author: AMY, Judge. GENOVESE, J.,

text:
    Betty ISAAC v. REMINGTON COLLEGE.
    No. 13-178.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Harold D. Register, Jr., a Professional Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Betty Isaac.
    C. David Vasser, Jr., Vasser & Vasser, Baton Rouge, LA, for Defendant/Appellee, Remington College.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, JAMES T. GENOVESE, SHANNON J. GREMILLION and JOHN E. CONERY, Judges.
   AMY, Judge.

|/The plaintiff in this matter alleged that she suffered injuries when she slipped and fell in a wet hallway. Instead of conducting a full trial, the parties stipulated that the plaintiffs deposition and medical records would be placed into evidence. Thereafter, the trial court found that the plaintiff suffered an aggravation of preexisting conditions as a result of the accident and awarded $1,500.00 in damages for pain and suffering. The plaintiff appeals, contending that the amount of the award is abusively low. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Betty Isaac, was a student at Remington College. According to Ms. Isaac, on August 25, 2009, she was walking in the hallway at Remington College when she slipped on a wet floor and fell. Ms. Isaac complained that she injured her back and knees as a result of the accident. The record indicates that Remington College paid for Ms. Isaac’s medical treatment and physical therapy as a result of the accident.

Thereafter, Ms. Isaac filed suit against Remington College, seeking damages for her injuries. Ms. Isaac later specified that she suffered injuries to her “cervical, thoracic, lumbar spine, and left knee.”

When the day of trial arrived, the parties stipulated that, in lieu of testimony, Ms. Isaac’s deposition and medical records would be submitted into evidence. After reviewing the evidence, the trial court noted that Ms. Isaac had sought medical treatment for left knee pain and lower back pain the day before the accident. However, finding that she may have suffered from a “couple of months of aggravation of a pre-existing condition,” the trial court awarded Ms. Isaac $1,500.00 in damages for pain and suffering.

|2Ms. Isaac appeals, asserting that the trial court erred in awarding only $1,500.00 in damages.

Discussion

Ms. Isaac contends that the trial court’s general damages award was abusively low. In Miller v. LAMMICO, 07-1352, pp. 27-28 (La.1/16/08), 973 So.2d 693, 711, the supreme court addressed the appellate court’s review of general damage awards, stating:

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506, 507 (La.1978); Anderson v. Welding Testing Lab., Inc., 304 So.2d 351, 352 (La.1974).
An appellate court reviews a trial court’s general damage award using the abuse of discretion standard. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976).... An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993) (the fact finder’s discretion in awarding general damages is vast and should rarely be disturbed); Reck v. Stevens [,] 373 So.2d 498, 501 (La.1979). To determine whether there has been an abuse of discretion by the fact finder, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Reck, 373 So.2d at 501.

See also La.Civ.Code art. 2324.1.

At her deposition, Ms. Isaac testified that on August 25, 2009, she slipped and fell on a wet floor at Remington College. She alleged that, as a result of the fall, her back and legs hurt and that she had headaches. Ms. Isaac also claimed that she hit her hand on a locker and, later, told one of her doctors that she blacked out for a few minutes. Thereafter, on August 27, she saw Dr. John Stafford, who |3diagnosed her with thoracic strain and left knee strain. Ms. Isaac continued treatment, including medication and physical therapy, for complaints related to her fall until November 5, 2009, when Dr. Stafford discharged her.

At her deposition, Ms. Isaac testified that she had an automobile accident years before that injured her knees. Although she could not remember which knee was injured, Ms. Isaac testified that it hurt until the swelling went down. Other than that accident, Ms. Isaac denied that she had ever hurt her knees before. Medical records indicated that, while she was being treated for injuries related to her fall, Ms. Isaac was hospitalized as a result of her pre-existing chronic obstructive pulmonary disease with asthma. She testified that, other than her pulmonologist, Dr. Richard Fei, she had not seen any other doctors in the year before the accident and that Dr. Fei’s medical records would be all of her medical records for the year before the accident.

However, the record includes medical records from Dr. Charles Louis that indicate that Ms. Isaac had complaints of back pain, knee pain, and leg pain dating back to at least 2005. Most notably, Ms. Isaac saw Dr. Louis on August 24, 2009 — the day before the accident at Remington College — with complaints of back pain and left knee pain.

Ms. Isaac was placed on “return to work” status in late December of 2009. Further, at her deposition, Ms. Isaac agreed that she was ready to be released from treatment in January of 2010 but that she avoids lifting anything heavy because Rshe gets muscle spasms. However, Dr. Louis’ medical records reveal that Ms. Isaac sought further treatment for complaints related to the accident at Remington College starting in May of 2011, more than a year and a half after the accident and more than a year after she had been discharged from Dr. Stafford’s care.

The parties stipulated at trial that Remington College paid for all of Ms. Isaac’s medical expenses and that there were no special damages at issue.

After reviewing the evidence, the trial court made the following findings:

Ms. Isaac was injured as a result of a slip and fall at Remington College, continued to claim of left leg, back, kind of a meandering type of — if you read all of her medical records, the injuries kind of meander pretty much all over the waterfront. However, there are some significant things, one of which is that the day before the accident happened she was seen by one of her treating physicians for left leg and back pain. The doctor indicates that there could have been a worsening of the pre-existing condition. However, approximately two (2) months post-accident the physician indicated that he was ready to discharge her and, in fact, discharged her. And she presented herself to him complaining of injury to her back and legs as a result of picking up a heavy object, and caused the doctor to conclude that this must have resulted from a new injury.
So, basically, what I’m saying is, at best, we’re looking at maybe a couple of months of aggravation of a pre-existing condition. I cannot exclude the fact that she may have been injured.
I’ll make an award of fifteen hundred dollars ($1500) pain and suffering for the aggravation of the pre-existing condition.

Although the record supports the trial court’s conclusion that Ms. Isaac’s complaints were aggravations of pre-exist-ing symptoms, “a tortfeasor takes his victim as he finds him, and he is responsible in damages for the consequences of his tort although the damages so caused are greater because of a prior condition of the victim which is aggravated by the tort.” Reck v. Stevens, 373 So.2d 498, 502 (La.1979). However, the award rendered bears a reasonable relationship to the | strial court’s findings in light of the evidence that Ms. Isaac’s complaints resolved within a few months and in light of her inconsistent statements, especially concerning her previous treatment. Thus, after reviewing the record and considering the entirety of the evidence, we cannot conclude that this is one of those cases where the trial court abused its great discretion in awarding damages. See Reck, 373 So.2d 498.

Ms. Isaac’s assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm in all respects the trial court’s judgment dated November 5, 2012. Costs of this appeal are assessed to Ms. Isaac.

AFFIRMED.

SAUNDERS, J., dissents.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

hThe majority finds no abuse of discretion by the trial court in its award of general damages in this case. I disagree.

The trial court stated the following in making its award for Ms. Isaac’s pain and suffering:

So, basically, what I’m saying is, at best, we’re looking at maybe a couple of months of aggravation of a pre-existing condition. I cannot exclude the fact that she may have been injured.
I’ll make an award of fifteen hundred dollars ($1500) pain and suffering for the aggravation of the pre-existing condition.

In my view, “a couple of months” aggravation of pre-existing injuries to plaintiffs knees and low back not only warrants but substantiates a general damage award for pain and suffering in excess of $1,500.00. I find such an award to be an abuse of discretion and- would increase the award threefold.

      . Louisiana Civil Code Article 2324.1 provides that: "In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.”

      . In early December of 2009, Ms. Isaac returned to Dr. Stafford's clinic complaining of neck pain as a result of lifting a heavy suitcase. Although Ms. Isaac characterized this as the same pain she was experiencing as a result of the fall, Dr. Stafford's medical records indicate that he considered this a new injury.

