, approximately two miles away from her apartment on North Rocheblave Street. The police report of the May 4, 2012 incident is in the record, although it was not introduced at the eviction proceeding.

Ms. King’s answer also alleged that her actions during the incident in question were in response to an illegal and unconstitutional search of a vehicle by a police officer. Ms. King also urged several other reasons why the trial court should exercise its discretion to not terminate her lease.

At the eviction proceeding, HANO presented no testimony or documentary evidence. Oral argument of counsel was presented to the trial court, after which the court ordered that the Rule for Possession of Premises be made absolute, and ordered the eviction of Ms. King. Prior to that ruling, the trial court stated her finding that Ms. King’s arrest on the above-stated criminal charges warranted her eviction under her HANO lease, regardless of the ultimate outcome of those charges. After issuing her ruling, the trial court allowed Ms. King to proffer her testimony and the testimony of her sister who was with her on the night of the incident leading to criminal charges against Ms. King. Ms. King’s proffered testimony indicated that the seatbelt infraction that led to the traffic stop prior to 14her arrest occurred as she and her sister drove through the Iber-ville Housing Development.

A judgment of eviction must be reversed when the lessor fails to prove the legal ground upon which the lessee should be evicted. Kenneth and Allicen Caluda Realty v. Fifth Business, L.L.C, 06-608, p. 4 (La.App. 5 Cir. 12/27/06), 948 So.2d 1137, 1138. In Interstate Realty Management Company v. Price, 11-1131, p. 8 (La.App. 4 Cir. 3/7/12), 86 So.3d 798, 803, writ denied, 12-762 (La.5/18/12), 89 So.3d 1196, this Court referred to the “One Strike Policy” in a lease agreement for a subsidized public housing complex, and affirmed a judgment of eviction, finding that “[a] review of the record demonstrates that sufficient evidence was presented to the trial court to establish that Appellants violated numerous terms of the lease agreement, particularly the provision which provided that residents must ensure that no person under a resident’s control may engage in ‘[a]ny criminal activity that threatens the health, safety or right to peaceful enjoyment of the residence by other residents.’ ” (emphasis added.) See also River Garden Apartments v. Robinson, 12-938 (La.App. 4 Cir. 1/23/13), 108 So.3d 352.

As stated above, HANO offered no testimony or documentary evidence at the eviction proceeding. HANO offered argument of counsel only. Argument of counsel, no matter how artful, is not evidence. Houston v. Chargois, 98-1979 (La.App. 4 Cir. 2/24/99), 732 So.2d 71, 73. Although the record in this case includes the lease agreement and the police report involving the incident that led to Ms. King’s arrest on May 4, 2012, HANO did not attempt to introduce either item |fiat trial. The police report alone, without proper authentication, would have constituted inadmissible hearsay. See La. C.E. article 803(8)(b)(i). Despite the fact that the police report was not properly authenticated or introduced into evidence, the transcript of the eviction trial shows that the trial court relied on it in her decision to order the eviction of Ms. King. It was legal error for the trial court to do so.

Where legal errors of the trial court have tainted the fact finding process, the verdict below is not reviewed under the manifest error standard and, if the record is complete, the appellate court may make a de novo review of the record and determine the preponderance of the evidence. Urban Homeowners’ Corp. v. Abrams, 96-1237, pp. 4-5 (La.App. 4 Cir. 3/26/97), 692 So.2d 673, 675 (trial court erroneously based its award of damages on inadmissible hearsay). After review of the record, we conclude that HANO did not carry its burden of proving that Ms. King’s actions were in violation of her lease agreement by a preponderance of the evidence. Therefore, we find that the trial court erred in granting the Rule of Possession of Premises and ordering the eviction of Ms. King.

For the reasons stated above, the trial court judgment of August 9, 2012 is hereby reversed.

REVERSED

      . Trial on the criminal charges against Ms. King had not yet occurred when the eviction proceeding was held.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Philip WILSON.
    No. 2012-KA-0920.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for the State/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   ROLAND L. BELSOME, Judge.

hThe defendant appeals his criminal convictions asserting that the trial court incorrectly denied his motion to suppress the evidence and statements. We amend the defendant’s multiple offender sentence and affirm the convictions and sentences, as amended.

STATEMENT OF THE CASE

On June 15, 2011, the defendant, Philip Wilson, was charged <by bill of information with possession with the intent to distribute cocaine (count one) and obstruction of justice (count two). The defendant pled not guilty at arraignment. After a hearing, the trial court found probable cause and denied the defendant’s motions to suppress the evidence and statements. The defendant later filed a motion for reconsideration of the trial court’s previous rulings.

The State amended count one of the bill of information to attempted possession with the intent to distribute cocaine on April 25, 2012. On the same day, the defendant pled guilty as charged to both counts under State v. Crosby, 338 So.2d 584, 588 (La.1976). He was sentenced to eleven years at hard labor on count one and five years at hard labor on count two, to be served concurrently. Two days later, the State filed a multiple bill of information alleging that the defendant was a second felony offender utilizing count one as the underlying offense. The defendant objected, asserting that the State had agreed not to file a multiple bill, and the trial court allowed the defendant to withdraw his guilty plea on count one only.

On May 4, 2012, the defendant again entered a Crosby plea on count one to attempted possession of. cocaine with the intent to distribute. In particular, he reserved his right to appeal the trial court’s denial of his motions to suppress, and reconsider. The trial court then sentenced the defendant to eleven years at hard labor on count one. In addition, the defendant pled guilty to the multiple offender bill of information. Consequently, the trial court vacated the previous sentence on count one and resentenced the defendant to eleven years at hard labor without benefits.

ERRORS PATENT

The record reflects that the trial court improperly restricted parole eligibility on the defendant’s eleven-year multiple offender sentence. Although Section “G” of the multiple offender statute restricts probation and suspension of sentence, it does not restrict parole. La. R.S. 15:529.1(G); State v. Young, 02-1280, p. 6 (La.App. 4 Cir. 1/22/03), 839 So.2d 186, 191. Thus, the trial court improperly denied defendant parole eligibility. Pursuant to La.C.Cr.P. art. 882, an appellate court may correct an illegal sentence. Therefore, the defendant’s multiple offender sentence is amended to delete the restriction on parole.

DISCUSSION

The defendant assigns as error the trial court’s denial of his motions to suppress the evidence and statements. He argues that the evidence and statements were obtained illegally.

Detective Keith Elsensohn of the New Orleans Police Department was the only witness to testify at the suppression hearing. Detective Elsensohn testified that he received information from a confidential informant that a black male, known as “Dooley,” was selling crack cocaine from 2923 Dumaine Street. On April 28, 2011, Detective Elsensohn conducted a controlled purchase, whereby the informant was greeted at the door by an older black male; he then entered the residence and exited shortly thereafter. After the purchase was complete, the informant immediately met with the detective at a prearranged location and presented the cocaine he had purchased.

