text:
    STATE of Louisiana v. Nolan DAVIS.
    No. 12-KA-453.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Nolan Davis, Sr., Kinder, LA, Pro Se, Defendant/Appellant.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2The sole issue raised in this appeal is whether the trial court erred in denying the defendant’s motion to quash the bill of information. For the reasons that follow, we find no error in the trial court’s ruling and accordingly affirm the defendant’s convictions and sentences.

STATEMENT OF THE CASE

In order to address the defendant’s allegation that the time limitation for the commencement of trial expired, it is necessary to recite the lengthy procedural history of this case.

The defendant was arrested on May 15, 2007, and on May 16, 2007, he signed an appearance bond, in which he agreed to appear for a hearing on June 29, 2007. In the bond, the defendant listed a Piety Street address. On June 13, 2007, the Jefferson Parish District Attorney filed a bill of information charging the defendant with monetary instrument abuse, in violation of LSA-R.S. 14:72.2 |s(count one), and possession of MDMA, in violation of LSA-R.S. 40:966 C (count two).

On June 29, 2007, the defendant failed to appear in court. At the request of the State, the trial court ordered that the defendant’s bond be forfeited and that an attachment be issued for the defendant. On July 22, 2008, in response to a writ of habeas corpus filed by the State, the trial judge issued an order to the Jefferson Parish Correctional Center to transport the defendant from the LaSalle Parish Correctional Center to court for a hearing on August 8, 2008.

On August 1, 2008, the defendant was arraigned, a new hearing date of September 8, 2008, was given for motions, and the defendant was remanded to the Jefferson Parish Prison. The attachment of June 29, 2007, was recalled, and counsel was appointed for the defendant. The defendant filed omnibus motions on August 5, 2008. In response to the State’s writ of habeas corpus, the trial judge issued an order on August 19, 2008, to the LaSalle Correctional Center and the Jefferson Parish Correctional Center to transport the defendant from the LaSalle Correctional Center to court for a hearing on September 8, 2008. However, the record shows that on August 25, 2008, the defendant was released from the Jefferson Parish Correctional Center due to prison overcrowding. On the date of his release, he signed an appearance bond, in which he agreed to appear in court on September 8, 2008. In the bond, the defendant listed a Sebring, Florida address. Also, on the date of his release, August 25, 2008, the defendant sent the court a letter, marked as filed August 28, 2008, informing it that he was currently housed at the Jefferson Parish Correctional Center and that he wished to resolve the charges against him. The matter was set for hearing on October 14, 2008.

On September 8, 2008, the defendant did not appear for the motion hearing, and the court continued it to October 14, 2008. The September 8, 2008 minute Rentry also reflected that the defendant was incarcerated in the LaSalle Correctional Center.

In response to the State’s writ of habeas corpus, the court, on September 11, 2008, issued an order to the Jefferson Parish Correctional Center and the LaSalle Correctional Center to produce the defendant in court on October 14, 2008. On October 14, 2008, the defendant did not appear for the motion hearing, and the trial judge ordered that an attachment be issued for the defendant at the request of the State. In response to another writ of habeas corpus filed by the State, the trial judge issued an order on October 22, 2008, to the Jefferson Parish Correctional Center and to the LaSalle Correctional Center to produce the defendant in court on December 1, 2008.

On October 27, 2008, the defendant was arrested, and on October 28, 2008, he was released from the Jefferson Parish Correctional Center without bond and given a November 11, 2008 court date. At that time, the defendant gave a Piety Street address. A minute entry from November 5, 2008, reflected that the arrest warrant issued on October 14, 2008, was satisfied because the defendant had been “arrested on Attachment.” On December 1, 2008, the defendant did not appear in court for the motion hearing, and the trial judge ordered that an attachment be issued for the defendant at the request of the State. Thereafter, the defendant filed a pro se writ of habeas corpus stating that he was being illegally held in Orleans Parish Prison for a violation of LSA-R.S. 14:60 (aggravated burglary), and asking to be brought to court on February 6, 2009. That writ was signed on December 5, 2008.

|fiOn December 16, 2008, in response to the State’s writ of habeas corpus, the trial judge ordered the Jefferson Parish Correctional Center and the LaSalle Correctional Center to produce the defendant in court for a hearing on February 6, 2009. On February 6, 2009, the defendant did not appear for the hearing, and the court continued it to April 8, 2009, at the request of defense counsel. The minute entry further reflected that the defendant was incarcerated in the LaSalle Correctional Center. On February 11, 2009, in response to the State’s writ of habeas corpus, the trial judge ordered the Jefferson Parish Correctional Center and the La-Salle Correctional Center to produce the defendant in court on April 8, 2009. Thereafter, on March 24, 2009, the defendant filed a writ of habeas corpus stating that he was in Orleans Parish Prison and asking to be brought to court; however, the pleading was marked “no service.”

On April 2, 2009, in response to the State’s writ of habeas corpus filed on April 1, 2009, the trial judge ordered the Orleans Parish Prison and the Jefferson Parish Correctional Center to produce the defendant in court on April 3, 2009. The defendant did not appear for the motion hearing on April 3, 2009, and the trial judge ordered that an attachment be issued for the defendant at the request of the State. On April 21, 2009, in response to the State’s writ, the trial judge ordered the Orleans Parish Prison and the Jefferson Parish Correctional Center to produce the defendant in court on June 5, 2009.

On June 5, 2009, the defendant appeared in court, and written and oral notice was given to him for a June 15, 2009 trial date. On June 10, 2009, in response to the State’s writ of habeas corpus filed on June 9, 2009, the trial judge ordered the Orleans Parish Prison and the Jefferson Parish Correctional Center to produce the defendant in court on June 15, 2009. The defendant did not appear for trial on June 15, 2009. The trial was continued at the request of the defense [(¡attorney and was reset for June 18, 2009. The reason for the continuance was “need writ.” On June 16, 2009, in response to the State’s writ, the trial judge ordered the Orleans Parish Prison and the Jefferson Parish Correctional Center to produce the defendant in court on June 18, 2009; however, the writ was marked “moot,” noting that the defendant had been in the Jefferson Parish Correctional Center as of June 15, 2009, at 2:00 p.m.

On June 18, 2009, the defendant did not appear for trial as he was in an unknown facility at that time. The trial was continued at the request of the defense attorney and was reset for August 3, 2009. The reason for the continuance was “need writ.” At some point in time, the defendant filed a pro se motion for dismissal of the prosecution or motion to quash. On June 19, 2009, the defendant’s motion to quash was denied. The defendant was given oral notice of the August 3, 2009 trial date, and he was remanded to the Orleans Parish Prison. On June 29, 2009, in response to the State’s writ of habeas corpus, the trial judge ordered the Orleans Parish Prison and the Jefferson Parish Correctional Center to produce the defendant in court on August 3, 2009. The defendant did not appear for trial on August 3, 2009, and the court issued an attachment for the defendant’s arrest.

On March 30, 2012, in response to the State’s writ, the trial judge ordered the Dabadie Correctional Center and the Jefferson Parish Correctional Center to produce the defendant in court on April 20, 2012. On April 20, 2012, the defendant appeared for a status hearing. At the request of the defense counsel, the hearing was continued to April 30, 2012, and oral notice was given to the defendant. The minute entry further reflected that the defendant was in Dabadie Correctional Center, and the attachment issued on August 3, 2009, was recalled.

On April 25, 2012, in response to the State’s writ, the trial judge ordered the Dabadie Correctional Center and the Jefferson Parish Correctional Center to 17produce the defendant in court on April 30, 2012. Thereafter, on April 27, 2012, the defendant filed a motion to quash the bill of information alleging that the time limitation for the commencement of trial had expired. On April 30, 2012, the trial judge heard and denied the defendant’s counseled motion to quash.

Following that denial, the defendant withdrew his not guilty pleas and pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s ruling on his motion to quash. The trial court then sentenced the defendant to six years imprisonment at hard labor on count one and to five years imprisonment at hard labor on count two, to run concurrently.