      . Dr. Pemell Simon, one of Dr. Stafford’s associates, last saw Ms. Isaac for complaints related to her injuries from lifting the suitcase in January of 2010.

      . We observe that, even though Ms. Isaac sought treatment from Dr. Louis in October of 2009, there is no mention of any complaints regarding the accident at Remington College until May of 2011.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Aaron Orlando RICHARDS.
    No. 12-1354.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Michael Harson, District Attorney, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward John Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Aaron Orlando Richards.
    Aaron Orlando Richards, Angola, LA, Pro se.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| defendant was charged as a habitual offender on December 7, 2011. A habitual offender hearing was held on August 8, 2012, following which the trial court found Defendant to be a third felony offender and, pursuant to La.R.S. 15:529.1(A)(3)(b), sentenced him to imprisonment for life without the benefit of parole, probation, or suspension of sentence.

Defendant filed a “Motion for Reconsideration of Sentence” on August 23, 2012, asserting that the sentence was excessive. The trial court denied the motion without a hearing.

Defendant now appeals the sentence. His argument is that the sentence was excessive under the circumstances of his case.

FACTS:

Defendant was convicted of second degree robbery on July 20, 2011. He was convicted, along with several other offenses, of second degree battery in October 1997, and aggravated flight from an officer in November 2007. Defendant also has an appeal pending in this court for his second degree robbery conviction numbered 12-1382.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR:

Defendant argues that his life sentence is excessive under the circumstances of his case. Defendant was sentenced as a third felony offender pursuant to La.R.S. 15:529.1(A)(3)(b), which provides:

|2A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crime punishable by imprisonment for twelve or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In the current case, Defendant was convicted of the underlying offense of second degree robbery, a violation of La.R.S. 14:64.4, which provides for a range of punishment of not less than three years and not more than forty years at hard labor and is a crime of violence as designated by La.R.S. 14:2(B)(35). He was also convicted of second degree battery, a violation of La.R.S 14:34.1, which is designated a crime of violence. La.R.S. 14:2(B)(6). Finally, Defendant was convicted of aggravated flight from an officer, a violation of La.R.S. 14:108.1, which is also designated as a crime of violence. La.R.S. 14:2(B)(39).

In State v. Boutte, 10-928, pp. 5-6 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, 629, writ denied, 11-689 (La.10/07/11), 71 So.3d 314, this court discussed the constitutionality of minimum sentences imposed upon habitual offenders:

Although the minimum sentences imposed upon multiple offenders pursuant to the Habitual Offender Law are presumed constitutional, a court has the power to declare such a sentence excessive under Article I, Section 20 of the Louisiana Constitution. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339. “A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.” State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676. To rebut the presumption of constitutionality, the defendant must show that he is “exceptional, which in this context means that because of unusual circumstances [he] 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. at 676.

In the current case, in his motion to reconsider the sentence, Defendant only argued that the sentence was excessive. He gave no reasons why the sentence was excessive in his particular case. In brief, Defendant argues only:

“In its ruling[,] the trial court provides no analysis or review of the particular facts and circumstances of this particular defendant such as his “family history, prior criminal conviction like if whether it was violent or non violent and whether it was similar or dissimilar to the conviction for which the defendant is being sentence, other aggravating and mitigating circumstances such as those provided in Code of Criminal Procedure Article 894.1, and the impact of the crime on the victim.” State v. Morgan, [96-354 (La.App. 4 Cir. 4/17/96), 673 So.2d 256], writ denied, 97-2629 (La.4/24/98), 717 So.2d 1161.

However, we find that “[w]here there, is a constitutional mandatory sentence, there is no need for the trial court to justify, under Article 894.1, a sentence it is legally required to impose.” State v. Gill, 40,915, pp. 6-7 (La.App. 2 Cir. 5/17/06), 931 So.2d 409, 413, writ denied, 06-1746 (La.1/26/07), 948 So.2d 165. Defendant makes no argument showing that he is exceptional because of unusual circumstances and that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of his case.

Accordingly, we find no merit to this assignment of error.

\ ¿DECREE:

Defendant’s sentence is affirmed.

AFFIRMED.


author: AMY, Judge. SAUNDERS, J.,

text:
    STATE of Louisiana v. Brendall BOURQUE.
    No. 12-1358.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Michael Harson, District Attorney, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Brendall Bourque.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

pThe defendant was charged with failure to renew his registration as a sex offender, a violation of La.R.S. 15:542.1.1, and failure to notify law enforcement of a change in address, residence, or other registration information, a violation of La.R.S. 15:542.1.2. A jury found the defendant guilty on both counts. Thereafter, the trial court sentenced the defendant to eight years at hard labor on each count. The sentences were to run concurrently and were to be served without the benefit of probation, parole, or suspension of sentence. The defendant appeals. For the following reasons, we vacate the defendant’s convictions and sentences and remand for further proceedings.

Factual and Procedural Background

According to the State, the defendant, Brendall Bourque, was required to report to the Lafayette Parish Sheriffs Office during the month of October 2010 in order to complete his quarterly sex offender registration. The State alleges that the defendant did not report until November 19, 2010, some nineteen days late. Further, the State alleges that the defendant obtained new employment and failed to notify law enforcement of his new employment within the three-day period required by law. The defendant was initially charged with two counts of failure to register as a sex offender, violations of La.R.S. 15:542. The State subsequently filed an amended bill of information charging the defendant with failure to renew his registration as a sex offender, a violation of La.R.S. 15:542.1.1, and failure to notify law enforcement of a change in address, residence, or other registration information, a violation of La.R.S. 15:542.1.2.

A jury subsequently found the defendant guilty of both counts of the amended bill of information. Thereafter, the trial court sentenced the defendant to height years at hard labor on each count, to be served concurrently and without the benefit of probation, parole, or suspension of sentence.

The defendant appeals, asserting as error that:

I. The trial court erred in denying defense counsel’s challenges for cause.
II. The trial court erred in granting the State’s reverse Batson challenge and in denying defense counsel’s Batson challenge.
III. The trial court erred in denying defense counsel’s request for mistrial based on other crimes evidence.
IV. The trial court erred in denying defense counsel’s request for mistrial based on jury misconduct.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. After reviewing the record, the court finds no errors patent.

“Reverse-Batson” Challenges

The defendant asserts that the trial court erred in granting the State’s “reverse-Batson” challenge. Finding merit with the defendant’s assertion of error in this regard, we do not reach the defendant’s other assignments of error.

The supreme court addressed Batson challenges in State v. Nelson, 10-1724, pp. 7-9 (La.3/13/12), 85 So.3d 21, 27-29 (footnotes omitted), stating:

In [Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)], the United States Supreme Court held that the use of peremptory | ^challenges to exclude persons from a jury based on their race violates the Equal Protection Clause. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. The holding in Batson was initially adopted by this Court in State v. Collier, 553 So.2d 815 (La.1989), and has been codified by the legislature in Louisiana Code of Criminal Procedure article 795(C) and (D). While Batson discussed a prosecutor’s use of peremptory challenges, its holding is equally applicable to criminal defendants. See, Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992). The Court in McCollum specifically held “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” 505 U.S. at 59, 112 S.Ct. 2348. Further, in State v. Knox, this Court considered whether the State may successfully object during voir dire to a minority defendant’s alleged racially discriminatory exercise of peremptory challenges. 609 So.2d 803 (La.1992). We applied McCol-lum to hold that the State may invoke Batson where a black criminal defendant exercises peremptory challenges against white prospective jurors. Id. at 806. An accusation by the State that defense counsel has engaged in such discriminatory conduct has come to be known as a “reverse-Batson ” challenge.
The Court in Batson outlined a three-step test for determining whether a peremptory challenge was based on race. Under Batson and its progeny, the opponent of a peremptory strike must first establish a prima facie case of purposeful discrimination. Second, if a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral- explanation for the challenge. Third, the trial court then must determine if the opponent of the strike has carried the ultimate burden of proving purposeful discrimination. Batson, 476 U.S. at 94-98, 106 S.Ct. 1712. See also, Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005); State v. Sparks, 1988-0017 (La.5/11/11), 68 So.3d 435, 468; State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 448.