The following day, Detective Elsensohn obtained a search warrant for the Dumaine Street residence. On May 30, 2001, while preparing to execute the warrant with a member of the DEA task force, Detective Elsensohn observed the defendant exit the residence along with two other subjects. Detective Elsensohn and the DEA agent followed the trio and opted to stop the defendant.

|4Upon exiting the vehicle and identifying themselves as police officers, the defendant began to run. At that time, Detective Elsensohn observed the defendant insert a clear plastic bag “the size of a pingpong ball” into his mouth, which he began to chew “violently.” After a struggle with the officers, the defendant started to spit out the contraband that he could not consume. At that time, Detective El-sensohn recognized the contraband as crack cocaine. The contraband also field tested positive for cocaine.

Detective Elsensohn notified EMS, placed the defendant in handcuffs, and advised him of his Miranda rights. Following a search incidental to arrest, two hundred dollars cash was recovered from the defendant’s pants pocket. While accompanied by Detective Elsensohn, the defendant was transferred to the hospital in an EMS unit. During the transport, Detective Elsensohn overheard the defendant tell the EMS technician that he had consumed heroin an hour earlier and that he had swallowed about eighty percent of his contraband. After being treated at the hospital, Detective Elsensohn spoke to the defendant and learned that his mom nicknamed him “Dooley” as a child. Initially, he stated that he had swallowed over 40 grams of cocaine; however, he later expressed it was only about an ounce.

In support of his argument, the defendant makes three points. One, the evidence recovered from his person was seized in violation of the Fourth 1 ^Amendment. Two, his two statements were obtained without a Miranda waiver. Three, his statement to the EMT was privileged and therefore inadmissible.

In reference to his first claim regarding the evidence, the defendant asserts that Detective Elsensohn lacked reasonable suspicion to conduct an investigatory stop; therefore, he challenges the admission of the cocaine and money recovered from his person.

Because the cocaine and money were seized without a warrant, the State had the burden of showing a lawful basis for the seizure. See La.C.Cr.P. art. 703; State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. We review a trial court’s ruling on a motion to suppress under the abuse of discretion standard. Wells, supra. Although it is well-settled that an appellate court should review a trial court’s rulings under a deferential standard with regard to factual determinations, its legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751 (citation omitted).

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. Thus, “while the police may briefly detain and interrogate an individual in a public place, they may make an investigatory stop only if it is based upon a reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal activity.” State v. Dobard, 01-2629, p. 3 (La.6/21/02), 824 So.2d 1127, 1129-30. See also La.C.Cr.P. art. 215.1 (a police officer “may stop a person in a public place whom he reasonably suspects is | ^committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”); and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense). A reviewing court must take into account the “totality of the circumstances — the whole picture,” giving deference to the inferences and deductions of a trained officer that might well elude an untrained person. U.S. v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The court must also weigh the circumstances known to the police as understood by those versed in the field of law enforcement. Id.

In support of his argument that the police did not have reasonable suspicion to stop him, the defendant asserts that Detective Elsensohn could not identify him as the person who had sold crack cocaine to the confidential informant during the controlled purchase, thus concluding that he had no basis to believe that he was the subject identified as “Dooley.” Although Detective Elsensohn did not specify how he identified the defendant as “Dooley” when he saw him leave the residence, his testimony reveals that he clearly recognized the defendant as the target of the investigation when he departed. This testimony went unchallenged at the hearing. It is quite clear that Detective Elsen-sohn’s decision to follow and then stop the defendant was appropriately predicated on the belief that the person he observed walking away from the residence was in fact “Dooley,” the subject who had sold crack cocaine to the Cl from that residence a few days before. These facts, alone, 17establish that Detective Elsensohn had a reasonable suspicion to stop the defendant based on his belief that the defendant was a drug dealer. Further, when the detective exited his vehicle and announced himself as a police officer, the defendant ran and was observed consuming what the detective believed to be contraband. Thus, there was a legitimate basis to stop the defendant in an attempt to recover the evidence before it was destroyed. Once the detective recognized the substance as crack cocaine, the defendant was placed under arrest, and the money was recovered pursuant to a search incident to that arrest. Based on these circumstances, we cannot find that the trial court abused its discretion in denying the defendant’s motion to suppress the evidence.

The defendant’s second and third arguments pertain to his statements. With respect to the second argument, the defendant contends that he did not waive his Miranda rights. Pursuant to La. C.Cr.P. art. 703(D), the State had the burden of showing that the defendant’s statements were admissible. In addition, La. R.S. 15:451 provides: “Before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” See State v. Gradley, 97-641, p. 9 (La.5/19/98), 745 So.2d 1160, 1166; State v. Butler, 04-880, p. 4 (La.App. 4 Cir. 1/12/05), 894 So.2d 415, 418. As noted in State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537, in order for a statement made by a suspect in custody to be admissible at |strial, police officers must advise the suspect of his Fifth Amendment rights prior to interrogating him.

The defendant raises two issues: 1) he was incapable of making a knowing and voluntary waiver of rights because of the drugs he consumed prior to his arrest; and 2) there was no express waiver prior to making his two statements.

Regarding the first issue, the defendant maintains that he was unable to make a knowing and voluntary waiver of his Miranda rights because he was under the influence of heroin and cocaine. As noted previously, Detective Elsensohn testified that he overheard the defendant inform the EMT that he had consumed heroin one hour earlier. Furthermore, Detective El-sensohn observed the defendant swallow a significant quantity of crack cocaine. Mr. Wilson initially suggested to Detective El-sensohn that he had swallowed forty grams. Later he stated that it was only one ounce.

Intoxication will render a confession inadmissible when the intoxication is of such a degree as to negate the defendant’s comprehension and render him “unconscious” of the consequences of what he is saying. State v. Decloues, 10-1247, p. 6 (La.App. 4 Cir. 3/23/11), 62 So.3d 778, 781, writ denied, 11-867 (La.2/3/12), 79 So.3d 1022 (citations omitted). Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact and we will not overturn the trial judge’s conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession unless they are not ^supported by the evidence. Decloues, 10-1247, pp. 6-7, 62 So.3d at 781 (citations omitted).

The record does not support the finding that the defendant’s intoxication was of such a degree as to negate his comprehension and to render him unconscious of the consequences of what he was saying. No evidence was introduced to show that the defendant’s speech was slurred or that he was otherwise incoherent, disoriented, or irrational when making his statements. Instead, the undisputed testimony of the officer indicates that the defendant was aware of his surroundings and consistently responded appropriately to the EMT’s and the officer’s questions. Considering the record and circumstances in this case, the defendant’s alleged intoxicated state was not sufficient to vitiate the voluntariness of his statements.

Turning to the issue of waiver, the defendant contends that the State failed to establish an affirmative waiver of his Miranda rights for both of his statements.

The defendant’s first statement was made in the EMS unit to the EMT during the course of his treatment. Detective Elsensohn overheard the statement, thus it was not made during the course of an interrogation by the police and Miranda is not implicated. See State v. Welch, 10-422, 10-423, p. 15 (La.App. 4 Cir. 2/2/11), 59 So.3d 441, 451 (it is well settled that “voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody.”)

Conversely, the defendant’s second statement was made to Detective Elsen-sohn in the hospital during the course of a police interrogation.

In Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2263-64, 176 L.Ed.2d 1098 (2010), the Court stated:

The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions. Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.

Id.