The State subsequently filed a bill of information alleging that the defendant was a second felony offender. After the defendant admitted the allegations of the multiple bill, the trial judge vacated the original sentence on count one and re-sentenced him pursuant to the provisions of LSA-R.S. 15:529.1 to imprisonment at hard labor for six years without benefit of probation or suspension of sentence, to run concurrently with the sentence imposed on count two. The defendant now appeals.

LAW AND ANALYSIS

On appeal, the defendant, in his pro se brief, and appointed counsel, in his appellate brief, argue that the trial court erred in denying the motion to quash. The defendant contends that the time limitation for commencement of trial expired under LSA-C.Cr.P. arts. 532(7) and 578(A)(2); therefore, the trial court should have granted his motion to quash. In response, the State contends that although the defendant was not brought to trial within two years, the time period to try him was both interrupted and suspended; therefore, at the time the defendant pled guilty, it was still within the prescriptive period to bring him to trial.

| ^Pursuant to LSA-C.Cr.P. art. 578(A)(2), the State must commence trial within two years from the date of institution of the prosecution in non-capital felony cases. The date of institution of prosecution is the date when the bill of information is filed. State v. Watts, 99-57 (La.App. 5 Cir. 5/19/99), 738 So.2d 628, 629. Upon expiration of this time limitation, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct. LSA-C.Cr.P. art. 581. A motion to quash is the proper procedural vehicle for claiming an untimely commencement of trial. LSA-C.Cr.P. art. 582(7); State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286.

When a defendant has filed an apparently meritorious motion to quash based on prescription, the State bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Smith, 07-959 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 835. The Louisiana Supreme Court has held that “[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.” State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1206.

LSA-C.Cr.P. art. 579 provides for the interruption of time limitations as follows:

A.The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
|9(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B.The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

To satisfy its burden in establishing that an interruption of the prescriptive period has occurred, the State is required to exercise due diligence in discovering the whereabouts of the defendant as well as in taking the appropriate steps to secure his presence for trial once it has found him. State v. Smith, 982 So.2d at 835-836.

LSA-C.Cr.P. art. 580 provides that the time limitation is suspended when a defendant files a motion to quash or other preliminary plea. A preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 827. The period is suspended until the ruling of the court, but in no case shall the State have less than one year after the ruling to commence trial. State v. Jones, 620 So.2d 341, 342 (La.App. 5 Cir.1993).

In this case, the State instituted prosecution on June 13, 2007, by the filing of a bill of information. Under LSA-C.Cr.P. art. 578(A)(2), trial should have begun on or before June 13, 2009. The State clearly did not commence trial during this time frame. However, we find that the State met its burden of proving that this two-year period for bringing the defendant to trial was suspended and/or | ^interrupted, and therefore, there was no basis for granting the defendant’s motion to quash.

On August 5, 2008, prior to the expiration of the two-year prescriptive period, the defendant filed “Omnibus Motions and Order for Pre-Trial Motions.” Those omnibus motions included a motion to suppress the statements, a request for discovery and bill of particulars, a motion to suppress the evidence, and a motion to suppress the identification. Pursuant to LSA-C.Cr.P. art. 580, the running of the periods of limitation established by LSA-C.Cr.P. art. 578 shall be suspended until the ruling of the court thereon. On April 30, 2012, the defendant pled guilty as charged. At the time of the defendant’s plea, the trial court had not ruled on these motions. Therefore, the time limitations established by LSA-C.Cr.P. art. 578 were suspended from August 5, 2008, until April 30, 2012, when the defendant pled guilty.

In addition to proving that the time limitation was suspended, the State also proved that it was interrupted pursuant to the provisions of LSA-C.Cr.P. art. 579(A)(2) and (3) providing that the defendant’s presence could “not be obtained by legal process, or for any other cause beyond the control of the state” and that the defendant failed to appear in court on numerous occasions pursuant to actual notice, proof of which appeared in the record. In this case, there were at least two occasions where the defendant signed appearance bonds and then failed to appear for court. On May 16, 2007, the defendant signed an appearance bond, in which he agreed to appear for the June 29, 2007 hearing; however, he failed to appear. The defendant signed another appearance bond on August 25, 2008, agreeing to appear in court on September 8, 2008. Once again, he failed to appear.

Additionally, the record reflects that the State used due diligence in attempting to discover the whereabouts of the defendant as well as in taking |n the appropriate steps to secure his presence for trial once it found him. The State filed numerous writs of habeas corpus ad prosequendum in order to obtain the defendant’s presence in court. In response to the State’s writs, the trial judge ordered different correctional centers and prisons to produce the defendant for various court appearances. Despite a writ being filed, the defendant failed to appear in court on October 14, 2008. Although the defendant did not appear in court on December 1, 2008, and February 6, 2009, it appears that the writs to produce the defendant on those dates may have been directed to an institution in which the defendant was not incarcerated. Nevertheless, despite another writ being filed directed to the allegedly correct institution (Orleans Parish Prison), the defendant failed to appear in court again on April 3, 2009.

In response to another writ, the defendant finally appeared in court on June 5, 2009, which was still within the two-year time period, and was given written and oral notice for a June 15, 2009 trial date. Additionally, in response to another writ, the trial judge ordered Orleans Parish Prison to produce the defendant in court on June 15, 2009. However, he did not appear for trial on June 15, 2009. The defendant also failed to appear for trial on August 3, 2009, despite being given oral notice and another writ being filed.

Given the defendant’s failures to appear and the State’s consistent attempts to bring the defendant to court, we find that the State met its burden of proving that the time limitations of LSA-C.Cr.P. Article 578 were interrupted pursuant to the provisions of LSA-C.Cr.P. art. 579(A)(2) and (3). Although the record does not reflect that the State attempted to locate the defendant between August 3, 2009, and April 20, 2012, the Louisiana Supreme Court has found that LSA-C.Cr.P. art. 579(A)(3) does not impose on the State the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice. State v. Romar, 07-2140 (La.7/1/08), 985 So.2d 722, 727. See also State v. Baptiste, 08-2468 (La.6/23/10), 38 So.3d 247.

Having found that the State met its heavy burden of proving that an interruption and/or a suspension occurred, we find no abuse of discretion in the trial court’s denial of the defendant’s motion to quash. Accordingly, the arguments raised by the defendant in this assigned error are without merit.

ERROR PATENT REVIEW

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920. Our review reveals that although the commitment reflects that the defendant was properly advised of the prescriptive period for filing an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8, the transcript reflects an incomplete advisal. The transcript reflects that at the time of the original and enhanced sentencing, the trial judge advised the defendant he had “two years from the date the sentence becomes final to file post conviction relief applications.” However, the commitment shows that the trial judge advised defendant he had “two years after judgment of conviction and sentence has become final to seek post-conviction relief.”

This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. This Court now routinely corrects this error patent by way of its opinion. As such, we advise the defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. State v. Cox, 11-892 (La.App. 5 Cir. 4/10/12), 93 So.3d 632, 637.

113For the reasons set forth herein, we find no error in the trial court’s denial of the defendant’s motion to quash, and accordingly, we affirm the defendant’s convictions and sentences.

AFFIRMED

      . In his pro se writ, the defendant requested his release from the "Jefferson Parish Correction Office." However, it appears that he was actually in the Orleans Parish Prison. In the writ, the defendant stated that he was in the custody of Criminal Sheriff Marlin Gusman and gave an address of 3000 Perdido Street, which is the address of Central Lockup in Orleans Parish.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ernest SAM.
    No. 12-KA-459.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Nisha Sandhu, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

12Pefendant, Ernest Sam, has appealed the sentence imposed as a result of his adjudication as a second felony offender. For the reasons that follow, defendant’s sentence is affirmed.