In J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court extended the holding of Batson, finding that discrimination in jury selection on the basis of gender is also prohibited by the Equal Protection Clause. The trial court’s evaluations of discriminatory intent are due great deference and should not be reversed on appeal unless they are clearly erroneous. State v. Elie, 05-1569 (La.7/10/06), 936 So.2d 791.

In State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, the supreme court noted that, in order to establish a prima facie case of discrimination, the moving party must: 1) demonstrate that the opposing party’s challenges were directed at a member or members of a cognizable group; 2) show that the challenges were peremptory, rather than for cause; and 3) show circumstances sufficient to create an inference that the opposing party struck the venireperson because of his or her membership in that particular group. However, we note that it is unnecessary in this case to determine whether the trial court erred in finding that the State had made a prima facie case of discrimination. Because the defendant offered reasons explaining the use of peremptory challenges, the correctness of the trial court’s finding of a prima facie case of discrimination is moot. See Nelson, 85 So.3d 21.

The record in this case reveals that, during voir dire, both the State and the defendant made Batson motions. After the State alleged that the defendant used almost all of his peremptory challenges against white males, the defendant contended that the State had used its peremptory strikes discriminatorily against black females. Although the record contains some contradictory statements concerning how many peremptory challenges had been used by the defendant and how many of those challenges had been used against white males, our review of the record indicates that the defendant had used six out of ten peremptory strikes against white males. At the time the State made its “reverse-Batson ” challenge, there was one white male remaining on the jury.

|sThe trial court found that the State made a prima facie case regarding the defendant’s use of peremptory challenges. Accordingly, the trial court requested that the defendant provide race-neutral and gender-neutral reasons for the challenges. The record indicates that the defendant initially asserted that the strikes were made based on the potential jurors’ responses and body language.

With regard to venireman Eric Garland, defense counsel stated that he “did not like the way that he responded to certain questions, nor his body language.” After the trial court indicated that it did not consider this to be a race-neutral reason, defense counsel stated that he was concerned about Mr. Garland’s prior jury service, that he had children and grandchildren, and Mr. Garland’s age. The trial court stated again that it was “not finding any of these to be race or sex neutral reasons.” With regard to venireman Peter Serina, defense counsel stated that he had some “initial concerns” but kept him on the panel for observation. Thereafter, based on a conversation with the defendant about Mr. Serbia's body language and the way that he was responding to questions, the defendant opted to “back-strike” Mr. Serina. The trial court found that “so far, I’m not getting any race-neutral and gender-neutral issues.”

Regarding venireman Terry Reddick, defense counsel noted that he had concerns about Mr. Reddick’s previous jury service, his age, and that he had children and grandchildren. Further, he had some concern about Mr. Reddick’s body language and how he responded to questions. Concerning venireman Clifton Menard, defense counsel observed that Mr. Menard had two children, and that he had concerns about Mr. Menard’s age, his body language and responses to questions. Based on those concerns, defense counsel “felt it was inappropriate and that he wouldn’t be a suitable juror in this case.” With regard to venireman Lyle Landry, | fidefense counsel decided to exclude him based on his body language and concerns about whether he could be fair and impartial. Although venireman Cecil Guilbeau was mentioned, no reasons were given for his exclusion from the jury.

The trial court found that the defendant had not offered any race-neutral and gender-neutral reasons for striking the aforementioned veniremen. Based on this finding, the trial court found that there was “a pattern” and ultimately directed that Mr. Guilbeau and Mr. Landry, the last two veniremen struck by the defendant, be added back to the panel. The defendant objected to both the trial court’s finding and the trial court’s determination that Mr. Guilbeau and Mr. Landry were to be added back to the panel.

In Nelson, 85 So.3d at 30 (emphasis added), the supreme court discussed race-neutral reasons, stating that:

This explanation does not have to be persuasive, or even plausible, but must be more than a mere affirmation of good faith or assumption that the challenged juror would be “partial to the defendant because of their shared race.” [Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)]; [Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)]; Batson, 476 U.S. at 97, 106 S.Ct. 1712. At the second step of the Batson inquiry, the issue is the facial validity of the striking party’s explanation. Purkett, 514 U.S. at 768, 115 S.Ct. 1769; Hernandez, 500 U.S. at 360, 111 S.Ct. 1859; Sparks, 68 So.3d at 474. Unless a discriminatory intent is inherent in the striking party’s explanation, the reason offered will be deemed race-neutral. Id.

Further, in Nelson, 85 So.3d at 32, the supreme court noted that the burden in providing a facially neutral reason under the Batson analysis was one of “production and not one of persuasion” and cautioned against combining steps two and three of the Batson analysis. Where the trial court requires a superficially race-neutral and gender-neutral reason to be at least minimally persuasive during the second step of the Batson analysis, the trial court imper-missibly shifts the burden of proof from the party challenging the use of peremptory strikes. Id. Of |7course, once the opposing party has presented facially neutral reasons for exercising his peremptory challenges, “an issue of fact is joined, and the trial court must assess the weight and credibility of the explanation in order to determine whether there was purposeful discrimination in the use of the challenge.” State v. Collier, 553 So.2d 815, 820 (La.1989). In so doing, the trial court must conclude that the opposing party’s reasons are both neutral and reasonable and not pretextual. Id.

Ultimately, the supreme court concluded in Nelson, 85 So.3d 21, that the trial court erred in granting the state’s “reverse-Bat-son” motion. More specifically, the supreme court found that “[although none of the proffered reasons appears to inherently violate equal protection, the court nonetheless rejected nine of them for no specific reason. In rejecting defendants’ proffered race-neutral reasons, the trial court reasoned that defendants failed to rebut the State’s prima facie case of discrimination, essentially finding the defendants’ reasons not persuasive enough.” Id. at 32-33. Accordingly, the supreme court found that the trial court improperly shifted the burden of proof to the defendant when it rejected the defendant’s race-neutral reasons “without conducting an analysis of any of the considerations indicative of purposeful discrimination.” Id. at 33.

Our review of the record indicates that the defendant’s proffered reasons for exercising his peremptory challenges were facially race-neutral and gender-neutral. For instance, “[b]ody language has been held to constitute a valid, race-neutral basis for defeating a Batson claim.” State v. Coleman, 06-518, p. 6 (La.11/2/07), 970 So.2d 511, 515. Thus, when the trial court rejected those reasons without requiring the State to prove purposeful discrimination, the trial court impermissibly shifted the burden of proof to the defendant.

| ^Further, the record reveals that the trial court only found that “a pattern” had been proven. The Supreme Court in Hernandez, 500 U.S. 352, 111 S.Ct. 1859, noted that actions were not unconstitutional solely because they result in a racially disproportionate impact. In order to violate the Equal Protection Clause, there must be proof of discriminatory intent or purpose. Id. A determination of such purposeful discrimination, or discriminatory intent or motive, is essential to the Batson analysis. Nelson, 85 So.3d 21.

Therefore, we find that the trial court erred in granting the State’s “reverse-Bat-son” motion. Consequently, we vacate the defendant’s convictions and sentences and remand the matter to the trial court for further proceedings. “This error is a structural one, affecting the framework within which the trial proceeded.” Coleman, 970 So.2d at 517. Further, having found merit with the defendant’s assertion of error regarding the State’s “reverse-Batson ” motion, we pretermit the defendant’s remaining assignments of error.