As discussed, Detective Elsensohn testified that he advised the defendant of his Miranda rights while arresting him. He also stated that the defendant wished to answer his questions. He further stated that he did not force, coerce, threaten, or promise the defendant anything for his statement. Accordingly, we find that the record supports the conclusion that defendant’s statements were free and voluntary. Thus, we cannot say that the trial court abused its discretion in denying the defendant’s motion to suppress his statements.

In support of his final argument, the defendant contends that his first statement made to the EMS technician and overheard by Detective Elsensohn is protected under the physician-patient privilege established under La. C.E. art. 510 and therefore inadmissible. However, the record reflects the defendant never raised this issue with the trial court, either at the hearing or in his motion to reconsider. Accordingly, the issue of whether defendant’s statement to the EMT is. privileged under La. C.E. 510 was not preserved for review. State v. Kelly, 08-200, p. 6 (La.App. 4 Cir 6/4/08), 986 So.2d 880, 884 (generally, issues not |nsubmitted to the trial court for decision will not be considered by the appellate court on appeal).

CONCLUSION

Accordingly, we amend the defendant’s multiple offender sentence to delete the restriction against parole eligibility and affirm his convictions and sentences as amended.

AFFIRMED AS AMENDED

      . The defendant originally gave notice of his intent to seek supervisory review, but he withdrew it.

      . The record does not reflect that the trial court formally ruled on the defendant’s motion to reconsider; however, the trial court referenced the denial of the motion during the defendant's May 4, 2012, guilty plea.

      . In turn, the trial court also allowed the State to withdraw its amendment to count one.

      . As the defendant pled guilty under Crosby, the facts of the case were not fully developed on the record. The Boykin transcripts reveal that the defendant pled guilty to attempted possession with the intent to distribute cocaine and obstruction of justice.

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

      . Normally, the issue of the admissibility of evidence is raised by filing a motion in limine. A motion to suppress the statement brought pursuant to La.C.Cr.P. art. 703 only challenges whether the statement was constitutionally obtained.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Keelan K. SNEED.
    No. 2012-KA-0809.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.
    Christopher A. Aberle, Mandeville, LA, for Defendani/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| j Keelan Sneed, who was convicted by a jury of the attempted manslaughter of Marcus Alexander, was sentenced under the provisions of La.C.Cr.P. art. 893.3 to seven years at hard labor without the benefit of parole, probation, or suspension of sentence. Because Mr. Sneed did not assign any error respecting his conviction and because we have detected no errors patent, we affirm his conviction. See La. C.Cr.P. art. 920.

Mr. Sneed does assign as error, however, the trial judge’s sentencing him under the provisions of Article 893.3 because the prosecution filed the notice required under La.C.Cr.P. art. 89B.1 too late and, in the alternative, because the sentence was -without the benefit of parole. We agree with Mr. Sneed that the prosecution’s notice to him under Article 893.1 was too late and that, accordingly, the trial judge was without authority to invoke the sentencing enhancements of Article 893.3. We thus vacate the sentence imposed and remand for re-sentencing of Mr. Sneed under La. R.S. 14:27 D(3) and 31 B.

j2We explain our decision in greater detail below.

I

Article 893.3 provides for escalating sentencing enhancements depending upon the kind of offense committed with a firearm and whether the firearm was actually possessed; actually used; actually discharged; and, if actually used or discharged, caused harm. But “[i]f the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of the trial of the felony or specifically enumerated misdemeanor in which the firearm was used.” La.C.Cr.P. art. 893.1 A (emphasis added). Here, the prosecutor filed the motion immediately before jury voir dire commenced.

A

We have already held that a notice to invoke the firearm sentencing enhancement was untimely when filed “immediately prior to jury selection” as that was not “a reasonable period of time prior to commencement of trial.” State v. Heck, 560 So.2d 611, 618 (La.App. 4th Cir.1990).

In Heck, the defendant’s offense occurred prior to the 1988 amendment that rewrote Article 893.1 to include the notice provision and the requirement that notice be given within a reasonable period of time prior to the commencement of trial. The court determined that the amendment to La.C.Cr.P. art. 893.1 was procedural in nature, and thus applied to the defendant’s trial which occurred three weeks after the amendment took effect.

JaP

The prosecution urges us not to follow our own more recent and controlling precedent in this matter. It points us to our decision in State v. McKnight, 518 So.2d 6 (La.App. 4th Cir.1987). There, a written notice was also filed just prior to the commencement of trial and we held it to be sufficient. Notably, however, at the time of the trial in McKnight, the firearm sentencing enhancement provision was contained only in La.C.Cr.P. art. 893.1, and it did not include any provision that the State must give notice of its intent to invoke the enhanced sentencing provision prior to the commencement of trial.

The prosecution also urges us to adopt the holding in State v. King, 563 So.2d 449, 458 (La.App. 1st Cir.1990). There, the First Circuit reached a different conclusion than we did in Heck, holding that notice filed the day before jury selection began was timely. The court there noted that there had never been any doubt that a gun was used in the commission of the offense. Because the only issue was whether or not the shooting was a murder, manslaughter, or committed in self-defense, the court concluded that there was no need for “a more advanced notice of the State’s intention to seek enhancement under former Article 893.1.” King, 563 So.2d at 458. King relied on State v. Allen, 496 So.2d 301 (La.1986), in which the court held that its prior decision in State v. Jackson, 480 So.2d 263 (La.1985), was only entitled to limited retroactivity because the need for notice was based on due process. In Jackson, the Supreme Court held only that the State must provide a defendant with written notice prior to trial of its intent to seek an enhanced penalty under Article 893.1. But, as we noted, before the 1988 |4amendment, no notice requirement was included in La.C.Cr.P. art. 893.1. In neither Jackson nor Allen did the Supreme Court set out any particular time period in advance of trial that notice must be given, stating only that the notice must be in “advance of trial” and “pre-trial.” Jackson, 480 So.2d at 271.

The legislature in its amendment to Article 893.1, however, did not adopt the Jackson language. The legislature chose to use the language “within a reasonable period of time prior to commencement of trial” rather than simply state that written notice must be filed before trial. It appears that the legislature was concerned that it satisfy any Due Process considerations by inserting the phrase “reasonable period of time prior to commencement” of the trial, rather than the less precise “pretrial” language.

Thus, we conclude that the 1988 amendment rejected the notion that so long as the notice is given pre-trial it would be sufficient in all cases to trigger the enhancing penalties. While what constitutes a reasonable period of time prior to trial may well vary given the circumstances of any specific case, we are satisfied with the bright line rule of Heck that notice filed just prior to jury selection was not filed within “a reasonable period of time” prior to the trial starting.

II

Although it appears that the notice in this case was not timely filed, the prosecution argues that lack of timely notice should not act as a bar per se to the invocation of Article 893.3 because there was no real issue as to the use of a firearm in this case. Again, we find that Heck itself answers this point. There also was no issue regarding the use of a firearm; the victim in Heck was killed by a shotgun blast fired through a door by the defendant. Ms. Heck said that the shooting was an accident, claiming she was seated with the shotgun in her lap with | Bthe intent of scaring the victim, with whom she had argued earlier in the day, when he returned home. Ms. Heck stated that she was unfamiliar with the weapon and that it fired accidentally; she denied knowing that the defendant was outside the front door. She was found guilty as charged of second degree murder, but the trial court reduced the verdict to manslaughter. Interestingly, because she was charged with second degree murder, if the jury verdict had not been disturbed, she would have faced a mandatory sentence of life imprisonment at hard labor without the benefit of parole. The firearm enhancement provisions would have been superfluous; it was only because the conviction was reduced to manslaughter that the provisions of La.C.Cr.P. art. 893.1 were imposed.