PROCEDURAL HISTORY

Defendant was convicted of armed robbery with a firearm and was sentenced to 40 years imprisonment. In State v. Sam, 11-469 (La.App. 5 Cir. 2/14/12), 88 So.3d 580, this Court, affirmed defendant’s conviction. After his conviction, defendant was adjudicated a second felony offender and was sentenced to 55 years imprisonment. He then filed a motion to reconsider sentence, which was granted by the trial court. The trial court then resentenced him to 50 years imprisonment. In State v. Sam, 11-470 (La.App. 5 Cir. 2/14/12), 88 So.3d 587, this Court found that the trial court erred in failing to impose a separate, consecutive, five-year firearm enhancement sentence, pursuant to LSA-R.S. 1.44:64.3. The multiple offender sentence was thus vacated as being illegally lenient, and the matter was remanded for resen-tencing. On remand, defendant was sentenced to 54½ years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The sentence consisted of 49½ years as a second felony offender for armed robbery and a consecutive five-year sentence pursuant to LSA-R.S. 14:64.3. This timely appeal followed.

ASSIGNMENT OF ERROR — excessive sentence

In his only assignment of error, defendant argues that his sentence is excessive in light of the trial court’s failure to order a presentence investigation and its failure to consider defendant’s personal history and prior record. In support of this argument, defendant alleges that his role in the crime and his culpability were minimal, that he has an eleventh grade education, and that he has only one prior non-violent felony conviction.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. 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. State v. Lobato, 603 So.2d 739, 751 (La.1992).

In reviewing the issue of excessive sentence on appeal, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Soraparu, [497— 1027 (La.10/13/97), 703 So.2d 608 (per curiam ) (internal quotations in original, citations omitted). To find a sentence excessive, this Court must determine that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals, and therefore, is nothing more than the needless imposition of pain and suffering. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158, 1167 (citation omitted).

Defendant argues that the trial court failed to take into account the specific mitigating factors that he did not “bring the firearm,” did not order the victim to surrender her car keys or lie in the grass, and did not drive off in the victim’s vehicle; rather, he was only observed riding in the vehicle. Defendant also points out that his prior felony conviction was for a non-violent offense.

At the time of the offense, LSA-R.S. 15:529.1(A)(l)(a) provided:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

LSA-R.S. 14:64(B), at the time of the offense, provided: “Whoever commits the crime of armed robbery shall be imprisoned for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Accordingly, since the offense of armed robbery is punishable by imprisonment for a term less than natural life, LSA-R.S. 15:529.1(A)(l)(a) dictates a sentencing range of 49½ years to 198 years for a second felony offender. [.¡Defendant received the minimum sentence of 49⅜ years as a second felony offender.

Further, at the time of the offense, LSA-R.S. 14:64.3(A) provided:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

Since defendant was convicted of armed robbery with a firearm, he was required to receive an additional five-year consecutive sentence, which he did. Clearly, defendant’s sentence of 54⅜ years is within statutory limits. Compliance with sentencing guidelines pursuant to La.C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Howard, 10-541 (La.App. 5 Cir. 4/26/11), 64 So.3d 377, 385, writ denied, 11-1073 (La.12/2/11), 76 So.3d 1173.

In the instant case, defendant’s sentence of 49⅛ years is the mandatory minimum for a second felony offender with an underlying armed robbery conviction. Likewise, the five-year enhancement under LSA-R.S. 14:64.3 is also mandatory. Hence, the trial judge was not required to comply with La.C.Cr.P. art. 894.1 and/or consider mitigating circumstances in sentencing defendant.

As noted above, although a sentence is within statutory limits, it can be reviewed for constitutional exeessiveness. State v. Smith, supra. It is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Taylor, 06-839 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 28, writ denied, 06-0859 (La.6/15/07), 958 So.2d 1179. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual | (¡circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” Id. Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in rare situations. Id. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Id.

Defendant complains that the trial court did not order a presentencing report prior to imposing sentence. Defendant does not explain what factors could or would have been discovered in such a report to prove he was entitled to a downward departure from the mandatory minimum sentence. Defendant does point out that he was a teenager at the time this crime was committed. However, a defendant’s age is insufficient justification for a downward departure. State v. Lee, 09-37 (La.App. 5 Cir. 05/12/09), 15 So.3d 229. Defendant further argues that his prior conviction was for a non-violent offense. While a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, this cannot serve as the only reason, or even the major reason, for declaring such a sentence excessive. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672.

Defendant’s statement to the police, which he sought to have suppressed, indicates that he was the one who pointed the gun at the 'victim. State v. Sam, 11-469 (La.App. 5 Cir. 2/14/12), 88 So.3d 580, 584. Further, the Louisiana Supreme Court recognized that the crime of armed robbery “is a pernicious offense” which “creates a great risk of emotional and physical harm to the victim, to witnesses, and, at times, even to the offender.” State ex rel. Sullivan v. Maggio, 432 So.2d 854, 856 (La.1983). Moreover, our jurisprudence has recognized that sentences |7ranging from 25 to 50 years imprisonment at hard labor are not excessive for the offense of armed robbery, even when imposed on first offenders. State v. Celestine, 12-0241 (La.7/2/12), 92 So.3d 335, 336.

Based on our review of the record, and taking into consideration defendant’s participation in this crime, as well as the violent nature of the crime, defendant’s criminal history, and the jurisprudential expression that a sentence ranging from 25 to 50 years for the crime of armed robbery is not excessive, we find that defendant has failed to rebut the presumption that the mandatory minimum sentence imposed is not constitutionally excessive. He has not shown that his case is exceptional, warranting a downward departure from the mandatory minimum sentence. Consequently, the trial judge did not abuse her discretion in sentencing defendant to 49½ years as a second felony offender, nor in imposing the consecutive 5-year sentence pursuant to LSA-R.S. 14:64.3.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether the defendant makes such a request. Our review of the record before us indicates there were no errors patent requiring correction.

CONCLUSION

For the foregoing reasons, defendant’s sentence is affirmed.

AFFIRMED

      . The Louisiana Supreme Court has held a defendant should be sentenced pursuant to the version of LSA-R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 03-0924 (La.4/14/04), 871 So.2d 317, 326.

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


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Cody SMOOT.
    No. 12-KA-464.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

LCody Smoot appeals his conviction on July 14, 2011, for possession with the intent to distribute cocaine in violation of La. R.S. 40:967(A). Pursuant to a warrant, officers searched Mr. Smoot’s home and discovered crack cocaine. Mr. Smoot argues that the warrant upon which this search was based is invalid because it was vague and overbroad, failing to describe the places to be searched or the items to be searched for with particularity. Mr. Smoot argues that because this warrant was invalid, the trial court erred by not suppressing the evidence found through this search.

FACTS AND PROCEDURAL HISTORY

Officers investigating a homicide obtained a warrant to search 1516 Lloyd Price Avenue in Kenner, Louisiana. That search warrant permitted officers to search for: “any and all firearms and ammunition of any type[;] any and all biological evidence including, but not limited to blood, tissue, and/or bloody clothing[;] any and all of evidence of any other criminal activity.” On April 12, 2011, officers executed this warrant. Officers entered and searched Mr. Smoot’s | -¡home and then his bedroom. During the search of his bedroom, Detective Rhonda Goff saw a camouflage jacket hanging on the back of the door. Detective Goff searched that jacket by reaching into one of its pockets. Inside, she discovered four rocks of crack cocaine. Officers took Mr. Smoot into custody, where he later admitted that the crack cocaine was his and that he had intended to sell it.

At a pre-trial suppression hearing, Detective Goff testified that when she reached into the jacket’s pocket that she was searching for, “guns, bullets, shell casings, [and] biological.” She further testified that bullets can be stored in a jacket.

DISCUSSION

On appeal, Mr. Smoot argues that the search warrant used to justify this search was invalid because the phrase which allowed the officers to search for “any and all of evidence of any other criminal activity” did not particularly describe the places to be searched or the items being searched for. The law is clear that a warrant must particularly describe what officers may search for and the places where the officers may search. U.S. Const. Amend. IV; La. Const, art. I, § 5; La.C.Cr.P. art. 162(C). In her brief, counsel for Mr. Smoot argues that this phrase places no restraints on the search. We agree. The phrase allowing officers to search for “any and all of evidence of any other criminal activity” fails to particularly describe what officers were to search for and is therefore invalid.