DECREE

For the foregoing reasons, the convictions of the defendant, Brendall Bourque, for failure to renew his registration as a sex offender, a violation of La.R.S. 15:542.1.1, and failure to notify law enforcement of a change in address, residence, or other registration information, a violation of La.R.S. 15:542.1.2, are vacated. The defendant’s sentences are also vacated, and the matter is remanded to the trial court for further proceedings.

CONVICTIONS AND SENTENCES VACATED. REMANDED FOR FURTHER PROCEEDINGS.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

hi find no error by the trial court in granting the State’s “reverse-Batson ” motion. Accordingly, I respectfully dissent.

      . After the defendant’s conviction in this case, the State filed a habitual offender bill of information. The trial court adjudicated the defendant to be a fourth felony offender, vacated his sentence for failure to renew his registration as sex offender, and imposed a sentence of twenty years at hard labor, to run concurrently with the sentence for failure to notify law enforcement of a change in address, residence, or other registration information. The defendant’s habitual offender adjudication and sentence is on appeal in State v. Brendall Bourque, 12-1359 (La.App. 3 Cir.6/5/13), 114 So.3d 649, 2013 WL 2420887.

      . As we find that the trial court erred in granting the State’s "reverse-Batson " motion, we do not address the defendant’s contention that the trial court erred in denying his Bat-son challenge to the State's use of peremptory challenges.

      . The trial court stated that the defendant had used seven out of ten strikes on white males, and, later, that the defendant had used six out of nine strikes on white males. Our review indicates that, at the time the "reverse-Bat-son ” motion was made, the defendant had used ten peremptory strikes. The record indicates that the defendant struck six white males: Eric Garland, Cecil Guilbeau, Peter Serina, Terry Reddick, Clifton Menard, and Lyle Landry. The defendant’s remaining four peremptory strikes were used against females.


text:
    STATE of Louisiana v. Brendall BOURQUE.
    No. 12-1359.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Michael Harson, District Attorney, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Brendall Bourque.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

_JjThe defendant, Brendall Bourque, was charged in the Fifteenth Judicial District Court under docket number 129661 with failure to renew his registration as a sex offender, a violation of La.R.S. 15:542.1.1, and failure to notify law enforcement of a change of address, residence, or other registration information, a violation of La.R.S. 15:542.1.2. After a trial, the jury returned guilty verdicts as to both counts. Thereafter, the trial court imposed a sentence of eight years at hard labor, without benefit of probation, parole, or suspension of sentence on each count, to be served concurrently. The defendant’s convictions and sentences regarding those charges are on appeal in State v. Brendall Bourque, 12-1358 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, 2013 WL 2420892.

The defendant was subsequently-charged as a habitual offender in violation of La.R.S. 15:529.1. After a hearing, the trial court adjudicated the defendant a fourth felony offender, vacated his sentence for failure to renew his registration as a sex offender, and imposed a habitual offender sentence of twenty years at hard labor, to be served concurrently with his sentence for failure to notify law enforcement of a change of address, residence, or other registration information.

The defendant appeals his habitual offender conviction and sentence. His appellate counsel has filed a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We determined in State v. Brendall Bourque, 12-1358 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, 2013 WL 2420892, that the defendant’s sentences and convictions for failure to renew his registration as a sex offender, a -violation of La.R.S. 15:542.1.1, and failure to notify law enforcement of a change of address, residence, or other registration information, a violation of La.R.S. 15:542.1.2, must be vacated. [ 2Pursuant to that determination, we find that the defendant’s habitual offender conviction and sentence must also be vacated, and the matter is remanded to the trial court for further proceedings. Otherwise, the defendant’s appeal under this docket number is moot. Appellate counsel’s motion to withdraw is granted.

HABITUAL OFFENDER CONVICTION AND SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS. MOTION TO WITHDRAW GRANTED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

L Given that I would find no error by the trial court in granting the State’s “reverse-Batson” motion in State v. Bourque, 12-1358 (La.App. 3 Cir. 6/5/13) 114 So.3d 642, 2013 WL 2420892, Defendant, in my view, would qualify as a habitual offender. Accordingly, I respectfully dissent.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Jerald C. FOWLER.
    No. 12-1380.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Jerald C. Fowler.
    John F. DeRosier, District Attorney, Fourteenth Judicial District, Carla S. Si-gler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this criminal case, which has been consolidated by this court for opinion purposes, Defendant, Jerald C. Fowler, appeals his sentences pursuant to his convictions for one count of sexual battery, two counts of indecent behavior with a juvenile, and failure to register as a sex offender, alleging constitutionally excessive sentences. For the following reasons, we affirm and amend Defendant’s sentences with instructions.

FACTS AND PROCEDURAL HISTORY

On February 19, 2009, Defendant was charged by bill of indictment, under district court docket number 9683-09 of the Fourteenth Judicial District Court for Cal-casieu Parish, with eight counts of sexual battery (counts one to eight), violations of La.R.S. 14:43.1, and two counts of aggravated rape (counts nine and ten), violations of La.R.S. 14:42. On February 1, 2011, the State amended two of the counts of sexual battery to indecent behavior with a juvenile. Defendant pled guilty to two counts of indecent behavior with a juvenile and to one count of sexual battery. The State nolle prosequied the remaining charges. The trial court sentenced Defendant to fifteen years at hard labor on each count of indecent behavior with a juvenile and thirty years at hard labor on the sexual battery charge.

Additionally, in district court docket number 9684-09, Defendant was charged by bill of indictment on February 19, 2009, with failure to register as a sex offender, a violation of La.R.S. 15:542. On February 1, 2011, Defendant entered a guilty plea to that charge and was sentenced to five years at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court ordered all |2four sentences to run consecutively to each other.

At the guilty plea proceeding, the State set forth the following factual basis for the pleas on these offenses:

1. As to the conviction of sexual battery, the State alleged that in January 2009, Defendant touched, with his hand, the vaginal area of A.T., whose date of birth was March 1, 2005.
2. As to the two convictions of indecent behavior with a juvenile, the State alleged that in January 2009, Defendant touched, with his hand, the vaginal area of J.T., whose date of birth was June 2, 2007, and touched, with his hand, the vaginal area and/or the rectal area of E.C., whose date of birth was November 27, 2000. Defendant confessed to masturbating after each of the sex offenses.
3. As to the conviction of failure to register as a sex offender, the State alleged that Defendant had previously been convicted in Texas of sexual assault of a minor child. Thereafter, between August 1, 2006, and January 21, 2009, Defendant failed to register as a sex offender, failed to notify the sheriff and/or police of his new address, and failed to send out notification cards of being a sex offender as required by law.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent relative to Defendant’s sentence upon his conviction for failure to register as a sex offender.

| ¡¡Defendant was charged with failure to register as a sex offender between August 1, 2006, and January 21, 2009. At the guilty plea proceeding on this charge, this commission date range was referenced, but the parties agreed that the applicable penalty range was the 2006 version of the statute, which provided for a sentence of one to five years; however, the court indicated the one to five years was without benefit of parole, probation, or suspension of sentence, and the parties agreed.

In 2006, the penalty provision for failing to register as a sex offender was contained in La.R.S. 15:542. For a first offense, an offender faced a fine of not more than one thousand dollars or imprisonment with or without hard labor for not less than one year nor more than five years or both. The statute did not require the sentence to be served without benefit of parole, probation, or suspension of sentence (without benefits). In 2007, the penalty provision was moved to La.R.S. 15:542.1.4. For a first offender, the sentence was changed to a fine of not more than one thousand dollars and imprisonment with hard labor for not less than two years nor more than ten years without benefits. 2007 La. Acts No. 460, § 2. When imposing Defendant’s sentence, the judge erroneously referred to the sentencing provisions of La.R.S. 15:542.1.4. The judge imposed Defendant’s sentences for indecent behavior and sexual battery without benefits, and then stated, “I think also the failure to register is also without benefit.” This is erroneous as the trial court sentenced Defendant on the failure to register as a sex offender without benefits in accordance with the 2007 statute as opposed to the 2006 statute, which did not mandate a sentence without benefits, Consequently, we amend Defendant’s sentence for failure to register as a sex offender to delete the provision that it be I served without benefits. The trial court is instructed to note the amendment in the court minutes.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant asserts that the imposition of a total of sixty-five years imprisonment without benefits and the rejection of the State’s recommendation of a twenty-five-year sentence was constitutionally excessive.