Moreover, to accept the prosecution’s argument that there was no real issue involving the discharge of the firearm and the ensuing bodily injury would negate Mr. Sneed’s plea of not guilty. See La.C.Cr.P. art. 804 A(l) (“A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt”).

CONCLUSION

By waiting until the day of the commencement of trial to file its motion under Article 893.1, the prosecution was too late to invoke the sentence-enhancing provisions of Article 893.3.

DECREE

The conviction of Keelan Sneed is affirmed. The sentence of seven years at hard labor without the benefit of parole, probation, or suspension of sentence, which was imposed upon him, is vacated. The matter is remanded to the district court for re-sentencing under the controlling provisions of La. R.S. 14:27 D(3) and 31 B.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

      . Because we grant relief to Mr. Sneed under his first assignment of error, we pretermit consideration of his second assignment.

      . Mr. Sneed filed a written opposition to the motion after the verdict.

      .In the 1988 legislative action, Acts 1988, No. 319, La.C.Cr.P. arts. 893.2 and 893.3 were added to the code; in those provisions the specific enhanced penalties are set out. Previously, the penalties were included in Article 893.1 itself, which did not include any specific notice requirement when originally enacted in 1981.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Dominic C. BUHCANNON.
    No. 2012-KA-1223.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Dominic Buhcannon, challenges only his sentencing as a multiple offender in this appeal. After review of the record in light of the applicable law and arguments of the parties, we amend the defendant’s sentence to delete the prohibition of parole eligibility and, as amended, affirm his sentence. We also grant the appellate counsel’s motion to withdraw.

Relevant Facts and Procedural History

The defendant was convicted for attempted second degree robbery and initially sentenced to six years at hard labor with credit for time served. State v. Buhcannon, 2011-1727, p. 1 (La.App. 4 Cir. 3/13/13), 112 So.3d 312, 314. Pursuant to La.Rev.Stat. 15:529.1, the State charged the defendant as a multiple offender based upon a 2005 felony conviction for solicitation of crime against nature. Counsel for the defendant moved to quash the multiple bill, contending that it violated the defendant’s equal protection rights because, after he pleaded guilty to the violation of La.Rev.Stat. 14:89 (crime against nature by solicitation) in 2005, the legislature amended the statute to provide that á first offense was a misdemeanor rather than the felony to which the defendant had pleaded guilty. Counsel also argued that the multiple bill should be quashed 12because the multiple bill hearing was not timely filed. The motion to quash was denied and the multiple bill hearing was held on May 11, 2012.

At the hearing, the State presented Officer Jay Jaquet, a latent print examiner for the New Orleans Police Department (NOPD) who testified that the defendant’s prints in connection with the arrest register for the 2005 conviction matched the prints taken from the defendant on the morning of the multiple bill hearing. At the conclusion of Officer Jaquet’s testimony, counsel for the defendant re-urged the motion to quash. The trial court, finding no merit in counsel’s argument that the revised statute should be applied retroactively (thereby downgrading the defendant’s 2005 conviction to a misdemeanor and therefore unsuitable as an underlying offense for multiple bill purposes) or that the time limitation for filing a multiple bill had elapsed, again denied the motion to quash. After vacating the defendant’s initial sentence, the trial court sentenced the defendant as a multiple offender to serve ten years at hard labor with credit for time served but without the benefit of probation, parole, or suspension of sentence. In its written reasons, the trial court stated in pertinent part:

Concerning the previous [crime against nature] conviction, which stems from 2005 in Orleans Parish Criminal District Court, Section “L”, this Court believes that arguing these issues at this time is improper in that [the defendant] attempted to re-litigate the prior conviction during the multiple bill hearing. Moreover, [the defendant] has an adequate remedy on appeal in that case. Concerning the time limitation to have a multiple bill hearing, the State of Louisiana timely filed a multiple bill in this matter; nevertheless, the hearing was reset many times due to the State of Louisiana being in jury trials, the defendant not being transported from the Department of Corrections and due to continuances on behalf of defense counsel. As a result, the claim that the hearing was not held in a timely manner without legitimate excuses is without merit.

A notice of appeal was filed on behalf of the defendant and the Louisiana Appellate Project was assigned as the defendant’s counsel on appeal. However, ^appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, stating that after close review of the record, she is unable to find any non-frivolous issues subject to argument and, therefore, requesting that the court conduct an errors patent review and allow her to withdraw from representation of the defendant in this appeal. The defendant subsequently filed a timely pro se brief, asserting four assignments of error: (1) the trial court failed to comply with the sentencing guidelines of La.Code Crim. Proc. Art. 841 and consider mitigating circumstance or state into the record the factors of consideration underlying its imposition of the habitual offender sentence; (2) the trial court erred in imposing a sentence denying applicable parole eligibility benefits; (3) the “trial court failed to carry its burden of proof’ that the defendant was a second offender under La.Rev.Stat. 15:529.1; and (4) the trial court failed to arraign the defendant on the multiple bill or inform him of his rights and the allegations contained in the bill of information.

Discussion

Error Patent Review/Assignment of Error 2

A review of the record reveals one error patent: the trial court erred, as the defendant asserts in his second assignment of error, in denying applicable parole eligibility benefits when sentencing the defendant as a multiple offender. Pursuant to La.Rev.Stat. 15:529.1(G) “[a]ny sentence imposed under the provisions of [the Habitual Offender Law] shall be at hard labor without benefit of probation or suspension of sentence.” Notably, there is no statutory prohibition of parole benefits.

Likewise, La.Rev.Stat. 14:64.4, the statute pertaining to second degree robbery, does not restrict parole eligibility: “[w]ho-ever commits the crime of | ¿second degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years.” La.Rev.Stat. 14:64.4(B). In turn, La.Rev.Stat. 15:574.4 (governing parole eligibility with regard to multiple offenders) provides in pertinent part:

A. (l)(a) Unless eligible at an earlier date and except as provided for in Sub-paragraph (b) of this Paragraph and Subsection B of this Section, a person, otherwise eligible for parole, convicted of a first felony offense shall be eligible for parole consideration upon serving thirty-three and one-third percent of the sentence imposed. Upon conviction of a second felony offense, such person shall be eligible for parole consideration upon serving fifty percent of the sentence imposed. A person convicted of a third or subsequent felony offense shall not be eligible for parole.
(b)(i) Notwithstanding the provisions of Subparagraph (a) of this Paragraph, a person, otherwise eligible for parole, convicted of a first felony offense shall be eligible for parole consideration upon serving twenty-five percent of the sentence imposed. The provisions of this Subparagraph shall not apply to any person who has been convicted of a crime of violence as defined in R.S. 14:2(B), has been convicted of a sex offense as defined in R.S. 15:541, has been sentenced as a habitual offender pursuant to R.S. 15:529.1, or is otherwise ineligible for parole.
(ii) Notwithstanding the provisions of Subparagraph (a) of this Paragraph, a person, otherwise eligible for parole, convicted of a second felony offense shall be eligible for parole consideration upon serving thirty-three and one-third percent of the sentence imposed. The provisions of this Item shall not apply to any person who has been convicted of a crime of violence as defined in R.S. 14:2(B), has been convicted of a sex offense as defined in R.S. 15:541, has been sentenced as a habitual offender pursuant to R.S. 15:529.1, or is otherwise ineligible for parole, (emphasis added).