This error is, however, without consequence. When a warrant, such as this one, is defective in part, this Court determines whether the warrant is valid when read without the defective part. See State v. Grant, 10-83 (La.App. 5 Cir. 10/26/10), 52 So.3d 149, 152. Read without its defective phrase, this warrant still validly allows the officers to search for ammunition. This search was within the scope of the warrant because officers could reasonably expect to find ammunition |4within the jacket’s pocket. Further, Detective Goff had the right to seize the crack cocaine that she pulled from the pocket because she immediately perceived its incriminating nature. See State v. Evans, 98-992 (La.App. 4 Cir. 6/24/98); 715 So.2d 695, 697-98. Therefore, this search and seizure was valid because it was within the scope of the warrant as read without its defective phrase.

Additionally, pursuant to La.C.Cr.P. art. 920, this Court has conducted a review of this matter for errors patent. This Court finds that there are no errors patent which require corrective action.

CONCLUSION

Therefore, this Court finds the appellant’s assignment to be without merit and rules that the judgment of the trial court is affirmed.

AFFIRMED


author: CARAWAY, J.

text:
    Larry ENGLISH, Plaintiff-Appellant v. Cynthia Diane Thomas ENGLISH, Defendant-Appellee.
    No. 47,331-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2012.
    Rehearing Denied Jan. 10, 2013.

      Larry English, In Proper Person.
    S. Lynn Walker, for Appellee.
    Before BROWN, CARAWAY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

11 Following the trial court’s decision not to hold the record open for an expert accounting report, the trial court denied the plaintiff’s claim of lesion to revoke the prior partition of community property. Without the expert report, plaintiff did not establish a value for his law firm at the time of the 2005 partition. Plaintiff brings this appeal and challenges the trial court’s decision not to hold the record open. For the following reasons, we affirm the trial court’s ruling.

Facts and Procedural History

Larry and Cynthia English were married on December 31, 1979. During their marriage, they had two children. Larry filed for an Article 103(1) divorce on August 31, 2005. On- October 6, 2005, the parties received a judgment of divorce. In this judgment, the parties stated that Cynthia waived all claims to spousal support. Additionally, Larry bound himself to pay the mortgage on Cynthia’s home, maintain a $500,000 life insurance policy with Cynthia as the beneficiary, and pay the college tuition and expenses for one of their children. The balance due on the house note was over $200,000.

At the time of the divorce, Larry and Cynthia executed and filed a voluntary partition of the community of acquets and gains. In the partition, Larry received the following:

1) all checking, savings, bonds, stocks, etc. in his name or under his control
2) any art, books, and music collectibles accumulated during the marriage
3) 2000 GMC Yukon Denali
4) any and all right, title and interest in and to English & Lester, A Professional Law Corporation
5) any and all right, title and interest in and to English & Associates, L.L.C.

|2In the partition, Cynthia received the following property:

1) all movables except for Larry’s art, books, and music
2) all checking, savings, bonds, and other accounts in her name or under her control
3) any and all advantages of her employment, including retirement benefits, 401K plans, etc.
4) 2004 Isuzu Rodeo
5) the former community residence located at 5708 Sweetwater Drive, Shreveport, LA that was previously declared to be her separate property.

The parties waived all reimbursement claims against each other. Larry also agreed to release Cynthia’s liabilities pertaining to the former community property items. Furthermore, Larry agreed to assume full liability and responsibility for:

1) any and all community debt and his separate debt
2) the remaining mortgage on their former community home
3) all amounts due on his 2000 Denali
4) all debts, obligations, loans, etc. owed by English and Lester, English & Associates, and/or English & Associates, L.L.C.
5) any outstanding balances owed on the parties 2004 Federal and State Income Tax Collection
6) any outstanding balance owed to any and all community debts, including but not limited to credit cards in both or either one’s name, having a total approximate outstanding balance of $40,000, payable in the monthly amount of $800 to Cynthia on or before the 15th day of each month.

In addition to Cynthia’s numerous motions for contempt that followed for Larry’s failure to pay obligations arising from the divorce and partition, the pertinent procedural history after the October 6, 2005 judgment of divorce and partition was set forth in the trial court’s written reasons for judgment as follows:

On October 30, 2009, Mr. English filed a Petition to Rescind Consent Judgments and Terminate Spousal Support and seeking other relief. Among the relief requested was rescission of the partition agreement based on lesion. Ms. English filed various exceptions in response. The exceptions were sustained on December 14, 2009 by judgment dated January 28, 2010. Mr. English was allowed until March 2010 to amend to address the deficiencies. He missed this deadline. In [3an attempt to address the deficiencies identified in the exceptions, Mr. English eventually filed a pleading styled “Petition to Rescind Consent Judgments for Lesion” on April 7, 2010, to which Ms. English again responded with further exceptions. The hearing on the exceptions was held on June 24, 2010. Ms. English wanted the suit dismissed with prejudice for failure to meet the March 29, 2010 deadline. This Court determined that a dismissal with prejudice was not permitted by existing jurisprudence. In an effort to prevent further delay, the court suggested and the parties agreed to allow Mr. English to orally amend the caption of the petition such that everyone understood that he was seeking to rescind the voluntary community property partition on grounds of lesion. Ms. English promptly filed her answer on that date, propounded discovery, and the parties agreed on that date that the matter would be tried on September 13, 2010 without any further delays or continuances. Against this backdrop of inart-fully drawn pleadings and delays, the trial began on September 13, 2010.

Three days before the trial, Larry wrote a letter to the trial court and opposing counsel requesting that the record be held open at the end of trial. In the letter, Larry explained that the reconstruction of financial records between English and Lester and Larry English Professional Law Corporation is both tedious and time consuming, and that Larry’s expert, Austin Robertson, CPA, needed until at least October 15, 2010, to complete the evaluation on his law firm.

On September 18, 2010, Larry represented himself at trial. Regarding Larry’s motion to hold the record open, Cynthia’s counsel objected and stated that she had spoken with Robertson, the expert. According to her conversation, Robertson stated that he had not been paid nor had he received all of the law firm’s tax records from the past five years in order to do a successful audit. Larry replied that Robertson had been paid; however, he indicated that all of his tax documents had not been finalized for 2003. In response, the trial court reiterated the 11-month delays before trial which were caused by Larry. Furthermore, the trial court noted that the expert’s name was only recently | ¿revealed after all the discovery delays had lapsed. From the jurisprudential guidance, the trial court stated that a decision on whether to leave a record open should be based on factors such as diligence, good faith, and reasonable grounds. The court then ruled:

Mr. English initially brought this action almost one year ago, and he should have marshaled the evidence he wished to present long before this trial setting. Mr. English failed to exercise appropriate diligence in preparing the case for trial, and his request to leave the record open is not based on reasonable grounds.

Larry called three trial witnesses, Cynthia, Tomika Carroll (hereinafter “Carroll”), and himself. Larry questioned Cynthia on the value that she placed on certain assets, like her AT & T retirement plan, the movables she acquired in the house, the albums he received, and even his law firm. During her testimony, Larry stipulated to the values that Cynthia provided regarding the furnishings in her home, both of their cars, and the art and books that he received. Additionally, Larry stipulated that the house was her separate property. Cynthia testified that she valued his law firm at $494,000 because this was the total income of Larry’s law firm shown on the federal tax return.

Carroll, Larry’s secretary and office manager since 2000, testified next. Carroll verified the filing of the state and federal tax returns filed in the name of the law firm from 2000-2005, except for the firm’s 2003 federal tax return. Apparently, the 2003 firm’s federal tax return was the same document that Robertson requested in order to complete his evaluation. The 2005 federal return listed total income at $494,000.04. Carroll spent a lot of time explaining the post-2005 financial situation and hardships of the firm.