Defendant filed a timely motion to reconsider sentence, asserting the same error as assigned on appeal. In the motion, Defendant asserted in pertinent part:

Undersigned counsel attests that the sentence of 60[] years DOC was unduly harsh and burdensome, for the following reasons:
a) He has only one prior felony conviction.
b) The defendant is relatively youthful, and would still like to potentially become a productive member of society for the remainder of his life.
c) The defendant avers that the Court exceeded the jointly recommended sentenced [sic] by more than doubling the sentence imposed. Such a derivation from the recommendation has a chilling effect on assisting the State and the Defense in efficiently resolving cases that come before this Court, and thereby delaying justice for others involved in the judicial system.

The trial court denied the motion without a hearing.

Defendant does not contest the consecutive nature of his sentences, but contests the effect of the consecutive sentences on the overall excessiveness of all the sentences imposed. Additionally, Defendant does not contest that the trial court did not accept the sentencing recommendation, but urges it as a factor when considering the excessiveness. Specifically, Defendant argues:

By rejecting the State’s recommendation, the sentencing court imposed[,] for all practical purposes[,] a life sentence. At 85% the | ¡¡defendant would serve 55+years[,] and at age 36[,] he would be over age 90 upon release. The reality is this defendant will never leave prison.
Under the facts and circumstances of this case[,] such a sentence is grossly disproportionate and certainly shocks any rational sense of justice. State v. Dorthey, 623 So.2d 1276 (La.1993)[.]

The State responds in pertinent part (record references omitted):

[T]he trial judge did not abuse his broad sentencing discretion. The defendant’s attorney argues in brief[,] “[I]t is readily apparent that a sentence tantamount to life imprisonment is unjustified under the facts and circumstances.” The State respectfully submits that a review of the facts and circumstances of this case reveals that the defendant’s sentence is absolutely and completely justified.
As to the sexual battery charge, the victim[,] A.T.[,] reported to her mother that the defendant touched her on her private part. The defendant subsequently confessed to touching A.T.’s vaginal area and that he became aroused[,] and he masturbated after touching A.T. The sexual assault nurse indicated a notch at the 11 o’clock position on A.T.’s hymen. As to one of the counts of indecent behavior with a juvenile, the defendant confessed to sticking his finger in the vagina of another victim, J.T., for sexual gratification. He admitted that “he used a rubber sleeve over his finger and that he later masturbated and ejaculated.” The sexual assault exam showed chaffing on the vagina and tears near the [sic] J.T.’s anus. For the second of the two counts of indecent behavior with a juvenile, the defendant confessed a third victim, E.C., “masturbated his penis in the bathroom,” and the defendant “stuck his finger in her vaginal area.” E.C. reported that the defendant touched her and she told the nurse during the rectal exam “that that was where the defendant had touched her.” As to the one count of failure to register under docket number 9684-09, the defendant was previously convicted in Texas of anally raping a seven year old boy; this offense required registration, which the defendant did not do. The defendant failed to properly notify the authorities of his move.
The State would like [to] point out some other very important facts of the defendant’s offenses. First, all of the victims of the offenses were very young children at the time of the commission of the offenses. A.T. was between 2½ years old to [4] years old, J.T. was 6 months to less than 2 years old, and E.C. was between 7 and 9 years old. These are ages when children are too young to communicate with an adult as to the abuse. As noted by the trial court, the defendant “knew or should have known that the victims were particularly vulnerable or incapable of resistance due to extreme youth.” These children were of the age when children are most defenseless and the most impressionable, and the defendant violated these children for his own pleasure.
| ^Second, even though the defendant confessed to these atrocious aets[,] he blamed the young victims for his behavior. The defendant reported to the Cal-casieu Parish Sheriffs Office that he knew that what he did was wrong, “but the children knew it was wrong too, and they came on to him.” (Emphasis in the original). He reported to the deputies that he told the children[,] “[W]hat they had started was wrong and inappropriate[,]” and “they were making him look like a bad guy.” And, he reported that “[H]e had told the children that they were wrong for rubbing his penis and touching him.”
Finally, in addition to the victims of the offenses to which the defendant pled, the defendant was originally indicted with subjecting other minor children to other reprehensible acts. Unlike the cases cited by the defendant in brief, there were multiple victims involved in the matter sub judice. The defendant only pled guilty to charges involving girls, but there were other charges on the indictment involving boys as well. While being questioned by the deputies, the defendant admitted to putting his hand in his step grandson’s diaper, “playing” with his penis, and then masturbating once everyone left the home. He had another minor boy perform oral sex on him. Other acts that this defendant committed on these young victims were too appalling and abhorrent to be briefed to this Honorable Court but are contained in the record of these proceedings.
Under docket number 9683-09, this defendant was originally indicted with eight counts of sexual battery and two counts of aggravated rape. In exchange for his guilty plea, the State amended the bill to reflect one count of sexual battery and two counts of indecent behavior with a juvenile. All other charges were nolle prossed. Additionally, the defendant’s sentence was not enhanced through habitual offender proceedings. Thus, the defendant received a substantial benefit from the reduced sentencing exposure when the State amended two charges and then dismissed the other charges against him. When a defendant ultimately pleads guilty to an offense which fails to sufficiently detail his criminal conduct, the trial court has substantial discretion to impose the maximum sentence for that offense. State v. Edwards, 2007-1058 (La.App. 3 Cir. 3/12/08), 979 So.2d 623, 628. The trial court may also gauge the substantial benefit a defendant received from a plea agreement. Where the defendant has achieved a marked reduction in his potential length of incarceration, the trial court’s discretion to impose the maximum sentence is enhanced. Edwards, 979 So.2d at 628. In this case, had it not been for the amendments, the defendant could have faced life imprisonment for the aggravated rape offense, and 25-99 years for each count of the sexual battery, with a minimum of 25 years to be served without benefit of probation, parole, or suspension of sentence. Obviously, this defendant received a substantial benefit in exchange for his plea.
Further, while the defendant may balk at his current sentence, this Honorable Court should remember that he did not receive the |7maximum sentence he could have received. As the trial court told the defendant during his plea colloquy, he could have faced a total 154 years without benefit of probation, parole or suspension of sentence. Thus, this sixty five year sentence is by no means excessive when this Court considers what he could have faced had the State not amended his charges (25 years-life imprisonment) or if the defendant had received the maximum sentence of 154 years.
Moreover, the trial court was correct in ordering consecutive sentences. Under LSA-C.Cr.P. Art. 883, the presumption would be that the sentences would be served consecutively, rather than concurrently, because of the different victims. State v. Granger, 2008-1481 (La.App. 3 Cir. 6/3/09), 11 So.3d 683, 689. LSAC.Cr.P. Art. 883 details the general rule that concurrent sentences are appropriate when the defendant is convicted of two (2) or more offenses based on the same act or transaction, or for those constituting part of a common scheme or plan. When there is no common scheme or plan, and the offenses are separate acts or transactions, sentences are presumed to run consecutively, unless the trial court expressly directs otherwise. LSA-C.Cr.P. Art. 883.
The defendant pled guilty to one count of sexual battery, two counts of indecent behavior with a juvenile, and one count of failure to register. Each count that the defendant pled guilty to had a different victim, A.T., J.T. and E.C. Thus, these crimes involved different offenses against different victims. The defendant’s convictions are not based on the same act or transaction, or a common scheme or plan.