In sentencing the defendant, however, the trial court stated:

Let the record reflect he’s seated, and his attorney is over to the side. Okay. So you are now going to be sentenced pursuant to Louisiana Revised Statute 15:529.1. So, at this time, the Court’s vacating the sentence of February 4th of 2011, sentencing you pursuant to Louisiana Revised Statute 15:529.1 as a double offender to ten years in the Department of Corrections at hard labor. These ten years are to be served without the benefits of probation, parole, or suspension of sentence. The Court is going to give you full credit for any and all time served, including the deduction of, ah, time actually 1 ¡¡served under the sentence so vacated. And the Court’s going to assess court costs in the amount of $35.00 as required by law.

The defendant, a second offender convicted of a crime of violence, is statutorily eligible for parole after serving fifty percent of the sentence imposed. See La.Rev. Stat. 15:574.4(A). Therefore, it was error for the trial court to sentence him without any parole eligibility and, accordingly, we amend his sentence to delete the prohibition of parole eligibility.

Assignment of Error 1

In his first pro se assignment of error, the defendant asserts that the trial court failed to comply with the sentencing guidelines of La.Code Crim. Proc. art. 894.1 by failing to consider mitigating circumstances or stating for the record all circumstances taken into account and a factual basis for imposing the sentence. However, the defendant is precluded from raising this issue in the present appeal because there is no indication in the record that the requisite written or oral motion to reconsider sentence was filed in connection with his sentence imposed pursuant to La. Rev.Stat. 15:529.1. State v. Donaldson, 2004-0366, p. 6 (La.App. 4 Cir. 7/14/04), 880 So.2d 39, 42.

Assignment of Error 3

In his third pro se assignment of error, the defendant argues that the trial court failed to carry its burden of proof that Defendant was a second offender pursuant to La.Rev.Stat. 15:529.1.

First, the burden of proof that the defendant was a second offender was on the State, not the trial court. As counsel acknowledged in her Anders brief, based on Officer Jaquet’s testimony that the defendant’s fingerprints taken in court that day matched the fingerprints on the bill of information and arrest register for the | f,2005 conviction, the trial court did not err in finding the defendant a second offender for multiple offender sentencing purposes. In addition, the certified packet submitted in connection with the 2005 conviction contains the “waiver of rights” form signed by the defendant when he pleaded guilty, as well as evidence that the trial court advised the defendant of the rights that he waived by pleading guilty to that offense. In addition, the multiple bill hearing transcript reveals that there was no objection by the defense to the State’s proof establishing that he was a second offender and, therefore, this issue was not preserved for appeal. See La. Code Crim. Proc. art. 841 (error cannot be challenged after verdict without contemporaneous objection).

Assignment of Error k

In the defendant’s final pro se assignment of error, he argues that the trial court failed to formally arraign him on the multiple bill because he was not informed of the allegation contained in the bill of information or of his rights. Although the hearing transcript indicates that he was not formally arraigned, there was no objection to the trial court’s failure to formally read the multiple bill at the hearing and, accordingly, this argument has been waived. See La.Code Crim. Proc. art. 555 (“A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”); La.Code Crim. Proc. Art. 841 (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence”).

This assignment of error is without merit.

17Conclusion

As acknowledged in the Anders brief, the defendant has challenged his conviction in a separate appeal and, therefore,. the only issues currently before us are related to the denial of the defendant’s motion to quash the multiple bill, his adjudication as a multiple offender, and his sentence. The defendant’s motion to quash was based on his argument that his right to equal protection was violated because the legislature changed the offense of solicitation of crime against nature from a felony to a misdemeanor for a first offense. As conceded by counsel, however, the Louisiana Supreme Court has repeatedly rejected the argument that a felony which has been reduced to a misdemeanor cannot serve to enhance a sentence. See State v. Sugasti, 2001-3407, pp. 4-5 (La.6/21/02), 820 So.2d 518, 520 (law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer).

In addition, as conceded by counsel, the sentencing range for attempted second degree armed robbery as a second offender is ten to forty years and, as such, the defendant received the statutory minimum. In any event, (as again pointed out by counsel) even if the ten-year sentence were excessive, the issue was not preserved for appeal by objecting or filing a motion to reconsider sentence. See La. Code Crim. Proc. art. 881.1(E)(“Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”). Finally, with regard to the timeliness of the multiple bill hearing, counsel for the defendant acknowledges that the delays were primarily due to the Department of Correction’s ^failure to bring the defendant to court, as well as several continuances requested by the defendant and one joint request (by the State and the defendant) for one continuance. Thus, as counsel submits, the State was not abusive or vindictive in causing the delays with respect to holding the multiple bill hearing.

After an independent thorough review of the record as mandated by State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990) (interpreting Anders), we find only the error discussed above. Therefore, the defendant’s multiple bill sentence is amended to delete the prohibition of parole eligibility and, as amended, affirmed. In addition, the appellate counsel’s motion to withdraw is granted.

SENTENCE AMENDED AND, AS AMENDED, AFFIRMED; MOTION GRANTED.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Michael L. JONES.
    No. 2012-KA-0510.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| Michael Jones was charged by bill of information with one count of aggravated burglary in violation of Louisiana Revised Statute 14:60, one count of possession of a firearm by a convicted felon in violation of Louisiana Revised Statute 14:95.1, and one count of illegal discharge of a weapon in violation of Louisiana Revised Statute 14:94. Following a jury trial, Mr. Jones was found guilty of simple burglary of an inhabited dwelling (a responsive verdict to aggravated burglary) and guilty of possession of a firearm by a convicted felon. He was acquitted on the charge of illegal discharge of a weapon.

On the conviction for simple burglary, the trial court sentenced Mr. Jones to serve twelve years at hard labor. On the conviction for possession of a firearm by a convicted felon, the trial court sentenced Mr. Jones to fifteen years at hard labor and assessed a fine of one thousand dollars. The trial court ordered that the sentences run concurrently. Mr. Jones timely filed this appeal of his convictions and sentences.

FACTS

The victim in this case, Keyondra Bridges, and the defendant, Michael Jones, knew each other. They had, at one point in their relationship, been dating 12partners. At Mr. Jones’ trial, Keyondra testified that she and Mr. Jones had dated back in 2003 and again from July through September of 2009. She denied they were still dating on November 10, 2009, the date of the incident in question. According to her testimony, on that date, Mr. Jones called her from his work at Popeye’s in Slidell and she agreed to go with him to a movie. She drove to Slidell, picked Mr. Jones up from his sister’s house, and they went in her car to see the movie, Paranormal Activity 2. On their way, they stopped at a daiquiri shop where Mr. Jones bought two daiquiris. According to Keyondra, he drank them both before the movie.