When Larry testified, he attempted to explain why he was no longer able to pay Cynthia’s expenses. Larry testified that the economy affected his law | ¡¡practice so badly that he was forced to move to New York in search of opportunities. Larry testified that his law firm did not have a value in 2005 or was only valued at $10,000. He simply testified that almost all of his firm’s value stemmed from goodwill.

After reviewing the post-trial briefs, the court filed its Reasons for Judgment on September 28, 2010. The trial court found that “the relief requested by Mr. English is not warranted under the law because Mr. English has completely failed to satisfy the burden of proof required in a lesion case.” In the court’s reasons for judgment, the trial court gave a detailed account of each item addressed in the October 2005 partition and the evidence, or lack thereof, submitted by Larry as to its value. Regarding the two assets of significance awarded to Cynthia, the court found that the parties’ home was Cynthia’s separate property and the value of Cynthia’s retirement account was never proven at trial. Specifically, the court stated that:

At trial, Mr. English attempted to place values on various items but all of his valuations were speculative at best and not based on any credible evidence. It is important to note that because Mr. English brought the suit, the burden of proof was placed upon him.

After concluding that Larry did not establish the net value of the total community property on October 6, 2005, the court denied his action to rescind the consent judgment on the basis of lesion. The trial court’s judgment was signed and filed on May 26, 2011.

Discussion

In his only assignment of error, Larry argues that the trial court erred in denying his motion to hold the record open in order to receive his expert’s report. Since his law practice was the only significant asset that he received in [fithe divorce, Larry argues that obtaining its proper valuation is an essential aspect of proving lesion. He argues that the only way to uncover the true value of his law firm is through the use of an expert, like Robertson.

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner and to control the proceedings at the trial, so that justice is done. La. C.C.P. art. 1681(A). The decision to hold open or reopen a case for production of additional evidence rests within the discretion of the trial judge, which decision will not be disturbed on appeal unless manifestly erroneous. Clayton v. Bear’s Towing and Recovery, 38,834 (La.App.2d Cir.8/18/04), 880 So.2d 943; Harris v. West Carroll Parish School Board, 605 So.2d 610 (La.App. 2d Cir.1992), writ denied, 609 So.2d 255 (La.1992).

A motion to hold a case open for submission of additional evidence is in the nature of a request for a continuance. Mendoza v. Mendoza, 11-113 (La.App. 5th Cir.12/13/11), 82 So.3d 411; Juneau v. Richard, 96-215 (La.App. 3d Cir.11/13/96), 682 So.2d 1010, writ denied, 96-2988 (La.1/31/97), 687 So.2d 413. Likewise, the trial court’s discretion in granting or denying a continuance under La. C.C.P. art. 1601 must be based upon consideration of the facts of each case and factors such as diligence, good faith, and reasonable grounds. Connor v. Scroggs, 35,521 (La.App.2d Cir.6/12/02), 821 So.2d 542; Our Lady of the Lake Hosp. v. Vanner, 95-0754 (La.App. 1st Cir.3/27/97), 692 So.2d 40, writ denied, 97-1567 (La.9/26/97), 701 So.2d 992; Walker v. Aulds, 28,968 (La.App.2d Cir.12/11/96), 685 So.2d 421. Equally important is the exceptor’s corollary right to have his case heard as soon as practicable. Our Lady of the Lake Hosp., supra; Stett v. Greve, 35,140 (La.App.2d Cir.2/27/02), 810 So.2d 1203. The trial judge may also weigh the condition of the court docket, fairness to both parties and other litigants before the court, and the need for orderly and prompt administration of justice. Connor v. Scroggs, supra; Keyes v. Johnson, 542 So.2d 209 (La.App. 3d Cir.1989), writ denied, 546 So.2d 1215 (La.1989).

In this case, Larry sought to rescind the extrajudicial consent decree on the basis of lesion. La. C.C. art. 814. The proper method of establishing lesion beyond one-fourth is twofold: (1) the community property’s true value (net value) must be ascertained; and (2) it must then be determined from the property acquired whether a party received value less than 8/4 of 1/2 share of the true value of the property partitioned. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1285; Taylor v. Taylor, 38,959 (La.App.2d Cir.11/1/00), 772 So.2d 891, 894; Cowling v. Cowling, 486 So.2d 1060 (La.App. 2d Cir.1986); La. C.C. art. 2590; La. C.C. art. 814 comment (b). The burden is on the party claiming lesion to prove the value of the property in the state it existed at the time of the contract. The party claiming lesion must establish it by clear and convincing proof, and speculative values will not be considered. Cowling v. Cowling, supra at 1062; Beatty v. Vining, 147 So.2d 37 (La.App. 2d Cir.1962); Ozane v. Ozane, 392 So.2d 774, 777 (La.App. 3d Cir.1980).

When we consider Larry’s motion for the continuance to hold open the record, it was within the trial court’s discretion at the beginning of the trial, and certainly at its end, to deny the requested relief. Larry’s pattern for delay of the proceedings predominates throughout the record. Prior to the June 24, 2010 hearing, he had been granted a continuance. By the time of trial in 2010, |sLarry’s tax records of 2005 and earlier were solely within his control along with his knowledge of the 2005 billing records and accounts receivable for his law firm. His failure to prepare an accounting expert before the trial was inexcusable. Moreover, at the conclusion of trial, the trial court correctly ruled that Larry had failed to meet his threshold burden of proof for the net value of all the other community property assets which were partitioned. Therefore, regardless of a more accurate value that might have been established for the law firm by any subsequent expert review, the comparison of values necessary to determine Larry’s lesion claim could not be made from the other evidence he presented at trial. Accordingly, the rulings of the trial court are affirmed.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of these proceedings are assessed to Larry English.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.

Rehearing denied.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Frank Allen FREGIA, Jr.
    No. 12-646.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2012.

      John F. DeRosier, District Attorney, Carla S. Sigler, Asst. District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Appellant, Frank Allen Fregia, Jr.

      Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

li FACTS AND PROCEDURAL HISTORY

Frank Allen Fregia, Jr. (Defendant), was indicted on two counts of molestation of a juvenile, violations of La.R.S. 14:81.2(A). On May 11, 2011, one of the counts of molestation was amended to the lesser offense of indecent behavior with a juvenile, a violation of La.R.S. 14:81. Also on May 11, 2011, Defendant pled guilty to one count of indecent behavior with a juvenile, entering his plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). After the trial court advised Defendant of the Boy-kin rights that he was giving up by pleading guilty, and extensively discussed with Defendant the reasoning behind his “best interest” plea, the trial court found Defendant made a knowing and intelligent decision in his best interest and accepted the guilty plea. In return for agreeing to plead guilty, the State dismissed the remaining molestation charge against Defendant and agreed to not file a habitual offender bill. The trial court ordered a presentence investigation report.

On October 14, 2011, Defendant was sentenced to twenty-five years imprisonment, the maximum sentence. On October 28, 2011, a pro se “Motion to Reconsider Sentence” was filed. On December 6, 2011, defense counsel filed a “Motion to Reconsider Sentence.” A hearing was scheduled for January 6, 2012, following which the trial court held the December motion was untimely filed, and denied the October pro se motion.

Defendant has perfected a timely appeal, alleging two assignments of error: 1) the trial court failed to determine whether a significant factual basis existed for a “best interest” plea in view of Defendant’s claim of innocence, and 2) the sentence of twenty-five years imprisonment was excessive under the circumstances of the case. Defendant does not contest the validity of the guilty plea. He does not ask to |2set aside the plea agreement. He states only that the “case must be remanded for further proceedings to determine whether such [a] significant factual basis exists for acceptance of the plea.”

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent. After reviewing the record, we find there is one error patent.