This court discussed the standard of review applicable to claims of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59, as follows:

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. The 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).
The fifth circuit, in [State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183], stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

Additionally, this court has held the consecutive nature of the sentences will be included in a bare claim of excessiveness analysis. See State v. Vollm, 04-837 (La.App. 3 Cir 11/10/04), 887 So.2d 664; State v. Day, 05-287 (La.App. 3 Cir. 11/2/05), 915 So.2d 950.

OVERALL EXCESSIVENESS OF THE SENTENCES DUE TO THE CONSECUTIVE NATURE OF ALL THE SENTENCES IMPOSED:

Louisiana Code of Criminal Procedure Article 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

In State v. H.B., 06-1436 (La.App. 3 Cir. 4/4/07), 955 So.2d 255, the defendant challenged the imposition of three consecutive terms of ten years at hard labor on his three convictions of second-degree sexual battery. The defendant contended that his sentences should have been ordered to be served concurrently because they were based on the same act or transaction or were part of a common scheme or plan. This court found the defendant’s contention lacked merit, |9explaining that, “Review of the jurisprudence shows that different victims, places, or dates mean different transactions and different schemes or plans.” Id. at 260.

In State v. Granger, 08-1480 (La.App. 3 Cir. 6/3/09), 11 So.3d 658, the defendant challenged the overall excessiveness of his consecutive sentences imposed by the trial court. As in this case, the sentences arose out of crimes charged in separate docket numbers involving separate crimes and victims. The defendant entered a guilty plea to theft over $500.00, and he also entered guilty pleas for five other offenses, charged in separate charging instruments. The trial court sentenced the defendant to six years at hard labor and ordered the sentence to run consecutively to the six-year sentences imposed on the other five charges to which he also pled guilty. On appeal, the defendant challenged his sentence as excessive, particularly because the six-year sentence was ordered to run consecutively to the six-year sentences imposed on the other five charges. The defendant did not specifically raise the error of consecutive sentences in his motion to reconsider sentence filed in the trial court; thus, he was limited to a bare excessiveness claim. This court held in pertinent part:

With regard to excessive sentence claims, this court stated:
La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205[ (]La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.
The trial court, at the sentencing hearing, stated:
At this time the Court is called upon to go through Article 894.1 with regard to the sentencing guidelines. 894.1 indicates that there should be a sentence of imprisonment if any of the following occurs.
The offender has used his position or status to facilitate the commission of these offenses. The victims in this case were vulnerable. They trusted the defendant, many of them in times of need following the hurricane and needing help to assist them in other repairs and items. The defendant has used his position and ability to be somewhat of a craftsman as far as floor coverings and such to gain their trust and then once he’s received funds then basically disappears with those monies and not provide the services that he previously rendered. In addition, he has submitted a number of worthless checks in an attempt to obtain something for nothing.
Other aggravating [sic], it is noted that these offenses have resulted in significant permanent injury or economic losses to the victims. In reviewing the pre-sentence investigation there is an aggregate of $46,622.76 from a number of victims that was determined by the officer with Probation and Parole and that is a significant economic expense, as well as the inability then to trust other individuals could cause some permanent detriment to the victims in this matter. The Court would find that aggravating.
The offenses involve multiple victims and incidences for which separate sentences have not been imposed. While the matters before the Court include six separate felony offenses, it is noted that there were a number of other offenses pursuant to that guilty plea that were in fact dismissed and the Court is not considering those, however it is noted that multiple victims and incidences did exist for aggravating purposes.
| uThe offender was persistently involved in similar offenses not already considered as a criminal history or part of a multiple offender adjudication. He’s not been addressed as a multiple offender, however in a review of his history, while there’s not been convictions, the Court cannot ignore the number of allegations that have been brought against the defendant for the past fifteen, twenty years. The Court also finds that this offense was a major economic offense.
At this time the defendant has pleaded guilty to docket 20582-02, felony worthless checks in an amount greater than $500; docket 3827-03, theft greater than $500, noting that that was one count with multiple victims inclusive; docket 28024-02, theft greater than $500; docket 20576-03, theft greater than $500; docket 4995-02, theft by fraud; and docket 28023-02, theft greater than $500.
At this time the Court hereby sentences the defendant, Mr. Joseph Alford Granger, to serve the sum of six years on each of those dockets. That term will run consecutive with one another and the Court at this time references Code Article 883 of the Code of Criminal Procedure. As previously indicated the Court is of the opinion it needs to annunciate particular justification if the sentence should be established as consecutive. The basis of that, the Court finds that the defendant has used his position to prey on societal needs. Each of these victims was an individual that had unique issues, losses, for which the defendant took advantage of. They occurred on different times, different physical locations, and all with the defendant’s intent to take from that specific victim or the matters associated with those specific dockets. Some were property takings, some were money takings for equipment rental, repair. Some were monies that were going to be received in advance to repair, such as remodeling or installing flooring, and many of the others were significant issuance of worthless checks to vendors or creditors that the defendant has pled guilty to knowing that there were no funds to pay for those.
The defendant -will serve a total of 36 years with the Department of Corrections as a result of that.
The defendant in this case committed separate crimes, with separate victims, locations, and dates. Pursuant to La. Code Crim. P. art. 883, the sentence was to be served consecutively, unless the court |12expressly directed that it be served concurrently. Accordingly, the trial court did not err in ordering that the six sentences run consecutively.
Regarding the determination of whether the penalty imposed shocks one’s sense of justice, we note that the defendant received a mid-range sentence. Louisiana Revised Statutes 14:67(B)(1) instructs that the penalty for theft over $500.00 includes imprisonment of up to ten years with or without hard labor, or a fine of up to three thousand dollars, or both. The defendant was sentenced to six years, a mid-range sentence. Additionally, the defendant benefited from the aggregation of the three charges into a single count. See La.R.S. 14:67(0 and La.Code Crim.P. art. 481. As such, this assignment of error lacks merit.

Id. at 661-63 (footnote omitted).

In this case, as in Granger, the crimes involved different victims, places, and dates; thus, pursuant to La.Code Crim.P. art. 883, the sentences imposed were to be served consecutively, unless the court expressly -directed that they be served concurrently. Consequently, this court finds the trial court did not err in ordering the sentences to run consecutively.

EXCESSIVENESS OF THE SENTENCES:

We must next consider whether the trial court abused its discretion by imposing excessive sentences. As noted above, the Lisotta factors are applied when reviewing a claim of excessiveness of the sentence.

Nature of the crime:

In the State’s brief to this court, the State sets out in detail the facts surrounding these sexual offenses which are contained above. The young age of the victims is most notable: A.T. was four years old; J.T. was less than two years old; and, E.C. was eight to nine years old at the time of the sexual abuse. Additionally, Defendant had previously committed a similar crime in Texas against a seven year old. Furthermore, sex offenses involving other minors were dismissed by the State.

\wThe nature and background of the offender:

During the plea colloquy, Defendant indicated he completed the twelfth grade. Also, as noted above, Defendant had been previously convicted of a sex offense against a minor child in Texas.