After the movie, Keyondra tried to bring Mr. Jones back to his sister’s house in Slidell but he refused to get out of the car. He wanted to go out, so she drove to Bourbon Street to placate him. Shortly after arriving on Bourbon Street, Keyon-dra was ready to leave so she called Mr. Jones’ sister, hoping that his sister would pick him up or would be able to persuade him to go to her house. When that tactic was unsuccessful, Keyondra drove to the Seventh District Police Station in New Orleans Bast hoping to get a police officer to help her get Mr. Jones out of her car. Mr. Jones ultimately got out of the car voluntarily at the police station, and Keyondra drove to her parents’ house.

Soon after she left him, Mr. Jones began calling Keyondra on her cell phone because he wanted her to drive him home. During the phone calls, he threatened to kill her parents, so she left their house and went to her grandmother’s, where she was living at that time, and went to bed.

|.c. Keyondra then heard Mr. Jones knocking on the window and doors of her grandmother’s home, but she did not respond. The front door to the house had a glass outer door and a wooden inner door. Mr. Jones broke the front glass door, but could not get in. He went to the side door and “kicked it in.” He then went to her bedroom, kicked in the bedroom door, and pulled her out of bed. Mr. Jones grabbed her by the neck and dragged her down the hall and out of the house. Keyondra yelled to her grandmother that Mr. Jones was trying to kill her and to call the police.

Keyondra testified that Mr. Jones dragged her into the alleyway and pushed her to the ground. He started punching her in the face, chest and arms. At that point, a friend of Mr. Jones walked up and offered to take him home. Mr. Jones refused, saying that he wanted Keyondra to take him home. The friend then left, and Mr. Jones dragged Keyondra back into her bedroom, telling her to put clothes on. While they were in her bedroom, Mr. Jones noticed Keyondra’s gun on the floor. He saw Keyondra reach for the gun, pushed her out of the way and took the gun. He told Keyondra that if she called the police, he would kill her. Mr. Jones then took Keyondra back outside to her car at gunpoint and ordered her to take him home. As he got in the car, Keyondra was able to get away. As she ran back into the house, she heard gunshots. Key-ondra locked herself in the bathroom with her grandmother and called the police.

According to Keyondra, Mr. Jones was not at the house when the police arrived but returned soon after. She saw the police arrest Mr. Jones and heard him yell, “I’m going to be back” or “It’s not over.”

|4Mr. Jones testified on his own behalf. He acknowledged three prior convictions— possession of cocaine in 1999, possession with the intent to distribute cocaine in 2003, and distribution of cocaine in 2004. He testified that he and the victim began dating in 2003 and were dating at the time of the incident. He corroborated Keyon-dra’s testimony that they went to a movie and then to Bourbon Street. He contends that they began arguing so she put him out of the car at the Seventh District Police Station. Mr. Jones was talking to Officer Gabriel Osborne in the parking lot of the Seventh District when Keyondra pulled away. He testified that he asked Officer Osborne to give him a ride to Sli-dell, but she declined. Mr. Jones continued to try to find a ride to Slidell. He found a friend who could not take him to Slidell, but could take him somewhere in the New Orleans East area. So, he had his friend take him to Keyondra’s grandmother’s house. Mr. Jones then started calling Keyondra from his cell phone and she answered a majority of his calls.

Mr. Jones stated that he knocked on the door of the house, but no one answered. He slammed the front glass door, and it shattered. He then went to the side door, hit it with his left shoulder and it came open. Mr. Jones went to Ms. Bridges’ bedroom and used his shoulder to break it open. He stated that Keyondra willingly went outside with him and agreed to take him home. After going back inside to get her keys, Keyondra returned with a gun but did not point it at him. Mr. Jones stated that while he was trying to disarm her, he accidentally punched her in the face while trying to grab the gun, and she fell to the ground. Mr. Jones stated that he knew Keyondra would call the police, so he walked up the street to wait for the police to arrive. He acknowledged that as a convicted felon, he was | Bnot supposed to be in possession of a weapon. He claimed, however, that he took the gun to disarm her, taking the bullets out of the magazine and putting them in his right pocket while keeping the gun in his left pocket. He denied that he shot the weapon, or that it ever went off during the incident.

When the police arrived, Mr. Jones walked back to the house with his hands up and told the officers that that he had a gun, though he stood watching the police for twenty minutes before approaching the house. He testified that he was trying to explain the situation to the police, but they did not give him a chance to say anything before placing him under arrest.

Keyondra’s grandmother, Ms. Emma Bridges, testified that on the night of the incident she was home in bed watching television. She heard her granddaughter come in and, a short time later, heard a loud noise. She thought her granddaughter had dropped something but then heard her granddaughter yelling, “He’s going to kill me” and telling her to call the police. She opened her bedroom door and saw a man taking her granddaughter down the hall, though she never saw his face. Instead of calling the police, Ms. Bridges called Keyondra’s father and told him what was happening.

After the police arrived, Ms. Bridges saw an individual being arrested and heard him yelling as he was placed in the police car. She stated that the front glass door of her home was broken and that her side door was kicked in.

New Orleans Police Officer Gabriel Osborne was the first office to arrive at the scene that evening. She participated in the investigation and the subsequent arrest of Mr. Jones. She testified she first saw Mr. Jones in the Seventh District [ (¡parking lot earlier that night where Mr. Jones had asked to use her phone to make a call. She did not let him use it, but directed him to another location for a phone. According to her testimony, Mr. Jones never asked for a ride back to Sli-dell.

When she arrived at Ms. Bridges’ house, Officer Gabriel saw the broken front door. Upon further investigation, she observed that the side door to the residence and the door to Keyondra’s bedroom had been kicked in and noted further damage inside the residence. Officer Osborne observed that Keyondra had a laceration under her left eye, abrasions on her elbow, and scratches on her arms. Because Keyondra told the investigating officers that Mr. Jones shot a weapon, the officers searched the outside of the residence and found one spent casing in the driveway.

Approximately thirty minutes after Officer Gabriel and other officers arrived on the scene, Mr. Jones approached Officer Osborne, admitting that he had Keyon-dra’s gun. He approached Officer Osborne saying, “I’ll take my licks. I have her gun in my pocket.” Officer Osborne detained Mr. Jones and found the gun in his pocket with live rounds in it. When Mr. Jones was processed at Central Lockup, a live round was also discovered in another pocket.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to state that Mr. Jones’ sentences were to be served without the benefit of probation, parole or suspension of sentence. Louisiana Revised Statute 14:95.1 requires that the sentence for anyone convicted of being a felon in possession of a firearm must be served without the benefit of probation, parole or suspension of sentence. Louisiana Revised Statute 14:62.2 states that whoever is convicted of simple burglary of an inhabited dwelling “shall be imprisoned at hard labor for not less |7than one year, without benefit of probation, parole or suspension of sentence, nor more than twelve years.” However, Louisiana Revised Statute 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction of the sentence. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799.

ASSIGNMENTS OF ERROR

1. The trial judge erred in failing to instruct the jury on the law of justification (self-defense) with regard to the offense of possession of a firearm by a convicted felon.