Louisiana Revised Statutes 14:81(H)(2) requires at least two years of a sentence for indecent behavior with a juvenile be imposed without the benefit of parole, probation, or suspension of sentence. The trial judge failed to impose any portion of the sentence without benefits; thus, Defendant’s sentence is illegally lenient. State v. Sanmiguel, 626 So.2d 957 (La.App. 3 Cir.1993), State v. Jones, 02-1176 (La.App. 3 Cir. 2/5/03), 839 So.2d 439, unit denied, 03-886 (La.11/7/03), 857 So.2d 516. As this error is not raised on appeal, it is not properly before this court and will not be considered.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the trial court failed to put into the record a significant factual basis to support his guilty plea as required by Alford, 400 U.S. 25, 91 S.Ct. 160. Defendant was originally charged with two counts of molestation of a juvenile. In exchange for his guilty plea, one charge was reduced to indecent behavior with a juvenile, and the second charge was dismissed by the State. Defendant clearly stated that, under the circumstances, it was in his best interest to plead guilty, regardless of whether he maintained his innocence.

In State v. J.S., 10-1233, p. 2 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185, 1187-88, this court explained the function and parameter of the “best interest” plea as follows:

The “best interest” or Alford plea, which derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant pled guilty while maintaining his innocence. In Alford, the Supreme Court ruled that a defendant may plead guilty, without forgoing his protestations of innocence, if “the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.” Id,., 400 U.S. at 31, 91 S.Ct. at 164; State v. McCoil, 2005-658 (La.App. 5th Cir.02/27/06), 924 So.2d 1120. In a case involving an Alford plea, the record must contain “strong evidence of actual guilt.” Id., 400 U.S. at 38, 91 S.Ct. at 167; State v. McCoil, supra;

State v. Stevenson, 45,371, pp. 4-5 (La.App. 2 Cir. 6/23/10), 41 So.3d 1273, 1277.

Furthermore, when a defendant claims innocence and still makes an Alford plea, the trial court is put on notice that a substantial basis of guilt must be placed into the record. State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745.

[T]he standard under Alford is not whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea “represents a voluntary and intelligent choice among the alternative[s].” Id. 400 U.S. at 31, 91 S.Ct. at 164.

State v. Orman, 97-2089, pp. 1-2 (La.1/9/98), 704 So.2d 245, 245.

At the guilty plea hearing, the trial court asked for a factual basis. The State offered the following as the factual basis for the plea:

If called to trial, Your Honor, the State would prove that on or about February 1, 2010 to May 20, 2010, the defendant did commit the crime of indecent behavior in that he, being over 17 years of age, did 14 commit a lewd or lascivious act upon the person or in the presence of B.H., date of birth 2/10/2005, a child under the age of 17, where there is an age difference of greater than two years between the two persons.

The following conversation then took place between the trial court and Defendant:

THE COURT: All right. And I know this is an Alford plea; is that right?
MR. FREGIA: Yes.
THE COURT: Now, I know Mr. Ned explained that to you, but I’m going to explain it to you and make sure the record is clear as to what you’re doing. Your original charge was — what was the original charge?
MR. GILLORY: Molestation of a juvenile, Your Honor.
THE COURT: Two counts of molestation of a juvenile which is what you were being charged with. It was amended to one count of indecent behavior with a juvenile. That was a substantial benefit for you.
Now, under the United States Supreme Court case of Alford v. North Carolina [North Carolina v. Alford] you have a right to — rather than risk a more severe — being convicted of a more severe charge or a more severe punishment by going to trial, you have a right to plead guilty to a lesser offense even if you still maintain that you didn’t commit the crime in order to minimize your potential for incarceration. The bottom line is because you think it’s in your best interest to do so you’re allowed to plead guilty without having to admit your guilt, which is different than a no contest plea where you say, well, I’m not going to contest those facts. This is basically where you’re saying you believe that — you don’t admit to those facts, but you believe it’s in your best interest to enter a guilty plea to this charge rather than go to trial because you believe that there’s a chance if you go to trial you could get convicted of these charges and do much, much more prison time, and possibly for the rest of your life go to prison is that correct?
MR. FREGIA: Yes sir.
THE COURT: And so rather than take the chance and go to trial and risk potentially going to prison for life you have opted to enter this guilty plea to the reduced charge of indecent behavior with a juvenile, one count, with a penalty range of 2 to 25 years because you believe it’s in your best interest; is that correct?
1SMR. FREGIA: Yes sir, Your Honor. THE COURT: All right. With that I will — so formally to the charge how do you plead? Under Alford v. North Carolina [North Carolina v. Alford] you want to enter a plea of?
MR. FREGIA: A guilty plea on Alford — under Alford.
THE COURT: So that’s another part of this deal, too, is if you had gone to trial and been convicted not only would you face more severe penalties associated with those other charges if you were convicted, but you’d also face an habitual offender bill which would greatly increase your penalty beyond what it already would be under those more severe charges and possibly be subjected to life in prison. So that’s another factor that you took into consideration in deciding to enter this plea; is that right, Mr. Fregia?
MR. FREGIA: Yes sir.
THE COURT: All right. With that I do find that there is a sufficient factual basis to support the plea under Alford v. North Carolina [North Carolina v. Alford] and a sufficient basis for the defendant to enter the plea as an Alford plea. So I will accept the plea. I do find that it is freely and voluntarily given and order it to be entered of record.

Ordinarily, in the case of an Alford plea, when a defendant alleges that the record fails to contain a sufficient factual basis for his plea, the defendant has either filed a motion to set aside the guilty plea because it was not intelligently or knowingly made, or the defendant raises the constitutionality of the plea on appeal for the same reason. In such cases, if this court finds merit in the defendant’s assertions, the remedy, depending on the circumstances of the case, is to either remand for a hearing to allow the State the opportunity to present a sufficient factual basis or to vacate the guilty plea, conviction, and sentence and remand the matter.

In State v. Guilbeau, 11-99 (La.App. 8 Cir. 6/22/11), 71 So.3d 1020, the defendant was charged with second degree battery. At the plea hearing, the trial court questioned the defendant concerning the facts of the case. The defendant agreed that he hit someone but asserted he was struck first. This court determined that statement was sufficient to raise the defense of justification and thereby “put the trial court on notice that a more detailed factual basis was needed to support the plea.” Id. at 1029. This court conditionally affirmed the defendant’s conviction and sentence on the evidence in the record on appeal and remanded the matter to the trial court to conduct an additional Boykin hearing to allow the state the opportunity to present a sufficient factual basis for the offense of second degree battery. This court further instructed the trial court to vacate the plea and sentence if the state failed to offer a sufficient factual basis for the offense.

In State v. Farris, 10-644 (La.App. 8 Cir. 12/8/10), 53 So.3d 537, the defendant was charged with forcible rape but entered an Alford plea to the reduced charge of second degree sexual battery. However, while the factual basis presented by the state supported the offense of forcible rape, the facts did not establish serious bodily injury, an essential element of second degree sexual battery. This court vacated the defendant’s guilty plea, conviction, and sentence and remanded the matter. This court noted:

While we agree that [the defendant] is entitled to the relief requested, we find that the remand should not have the effect of limiting the state to pursuing only the amended charge. That is to say, when a defendant’s plea to a lesser offense is set aside at his request, the state may pursue further prosecution on the greater offense.

Id. at 540.

As noted above, Defendant makes no statement that his guilty plea was not intelligently or knowingly made nor does he state that he desires to withdraw the guilty plea. Also, as noted above, the standard under Alford is whether the strength |7of the factual basis, coupled with the other circumstances of the plea, reflects that the plea was a voluntary and intelligent choice among the alternatives available to Defendant. The State argues that “the definition of indecent behavior with a juvenile is ‘fairly straightforward’ ” and that there “was tremendous evidence of guilt in the record,” referring to the two minor victims’ statements made to the police which were attached to a discovery response in the record. The State argues “[t]hus, the defendant was put on notice of the charges and the precise allegations raised against him prior to pleading guilty.”