In imposing the sentences, the trial court gave the following reasons:

THE COURT:
At this time the Court declines to accept the recommendation that has been submitted. The Court is called upon to look under sentencing guidelines in determining an appropriate sentence. When the defendant has been convicted of a felony, the Court should impose a sentence of imprisonment if any of the following occurs:
Is there an undue risk that during a period of any suspended or probated sentence the defendant would commit another offense?
It is noted that the defendant had an opportunity, after being released from the State of Texas, did commit another offense (sic). The history and background, as well as the number of victims involved in this, would indicate in the affirmative.
Is the defendant in need of correctional treatment or a custodial environment that can be provided most effectively by commitment to an institution?
Again, it is apparent that Mr. Fowler needs some type of intensive incarceration, as well as extensive treatment in the hopes of, not only curing past behavior, but also providing public safety by his not having access to young children.
Would a lesser sentence deprecate the seriousness of the defendant’s crime?
As indicated by the statutes and the seriousness of those penalties, the Court would find that any lesser sentence of incarceration would deprecate, and answers that in the affirmative.
The degree of incarceration is guided under aggravating and mitigating circumstances. The Court reviews the following and would make the finding that the offender’s conduct during the commission of this offense was manifested and deliberate cruelty to the victims by its very nature and description, which admissions have been made. The offender knew or should have known that the victims were particularly vulnerable or incapable of resistance due to extreme youth. The offender apparently used his position or status in the | ^commission of the offense, being in some type of position of trust or supervision to have access to the children in this capacity.
The offense of sexual battery is one in which actual violence would be deemed to have occurred in the commission of the offense, that being designated as a crime of violence.
While the Court has no information with regard to either psychological or economic losses, it is noted that generally that the type of incidents that have occurred do cause significant permanent injury either from a psychological standpoint or other to the victims and/or their families.
The offenses involved multiple victims or incidents for which separate sentences have not been imposed. It is noted that three distinct victims have been made a part, but the State has made the Court aware that there were other individuals in which no charges are being pursued.
Does he have a drug problem?
MR. COWARD:
I don’t believe so, Judge.
THE COURT:
Other relevant aggravating circumstances, obviously, the age of the individuals, the behavior with regard to those and the past opportunity to try and address the problems. But yet, leaving the State of Texas where he’s required to register, moving to another location, apparently not registering, maintaining false pretenses and returning to the behavior for which he was allowed to be free on society. It does appear that this conduct will cause or threaten serious harm to the public, more aggravating than mitigating. The defendant acted under strong provocation. The Court has received informal information about the abuse that the defendant may have received as a child, noting that many of the treatises and authoritative works with regard to sex offenders are consistent with that. However, it does not provide the Defense to justify the action.
Having no history of prior delinquency or activity, the Court finds more aggravating than mitigating, specifically with the fact that the defendant has a prior sex offense involving a young child.
Is the likely conduct the result of circumstances unlikely to reoccur? More aggravating than mitigating. Circumstances indicate to the contrary.
|1fiIs he likely to respond to probationary treatment? More aggravating than mitigating, noting that he did not conform to the previous sex offender registration requirements.
Are you married?
MR. FOWLER:
Divorced.
THE COURT:
Anybody dependent upon you for support?
MR. FOWLER:
No.
THE COURT:
If they were not mentioned, then the Court would find that the other factors were either deemed insignificant or inapplicable to the instant offense.

The sentence imposed for similar crimes by the same court and other courts:

At the time of the commission of the offense, 2009, the penalty for sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older was imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years with at least twenty-five years of the sentence to be served without benefits. La. R.S. 14:43.1. Thus, Defendant was sentenced to a low range sentence for the offense of sexual battery.

The facts indicate that Defendant touched, with his hand, the vaginal area of the victim A.T., who was four years old at the time. In State v. Redfearn, 44,709 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, writ denied, 09-2206 (La.4/9/10), 31 So.3d 381, the court found a forty-year hard labor sentence for sexual battery, which included thirty years without benefits, was not excessive. The victim, a five-year-old girl, testified her father, while they were both naked, got in bed with her and her father touched her vaginal area with his hand and penis.

hf¡The penalty for indecent behavior with a juvenile under the age of thirteen, when the offender is seventeen years of age or older, is two to twenty-five years at hard labor, with at least two years of the sentence to be served without benefits. La.R.S. 14:81. Thus, in this case, Defendant’s fifteen year sentence for the offense of indecent behavior with a juvenile was mid-range.

The facts indicate that Defendant touched the vaginal areas of J.T., who was less than two years old, and E.C., who was eight or nine years old. In State v. Fregia, 12-646 (La.App. 3 Cir. 12/5/12), 105 So.3d 999, the defendant pled guilty to indecent behavior with a juvenile under the age of thirteen years and was sentenced to the maximum sentence, twenty-five years at hard labor. On appeal, the defendant challenged the excessiveness of his sentence. This court affirmed that twenty-five year sentence.

In the present case, Defendant benefited from his plea agreement. The State reduced two of the sexual battery charges to indecent behavior with a juvenile. This reduced Defendant’s mandatory sentencing exposure as the sentencing range of indecent behavior with a juvenile under the age of thirteen, when the offender is seventeen years of age or older, is two to twenty-five years at hard labor; whereas, sexual battery is a minimum of twenty-five years. Additionally, the State dismissed four other counts of sexual battery and two counts of aggravated rape. The aggravated rape charges exposed Defendant to life imprisonment. Furthermore, the State agreed to not enhance Defendant’s sentence as a habitual offender.

Relevant to Defendant’s sentence for his failure to register as a sex offender, the agreed-upon date of the commission of this offense was 2006. At that time, the 1 l7penalty provision for failing to register as a sex offender was contained in La.R.S. 15:542. For a first offense, an offender faced a fine of not more than $1,000.00 or imprisonment with or without hard labor for not less than one year nor more than five years or both. Thus, Defendant was sentenced to the maximum term, although the trial could have imposed a fine in addition to the maximum term.

In State v. Bergeron, 12-71 (La.App. 3 Cir. 10/3/12), 99 So.3d 90, writ denied, 12-2388 (La.4/26/13), 112 So.3d 837, 2013 WL 1859254, the defendant was convicted of failure to register as a sex offender because he moved and failed to notify authorities of his new address and send out the required notice. At the time of the commission of the offense, the penalty was a fine of not more than $1,000.00 and imprisonment at hard labor for not less than two nor more than ten years without benefits. La.R.S. 15:542.1.4. The defendant was sentenced to serve the maximum term of incarceration. On appeal, the defendant challenged the sentence as excessive. This court affirmed the sentence. In doing so, this court noted that in the trial court’s reasons for imposing the sentence, the trial court stated the defendant knowingly violated the registration statute when he could have complied easily through the assistance of his brother or other people.

We note that, at the guilty plea proceeding, Defendant did not offer any excuse for failure to register. Moreover, based upon the charging instrument, Defendant was in Louisiana for over two years without registering as a sex offender. During that time, he committed sexual offenses in Louisiana. Therefore, in applying the Lisotta factors, we find that the trial court did not abuse its discretion in imposing the five year sentence.

Defendant’s assignment of error of excessive sentence as to all sentences for all offenses is without merit.

¡^DISPOSITION

Defendant’s sentence for failure to register as a sex offender is amended to delete the provision that it be served without the benefit of parole, probation, or suspension of sentence, and the trial court is instructed to note the amendment in its court minutes. In all other respects, Defendant’s sentences are affirmed in their entirety.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.

      . A separate appeal has been lodged in State v. Fowler under docket number 12-1381 relative to Defendant’s sentence on his conviction for failure to register as a sex offender. Defendant’s claim of excessive sentence and his assignment of error is the same in both cases, and these cases have been consolidated by this court for opinion purposes to avoid duplication.

      . The 2006 version of the statute required a person who had been convicted of or had pled guilty to a sex offense and was residing in Louisiana to register within twenty-one days of establishing residence in Louisiana. The record indicates the Defendant’s prior offense for which he was required to register was committed in Texas.

      . Defendant mistakenly states the total sentence was sixty years instead of sixty-five years.

      . The penalty for aggravated rape of a person under the age of thirteen, a violation of La. R.S. 14:42, was either life imprisonment or the death penalty, as elected by the District Attorney. The District Attorney did not elect the death penalty in this case. Additionally, the death penalty for this crime was found unconstitutional by the United States Supreme Court.


text:
    STATE of Louisiana v. Aaron Orlando RICHARDS.
    No. 12-1382.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Michael Harson, District Attorney, Cynthia K. Simon, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward John Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Aaron Orlando Richards.