2. The jury, inadequately instructed as to the law, returned a verdict that is not supported by the evidence with regard to the offense of possession of a firearm by a convicted felon.

3. Trial counsel was ineffective in failing to submit to the court a special jury charge with regard to self-defense to the charge of possession of a firearm by a convicted felon and in failing to ask for reconsideration of the maximum sentence, thus precluding the issue from review on appeal.

4. The sentence imposed for the conviction of possession of a firearm by a convicted felon is excessive under the circumstances of this case.

DISCUSSION

FAILURE TO INSTRUCT THE JURY

In his first assignment or error, Mr. Jones contends that the trial court erred in failing to instruct the jury on the law of justification (self-defense) with regard to the offense of possession of a firearm by a convicted felon. For the reasons that follow, we find this assignment of error to be without merit.

Louisiana Code of Criminal Procedure article 807 provides that both the State and the defense have the right to submit proposed special jury charges to the court; that the charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent; and that the Ischarge need not be given if it is included in the general charge or in another special charge.

Thus, a trial judge is required to charge the jury, in response to an otherwise proper request, as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence. State v. Marse, 365 So.2d 1319, 1323 (La.1978). In the present case, defense counsel did not seek a special jury charge on the law of justification or object to the exclusion of such a jury charge. Thus, this assignment is not appropriate for review. La.C.Cr.P. articles 801, 841; State v. Allen, 592 So.2d 486 (La.App. 4 Cir.1991).

INSUFFICIENCY OF EVIDENCE

In his second assignment of error, Mr. Jones contends that the evidence was insufficient to prove that he was guilty of possession of a firearm by a convicted felon. He contends that necessitous circumstances existed which required him to take possession of the weapon. Specifically, he claims that he took possession of the gun to prevent Keyondra from using it on him. Thus, he contends, his possession of the weapon was justified.

In reviewing a claim of insufficiency of evidence, courts must apply the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court must determine whether the evidence, viewed in the light most favorable to the prosecution, “was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Batiste, 2006-0875, p. 7 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 814; State v. Sykes, 2004-1199, p. 6 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 161. In addition, when the State uses circumstantial evidence to prove the elements of the offense, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude 19every reasonable hypothesis of innocence.” La. R.S. 15:438; State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657.

Louisiana Revised Statute 14:18 sets forth the general provisions for justification: “The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct.”

In State v. Blache, 480 So.2d 304 (La.1985), the Louisiana Supreme Court recognized that a defense of justification is available to a defendant charged with being a felon in possession of a firearm. The court explained that such a defense is available when the felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, such that he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense, or in defense of others. In such a situation, justification is a defense. Blache, 480 So.2d at 308.

In State v. Cheatwood, 458 So.2d 907 (La.1984), the Supreme Court addressed the issue of the burden of proof when justification is offered as a defense. Does the State have the burden of proving there was no justification or does the defendant have the burden of proving that he was justified in committing the crime with which he is charged?

In Cheatwood, the defendant was convicted of criminal neglect of his family. He and his wife divorced and he was ordered to pay child support. He quickly fell behind in his support payments and was ordered into court pursuant to a civil proceeding to have the amount of past due support determined and made executory. After judgment was rendered against him and he still did not pay in |inaccordance with the judgment, Mr. Cheatwood was charged with criminal neglect of family in accordance with La. R.S. 14:74 and found guilty as charged. At trial and on appeal, Mr. Cheatwood presented evidence that he suffered from a back injury, was disabled and was unable to meet his financial obligation. In discussing this defense, the Supreme Court first noted that except in a few instances, Louisiana statutes do not set forth who has the burden of proof for defenses. The Court differentiated defenses such as intoxication and mistake of fact, which negate an element of the offense, from defenses such as justification, which the court found to be an affirmative defense that does not negate an element of the recognized offense. The Court stated: In this case, “Since justification’ defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence.” Cheatwood, 458 So.2d at 910. In a footnote, the Court further stated:

It is logical to conclude that the Legislature intended to require the state to prove beyond a reasonable doubt only the elements of the offense and to require defendant to prove by preponderance of evidence the exculpatory circumstances constituting the “affirmative” defense. See W. Lafave & A. Scott, Criminal Law § 8 (1972). The statutory provisions setting forth the state’s burden of proof refer only to the requirement that the state prove the elements of the crime-not that the state disprove the exculpatory circumstances constituting defenses which defeat criminal culpability despite proof of the presence of all elements of the offense. See La. R.S. 15:271; La.C.Cr.P. art. 804; former La.C.Cr.P. arts. 263 and 387 (1928).
See also State v. Freeman, 427 So.2d

1161 (La.1983), Lemmon, J., concurring. Id. at 910 n. 4. The Court then found that the defendant had met his burden of proving his affirmative defense by a preponderance of the evidence.

In State v. Wischer, 2004-0325, pp. 8-9 (La.App. 4 Cir. 9/22/04), 885 So.2d 602, 606-607, a divided panel of this court adopted Cheatwood and held that in a non-homicide case, the defendant has the burden of showing by a preponderance of the evidence that the crime was committed in self-defense. One judge concurred, finding that the evidence was sufficient to support the defendant’s conviction, but he disagreed with the majority as to which party has the burden of proof as to a self-defense claim, and he found that the facts of the case did not warrant this Court making this determination. Id., 2004-325, p. 11, 885 So.2d at 608.

After Wischer, this court has on numerous occasions discussed this issue and recognized that it is an unsettled area of law. See, State v. Cooks, 2011-0342, pp. 11-12, (La.App. 4 Cir. 12/14/11), 81 So.3d 932, 939-940. In this case, we find it unnecessary to resolve the issue. The record supports a finding by the jury that the State proved, beyond a reasonable doubt, that Mr. Jones was not justified in his possession of the firearm.

In State v. Grant, 414 So.2d 373 (La.1982), the defendant contended that he took possession of a gun after his aunt had removed it from her purse during some type of disturbance. As the defendant was taking the weapon outside to place it in his truck, a police officer arrived in response to the call of a disturbance at the residence. The officer later testified that there was a great deal of commotion and accusations being thrown back and forth between several people, including the defendant. When the officer asked the defendant if he was armed, the defendant removed the gun from his rear pocket. At trial, the defendant’s aunt testified for the defendant that the gun was hers and that she had been upset at the time of the incident. However, she also testified that, by the time the police arrived, the defendant and another man were moving a piece of furniture out of the residence. l12In upholding the defendant’s conviction for violating Louisiana Revised Statute 14:95.1, the Court noted that the testimony of the defendant’s aunt established that the defendant had ample time to turn the gun over to another person or otherwise remove it from his person. Therefore, he could not rely on a justification defense. Id. at 374.