The trial court did not request, nor was it provided with, any specific factual information regarding the offense of indecent behavior with a juvenile. The only information regarding the offense put into the record was essentially a recitation of the statute under which Defendant was charged. An indictment is not evidence of a defendant’s guilt. It is, instead, a means to inform the defendant of the charges against him so that he may prepare for his defense. State v. Galindo, 06-1090 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, writ denied, 07-2145 (La.3/24/08), 977 So.2d 952. The State further argues Defendant was put on notice of the charges and precise allegations when he acknowledged receipt of discovery. The acknowledgement occurred on November 19, 2010, at a pretrial hearing concerning several motions filed by Defendant, wherein the State advised the trial court it had complied with Defendant’s discovery request, and Defendant agreed he had received the documents.

Except for the victims’ unverified statements attached to a discovery response, the record contains nothing pertaining to the facts of the case which would serve as substantial evidence of Defendant’s guilt. See State v. Graig, 10-854 (La.App. 5 Cir. 5/24/11), 66 So.3d 60, in which the fifth circuit noted the trial court failed to recite specific evidence of defendant’s guilt following an Alford plea |8but stated only that a factual basis existed. However, a suppression hearing transcript which was in the record revealed a sufficient factual basis for the Alford plea. At the suppression hearing, a witness testified he saw the defendant shoot the victim and then run away.

Following the rationale in our decision in Guilbeau, we remand this matter for a hearing to allow the State the opportunity to present a factual basis for the plea. In State v. Bowie, 96-2987 (La.1/31/97), 687 So.2d 369, the state supreme court implicitly approved this procedure as it granted writs to provide guidance regarding the new Boykin hearing but declined to exercise its supervisory authority further.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant asserts the maximum sentence of twenty-five years imprisonment is excessive under the circumstances of his case. Defendant pled guilty to one count of indecent behavior with a juvenile under the age of thirteen years. The punishment for this offense is not less than two years and no more than twenty-five years. La.R.S. 14:81(H)(2). Defendant received the maximum sentence. In State v. Semien, 06-841, pp. 11-12 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, 1197, writ denied, 07-448 (La.10/12/07), 965 So.2d 397 (quoting State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955), this court stated:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. |9The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In his pro-se motion to reconsider the sentence filed in October 2011, Defendant requested only that the sentence be reduced to eight years with three years suspended so that he may resume paying child support for his children. In the motion to reconsider the sentence filed in December 2011, defense counsel asserted the maximum sentence was excessive considering that Defendant had no other offenses that were sexual in nature and that by pleading guilty, he accepted responsibility and expressed remorse for his actions.

At the hearing on the motion for reconsideration held in January 2012, the State argued that defense counsel’s December motion for reconsideration was untimely filed. Louisiana Code Criminal Procedure Article 881.1(A) provides that a motion to reconsider must be filed within thirty days following imposition of sentence. Defense counsel, however, explained that rather than adopt the pro-se motion, he filed his own motion. The trial court agreed that defense counsel’s motion was untimely filed.

The trial court indicated that if Defendant had filed a timely pro se motion, he would consider the timely filed motion. The trial court then stated at the time of sentencing he had considered everything and, unless there was something new, he was going to deny the pro se motion. Defendant gave no ground for reconsideration of his sentence in his pro se motion. Failure “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.” La.Code Crim.P. art. 881.1(E). However, in the interest of | justice, this court will address this assignment of error limited to a bare bone review for exces-siveness. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

At the sentencing hearing, the trial court noted it had received the presen-tence investigation report. The trial court heard statements from Defendant’s family and from the •victims’ mother, and heard arguments from Defendant and the State. The trial court noted the trauma suffered by the victims who were four and five years old at the time of the offenses. Furthermore, the trial court noted Defendant was living with the victims’ mother and was in the position of caretaker at the time of the offenses. It further noted for the record that Defendant had a long history of criminal activity starting when he was a juvenile, mostly misdemeanors, and had two felony convictions for burglary. The trial court further noted Defendant was originally arrested on suspicion of two counts of aggravated rape which involved sentences of life imprisonment and two counts of sexual battery. The allegations were eventually reduced to two counts of molestation of a juvenile which could have resulted in at least fifty years imprisonment on each count considering Defendant was a multiple offender. Defendant was then allowed to plead guilty to one reduced count of indecent behavior with a juvenile and the remaining count of molestation was dismissed. As part of his plea agreement, the State agreed not to file a habitual offender bill against Defendant. The trial court noted that Defendant received a considerable benefit vis-a-vis the plea agreement. In State v. Williams, 02-707, p. 8 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1101, this court held that “[t]he trial court may also consider other factors not provided by La.Code Crim.P. art. 894.1[,]” including “the benefit obtained by the defendant through the plea bargain.”

| ^Defendant cited four examples of lesser sentences for the same or similar crimes. In each of those cases, the facts distinguish each case from the current one. In State v. Rideaux, 05—446 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, the defendant, a first time felony offender, was charged with and convicted of two counts of molestation of a juvenile and sentenced to eight years imprisonment on each count. The victims were two teenage girls who testified that the defendant rubbed their buttocks and breast. In State v. Robinson, 43,063 (La.App. 2 Cir. 2/13/08), 975 So.2d 853, the defendant was convicted of indecent behavior with a juvenile and received a suspended five year sentence. The offense was a single act of grabbing the fourteen year old victim by the buttock. The defendant admitted the act, but stated he thought the girl was an adult woman. In State v. Taylor, 95-179 (La.App. 3 Cir. 10/4/95), 663 So.2d 336, the defendant was convicted of sexual battery and attempted indecent behavior and sentenced to eight years and three years respectively, to be served consecutively. The sexual activity was a single occurrence. Defendant bathed with the eleven year old victim and performed oral sex on him. Defendant had a prior indecent behavior with a juvenile conviction. Finally, in an unpublished opinion, State v. T.V., 08-344, 2008 WL 4415699 (La.App. 3 Cir. 10/1/08), the defendant, convicted of indecent behavior of a juvenile, oral sexual battery, and attempted forcible rape, received sentences of five years, eight years, and ten years respectively. The sentences were ordered to be served concurrently, with the eight year sentence to be served without the benefit of parole, probation, or suspension of sentence. The defendant was a first time felony offender.

In the present case, testimony at the sentencing hearing indicates Defendant sexually abused a four year old boy and five year old girl for several months. The presentence investigative report shows Defendant is a multiple offender who 112greatly benefited from his plea agreement. While the maximum sentence of twenty-five years imprisonment is severe, considering the facts of the case, revealed at the sentencing hearing, we cannot say the trial court abused its considerable discretion when imposing the sentence.

DECREE

This case is hereby remanded to the district court and the district court is ordered to conduct an additional Boykin hearing allowing the State an opportunity to present other evidence of Defendant’s guilt at said hearing to be held within thirty days of the date of this opinion. The trial court is further ordered to prepare and lodge with this Court an appellate record containing the transcript of the above-referenced evidentiary hearing within ten days of the hearing. Once this record is lodged with this Court, the State and Defendant will be given the opportunity to file briefs should either party wish to raise any issues arising from the hearing. Defendant may appeal from any adverse ruling on the issue of whether the factual basis is sufficient to support the plea. In the absence of such an appeal, this court will affirm the conviction.

REMANDED WITH INSTRUCTIONS.


author: EZELL, Judge.

text:
    In re Petition of K.A.T. and D.M.G., etc. K.A.T., et al. v. R.B.F., et al.
    Nos. JAC 12-767, CA 12-768.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2012.
    Rehearing Denied Jan. 23, 2013.

      Randy Paul Angelle, Christi M. Roy Hemphill, Boyer, Hebert, Abels & Angelle, Breaux Bridge, LA, Charles G. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Appellants, K.A.T., D.M.G.
    Diane Sorola, Lafayette, LA, for Appel-lees, R.B.F., C.N.F.
    Bradley Richard, Lafayette, LA, for Ap-pellee, Dept, of Children & Family Services.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hThe biological mother and father in this intrafamily adoption proceeding filed a petition to annul the adoption. They now appeal a trial court judgment which sustained the adoptive parents’ exception of prescription and ruled that the law of the case doctrine applied.

FACTS

B.M.G. was born to K.A.T. and D.M.G. on October 30, 2007. On May 22, 2008, the biological parents filed a joint petition for voluntary transfer of custody of the child from the father to the mother. The next day a petition for intrafamily adoption was filed by the maternal grandmother and her husband, C.N.F. and R.B.F. Both the biological mother and father signed authentic acts of consent to the adoption before a notary and two witnesses.

On March 11, 2009, a judgment of adoption in favor of C.N.F. and R.B.F. was signed. An amended judgment of adoption was signed on March 31, 2009, in order to correct the spelling of the child’s name.

On May 13, 2010, in a separate proceeding, the biological mother and father filed a petition to annul the intrafamily adoption alleging fraud and duress. This proceeding was consolidated with the custody and adoption proceeding. The trial court then ordered that the parties appear in court to determine whether any legal error existed which would nullify the final decree of adoption. On June 2, 2010, the trial court found that there was no legal error which would nullify the adoption. The trial court then determined that a hearing was necessary to determine whether there was fraud or duress.

The adoptive parents filed several exceptions alleging no cause of action and vagueness. The biological |2parents responded with amending petitions. The biological parents also filed a motion to re-cuse the presiding judge alleging that he would be called as a witness at the hearing on the annulment. After a hearing, the judge was recused.

On November 11, 2010, the biological parents filed an ex parte motion to rescind the adoption judgment and the amended adoption judgment. For the first time they alleged that the statutory requirements of La.Ch.Code art. 1243 had not been met. Specifically, they alleged that prior to filing the petition for adoption, the adoptive parents had not had physical custody of the minor child for at least six months as required by La.Ch.Code art. 1243(A)(3). The biological parents allege that the trial court lacked subject matter jurisdiction due to the absence of this statutory requirement and that therefore, the adoption judgments were null and void.

The adoptive parents filed an exception of res judicata due to the June 2, 2010 ruling of the trial court that there was no authority “for the court to grant an annulment of the judgment based upon the occurrence of the commission of a legal error.” A hearing on the exception of res judicata was held on February 27, 2012. At that time the adoptive parents withdrew the exception of res judicata since the June 2, 2010 ruling was an interlocutory judgment and not a final judgment. However, they orally raised issues of law of the case and prescription.

The trial court granted the exception of prescription in addition to finding that the law of the case doctrine applied. A judgment was signed on April 4, 2012. It is from this judgment that the biological parents appeal.

PRESCRIPTION

The biological parents argue that the trial court erred in granting the adoptive parents’ exception of prescription for two reasons. First, they argue that La.Code Civ.P. art. 2002 and not La.Code Civ.P. art. 2004 applies. Specifically, they argue Isthat the trial court lacked the power and authority, i.e. subject matter jurisdiction, to grant the adoption because the statutory requirements of La.Ch.Code art. 1243 had not been met. Specifically, they argue that the adoptive parents did not have custody of the minor child for six months prior to filing the petition for adoption. La.Ch.Code art. 1243(A)(3). The biological parents argue that this created an absolutely null judgment which could be annulled at any time.

Secondly, the biological parents claim that La.Ch.Code art. 1263(B) and not La. Code Civ.P. art. 2004 is applicable to their claims of fraud and duress. We will discuss each of these arguments separately.

Application ofLa.Code Civ.P. art.2002

Louisiana Code of Civil Procedure Article 2002(A)(3) provides that a final judgment rendered by a court which lacked subject matter jurisdiction over the suit shall be annulled. Furthermore, the action to annul such a judgment can be brought at any time. La.Code. Civ.P. art. 2002(B).

“Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La.Code Civ.P. art. 2.

Whether the child had been living with the adoptive parents for six months at the time of the filing of the petition for adoption has nothing to do with whether the district court had subject matter jurisdiction to hear an adoption case. Rather, it is a premature action.

The objection of prematurity raises the issue of whether the judicial right of action has yet to come into existence because some prerequisite condition has not been fulfilled, and prematurity is determined by the facts existing at the time suit is |4filed. Rivera v. Bolden’s Transp. Serv., Inc., 11-1669 (La.App. 1 Cir. 6/28/12), 97 So.3d 1096. The right to file for intrafamily adoption by a grandparent and stepgrandparent does not accrue until they have had custody for six months. La.Ch.Code art. 1243(A)(3). Since the adoptive parents filed the petition less than six months after having custody, their action was premature because it was brought before the right to enforce the claim had accrued. La.Code Civ.P. art. 423. Therefore, an exception of prematurity rather than a petition for annulment of judgment based on La.Code Civ.P. art. 2002 for lack of subject matter jurisdiction was the proper procedural device to use.

An objection to the prematurity of an action is raised by a dilatory exception. La.Code Civ.P. art. 926(A)(1). The right to file the exception of prematurity is waived if not pleaded prior to an answer or along with the filing of any pleading seeking relief other than the entry or removal of an attorney, an extension of time, security for costs or dissolution of an attachment issued on the ground of nonresidence of a defendant. La.Code Civ.P. art. 928(A). The biological parents waived the right to raise this argument because they never alleged the action was premature until after the filing of several petitions to annul the adoption.

Application ofLa.Ch.Code art. 1263(B)

[3] The biological parents contend that their petition to annul the intrafamily adoption was timely as it was filed within six months from their discovery of the alleged fraud and duress and within two years from the date the final decree of adoption was granted.

Louisiana Children’s Code Article 1263(B) provides:

An action to annul a final decree of adoption based upon a claim of fraud or duress perpetrated by an adoptive parent must be brought within six months from discovery of the fraud or duress and in no event later |fithan two years from the date of the signing of the final decree or mailing of the judgment when required.

The comments to La.Ch.Code art. 1263 provide that the purpose of the preemptive periods “is to provide greater certainty and earlier finality to adoption decrees.”

The biological parents have alleged that they did not know what they were signing when they each signed separate authentic acts of consent to adoption in May 2008. They have alleged that they thought they were signing custody documents and that the consent to adoption verifications had been slipped into the stack of documents they were signing. They claim that they did not have knowledge of the adoption proceedings until the attorney provided the biological mother with a copy of the petition for adoption on May 3, 2010.

The documents clearly stated “AUTHENTIC ACT OF CONSENT TO ADOPTION.” Even if we find that the biological parents had no idea that they were signing adoption papers, the record indicates that the parents were advised by the signing judge that they were agreeing to the adoption of their child and would lose all rights regarding the child.

At the hearing on the motion to recuse Judge Edwards as a potential witness held on May 4, 2011, Judge Edwards testified regarding his memory of the hearing with the parties concerning the final decree of adoption. The hearing was held on March 11, 2009, but there was no minute entry and the hearing was not transcribed. In their pleadings, both the biological mother and father admit they were present at this hearing. It was explained to Judge Edwards at the hearing that the mother was unstable in a number of ways and that it was best for the grandparents to adopt the child. Judge Edwards testified that he even inquired if the mother was sure she wanted to do this and explained to her that it could not be “undone.” Judge Edwards testified that he was convinced that the mother knew that her child was being adopted Land that adoption was forever. Once all the parties agreed, he signed the judgment of adoption. At least by the date of this hearing on May 11, 2009, the biological parents knew that their child had been adopted.

The biological parents filed their first petition to annul the adoption on May 13, 2010. This is a year after they had met with the trial judge for the signing of the final adoption papers. Pursuant to La.Ch. Code art. 1263(B), the time limit for filing an action to annul a final decree of adoption based upon a claim of fraud or duress perpetrated by an adoptive parent had passed. The trial court was correct in sustaining the exception of prescription as to the biological parents’ petition to annul the adoption.

Since we find that the biological parents’ claims have prescribed, there is no need for us to discuss the other issues they have raised on appeal.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to K.A.T. and D.M.G.

AFFIRMED.

      . Pursuant to Uniform Rules-Courts of Appeal, Rule 5-1 (a), we are using initials of the parties involved in this adoption proceeding.