In State v. Jones, 539 So.2d 866 (La.App. 4 Cir.1989), the defense witnesses claimed that three men attempted to rob the defendant’s fiancée when she was making a call at a pay phone. She was able to retrieve her pistol from her purse and send her child to get the defendant who was nearby. The would-be robbers fled when the defendant’s fiancée held her gun on them and the defendant came to her aid. While the fiancée called the police, her purse and its contents, including the gun, ended up on the ground, at which time the defendant began picking everything up. The defendant had the gun in his hand when he flagged down the police, who arrested him. The police officers testified that they went to the location of the defendant’s arrest in response to a call that a man was waving a gun around. According to the police, when they arrived the defendant had the gun concealed in a holster in his belt. On appeal, this Court concluded that, even accepting the defendant’s version of the facts, he was not in imminent danger when he possessed the firearm, and thus he was not entitled to a jury instruction on self-defense. Jones, 539 So.2d at 868.

In State v. Jackson, 452 So.2d 776, 779 (La.App. 4 Cir.1984), this Court recognized that “Necessity’, when raised as a defense to the illegal possession of a firearm, entails proof that the threat of force by another is imminent and apparent, and that the person threatened has no reasonable alternative but to possess the firearm.” (Emphasis in the original).

113In the present case, while the testimony of Mr. Jones and victim differed as to how he obtained possession of the weapon, all the testimony supports the finding that Mr. Jones maintained possession of the weapon after the victim ran back into the house. At that point, even accepting Mr. Jones’ testimony, he was no longer faced with an imminent and apparent threat which necessitated his possession of the weapon. Officer Osborne testified that Mr. Jones did not approach her until she had been on the scene for thirty minutes. Thus, when Mr. Jones was found to be in possession of the weapon, there was no reasonable justification for his possession of the weapon. Mr. Jones could have disposed of the weapon at any time. The evidence presented does not support a finding of justification or self-defense as argued by Mr. Jones. This assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In this third assignment of error, Mr. Jones asserts a claim for ineffective assistance of counsel on two grounds: (1) failure to request a special jury charge on self-defense and (2) failure to file a motion to reconsider sentence. A review of the trial record reveals that defense counsel did file a motion to reconsider sentence, which was denied by the trial court. Therefore, we will only address the claim that defense counsel was ineffective for failing to request a special jury charge on self-defense.

A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001); State v. Seiss, 428 So.2d 444, 449 (La.1983). A claim of ineffectiveness of counsel is analyzed under the twojprongedu test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In State v. Miller, 2000-0218, pp. 6-7 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 110-111, this Court discussed the Strickland two-part test relating to an ineffective assistance of counsel claim stating that the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. Miller, 2000-0218, p. 7, 792 So.2d at 111; State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

If an error falls within the ambit of trial strategy, it does not establish ineffective assistance of counsel. State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986); State v. Marino, 2000-1131, p. 12 (La.App. 4 Cir. 6/27/01), 804 So.2d 47, 56. An attorney’s level of representation may not be determined by whether a particular strategy is successful. Marino, 804 So.2d at 56, citing State v. Brooks, 505 So.2d 714, 724 (La.1987).

11fiUnder Louisiana Code of Criminal Procedure article 802, a trial court shall charge the jury:

(1) As to the law applicable to the case;
(2)That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
(3) That the jury alone shall determine the weight and credibility of the evidence.

As stated earlier in this opinion, pursuant to Louisiana Code of Criminal Procedure article 807, the State and the defense shall have the right to submit to the court requests for special written charges for the jury. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Marse, 365 So.2d 1319, 1324 (La.1978); State v. Tate, 2001-1658, p. 20 (La.5/20/03), 851 So.2d 921, 937; see also La.C.Cr.P. art. 921.

The Supreme Court, in State v. Miller, 338 So.2d 678, 681 (La.1976), stated that an instruction on justification must be given whenever the defense is arguably supported by the evidence presented at trial, because “the question is not what the judge believed the evidence proved, or even what view this Court has of the evidence. The question is, instead, what the jury would believe the evidence established if they had been instructed on the law of justification.”

As discussed in the previous assignment of error, there was no evidence to support Mr. Jones’ argument of justification or self-defense. Even accepting the testimony favorable to Mr. Jones, there was no evidence to suggest that Mr. Jones |1fiwas in any imminent harm or danger when Officer Osborne found him in possession of the weapon. More than thirty minutes had elapsed from the time the police arrived at the residence in response to the 911 call to the time that Mr. Jones returned to the scene. As such, the evidence did not support the giving of a jury instruction on the issue of justification or self-defense in response to the charge of being a felon in possession of a weapon. Trial counsel was not ineffective for failing to request such a jury charge.

This assignment of error is without merit.

EXCESSIVENESS OF SENTENCE

Finally, Mr. Jones argues that his sentence for possession of a firearm by a convicted felon was excessive under the circumstances of his case. At time of the offense, the sentencing range provided in Louisiana Revised Statute 14:95.1 was ten to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence and a fine of one thousand dollars to five thousand dollars. The trial court sentenced Mr. Jones to the maximum sentence of incarceration available under the statute of fifteen years at hard labor and the minimum fine of one thousand dollars.

Louisiana Constitution article I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Burton, 98-0096, pp. 6-7 (La.App. 4 Cir. 9/1/99), 746 So.2d 74, 79 (Citation | 17omitted). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982, p. 9, 656 So.2d at 979; State v. Hills, 98-0507, pp. 4-5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.

Louisiana Code of Criminal Procedure article 881.4(D) provides that if the record supports the sentence imposed, the appellate court shall not set aside a sentence for excessiveness. In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in Louisiana Code of Criminal Procedure article 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; State v. Soco, 441 So.2d 719, 720 (La.1983). If adequate compliance with Louisiana Code of Criminal Procedure ar-tide 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. See also: State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

In State v. Soraparu, 97-1027, p. 1 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated that the relevant question in an appellate review of sentence is “‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In the present case, the trial court did not specifically state her reasons for the sentences imposed. However, the record supports the conclusion that the trial court considered the factors of article 894.1 in determining the sentences to be imposed. The trial court heard all the evidence adduced at trial, during which Mr. Jones admitted to having prior convictions for possession of cocaine, possession with the intent to distribute cocaine and distribution of cocaine. In fact, the offenses in the present case occurred only a few months after he was released from jail for his conviction for distribution of cocaine. The trial court was aware of the manner in which Mr. Jones took the weapon from the victim and the injuries he inflicted upon her. The trial court also heard evidence of how Mr. Jones attempted to maintain correspondence with the victim even though the victim did not encourage it. Additionally, the trial judge noted that Mr. Jones threatened the victim after his conviction and that she personally heard Mr. Jones curse and threaten the victim in court.

In light of Mr. Jones’ prior convictions, the timing of these offenses following his release from jail, the violent nature of these convictions, and his behavior toward the victim at trial, the trial court did not abuse its wide discretion in sentencing Mr. Jones to fifteen years at hard labor on the charge of being a felon in possession of a weapon. This assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm Mr. Jones’ convictions and sentences.

AFFIRMED

      . The victim is referred to by her first name as her grandmother, Mrs. Emma Bridges, was also a witness in these proceedings.

      . Keyondra testified that Mr. Jones did not have a cell phone.

      . Stephanie Briscoe is a senior police dispatcher with the New Orleans Police Department. She identified the 911 audio tape and transcript of the call received from Keyondra on November 11, 2009. The 911 tape was played for the jury.

      . Ms. Bridges was unable to identify Mr. Jones at trial.

      . Article 807 further states that "[a] requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”