      Aaron Orlando Richards, Angola, LA, Pro se.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

11 Aaron Orlando Richards was charged on October 15, 2009, by a bill of information, with one count of second degree robbery, a violation of La.R.S. 14:64.4. Jury trial commenced on October 11, 2011, and on October 12, 2011, the jury returned a verdict of guilty as charged. The trial court ordered a presentence investigation report.

Sentencing occurred on May 30, 2012. Defendant was sentenced to twenty-five years imprisonment. It was noted at the time that a habitual offender hearing was set for June 27, 2012. Defendant filed a “Motion for Reconsideration of Sentence” on June 8, 2012. The motion was denied without hearing on June 12, 2012.

Defendant has perfected a timely appeal. He asserts two assignments of error: 1) the State of Louisiana failed to affirmatively prove that the confession given on May 5, 2009, was freely and voluntarily made and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises; and 2) without the inadmissible confession, the State failed to provide sufficient evidence that Defendant committed the offense of second degree robbery.

FACTS:

On April 16, 2009, Defendant, along with another man, accosted the victim, Addie Bourgeois, as she exited her car in the parking lot of Buffalo Wild Wings Sports Bar. The man punched the victim twice in the face, causing serious injury, took her purse containing credit cards and money while Defendant acted as a lookout.

ERRORS PATENT:

Lin accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there is one error patent.

Louisiana Code of Criminal Procedure Article 930.8 provides that the defendant has two years after the conviction and sentence become final to seek post-conviction relief. Section C of Article 930.8 provides in pertinent part: “At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing.” In this case, the transcript of sentencing indicates the trial court, referring to post-conviction relief, informed Defendant that he has two years to file for post-conviction relief. We find that the trial court’s advisement was insufficient. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163. Thus, we order the trial court to instruct Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within thirty days of the rendition of this opinion and to file written proof in the record that Defendant received the notice. Roe, 903 So.2d 1265.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

Defendant argues that the State did not affirmatively establish at trial that the incriminating statements he made to the police were freely and voluntarily made. Defendant argues that there was no corroboration such as a written or recorded statement by him to support the police officer’s testimony that he admitted that he acted as a lookout for his co-perpetrator. Furthermore, Defendant argues that without his confession, there was insufficient evidence to sustain the jury’s verdict of guilty of second degree robbery.

On the issue of admission of a confession at trial, the fifth circuit noted in State v. Clofer, 11-494, p. 5 (La.App. 5 Cir. 11/29/11), 80 So.3d 639, 642:

| ^Before introducing a defendant’s incul-patory statement made during a custodial interrogation, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, and that the statement was made “freely and voluntarily, and not under the influence of fear, intimidation, menaces, threats, inducement or promises.” State v. Rose, 05-770, p. 9 (La.App. 5 Cir. 2/27/06), 924 So.2d 1107, 1111, writ denied, 06-1286 (La.11/22/06), 942 So.2d 554.

Defendant further argues that “[t]he obligation to establish the free and voluntary nature of the confession or statement is mandatory and must be affirmatively established by the State. This cannot and was not waived by the defendant and is not simply a prophylactic measure that can be skipped.” However, as correctly pointed out by the State, Defendant neither filed a motion to suppress the statements prior to trial, nor did he object to the police officer’s testimony regarding the statements Defendant made during the interrogation concerning his participation in the second degree robbery.

At trial, Detective Borel, a detective with the Lafayette City Police Department, testified that during his investigation of the crime, he was given Defendant’s name as a suspect. On April 28, 2009, Defendant was arrested, and after he was advised of his Miranda rights, he acknowledged and signed a waiver of rights form. At the time, he denied involvement in the offense. However, on May 5, 2009, Defendant returned to the police station without being asked, and he volunteered the information that he was with a Mr. Darvin when the robbery occurred and acted as a lookout. Again, prior to this admission, Defendant was read the Miranda rights, which he again acknowledged and signed the form. At no time during the detective’s testimony did Defendant object.

In State v. Walker, 534 So.2d 81, 84 (La.App. 3 Cir.1988), this court found that the defendant’s confession was freely and voluntarily given and stated:

In the case sub judice, although defendant objected at trial to the introduction of his oral confession on the grounds it was not freely and voluntarily made, the record is void of a pretrial motion to b suppress, despite defense counsel’s knowledge of the confession through pretrial discovery. LSA-C.Cr.P. Art. 703(F) states in pertinent part that the “[f|ailure to file a motion to suppress evidence in accordance with this Article [i.e., prior to trial] prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.” See also LSA-C.Cr.P. Art. 521. While we find that defendant is precluded under LSA-C.Cr.P. Art. 703(F) from attempting to suppress his oral confession at trial, we nonetheless find that defendant was read his Miranda rights, signed a waiver form and then made his confession. Defendant has not shown he was coerced or threatened in any way.

Further, in State v. Moore, 38,444 (La.App. 2 Cir. 6/23/04), 877 So.2d 1027, writ denied, 04-2316 (La.2/4/05), 893 So.2d 83, the state submitted DNA evidence and the defendant objected at trial. The second circuit noted that the defendant’s failure to file a motion to suppress prevented him from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.

In the current case, Defendant confessed his participation in the robbery. Defendant was Mirandized twice regarding the voluntariness of the statements. The advice of rights forms were submitted into the record. “The conclusions of a trial court on the credibility and weight of testimony relating to the voluntariness of a confession are given great weight and will not be disturbed when supported by the record.” Walker, 534 So.2d at 84. Thus, even if Defendant is precluded from attempting to suppress his confession, there is sufficient evidence in the record to indicate that the confession was freely and voluntarily made. Accordingly, the evidence was sufficient to sustain the jury’s verdict, and we find that these assignments of error are without merit.

DECREE:

Defendant’s conviction of second degree robbery is affirmed. The trial court is ordered to instruct Defendant of the provisions of La.Code Crim.P. art. 930.8 by |fisending appropriate written notice to him within thirty days of the rendition of this opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED, WITH INSTRUCTIONS.


author: PETERS, J.

text:
    STATE of Louisiana v. Dannie Lee LAFLEUR.
    No. 12-1383.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Dannie Lee LaFleur.
    Dannie Lee LaFleur, Angola, LA, In Proper Person.
    Trent Brignac, District Attorney, Gregory J. Vidrine, Assistant District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   PETERS, J.

_JjA jury convicted the defendant, Dannie Lee Lafleur, of first degree murder, a violation of La.R.S. 14:30, and armed robbery, a violation of La.R.S. 14:64. Thereafter, the trial court sentenced the defendant to serve life in prison without benefit of parole, probation, or suspension of sentence on the first degree murder conviction; and to serve twenty-five years in prison, without the benefit of parole, probation, or suspension of sentence on the armed robbery conviction. The trial court ordered that the sentences run consecutively. In his appeal, the defendant asserts in his sole assignment of error that his convictions and sentences constitute double jeopardy.

The State of Louisiana (state) charged the defendant with the two offenses by grand jury indictment. The indictment reads in pertinent part:

DANNIE LEE LAFLEUR committed the offenses(s) of:
Count # 1: First Degree Murder La. R.S. 14:30
Count # 2: Armed Robbery La.R.S. 14:64

in the Parish of Evangeline in that:

Count # 1: Dannie Lafleur, on or about May 6, 2011, committed the offense of First Degree Murder by the killing of Tuc Thanh Do[.]
Count # 2: Dannie Lafleur, on or about May 6, 2011, committed Armed Robbery of Tat Nail, by use of force or intimidation while armed with a dangerous weapon, to wit: a firearm[.]

Tuc Thanh Do, together with his wife, Thao Thi Thanh Le, owned Tat Nail Salon in Evangeline Parish. On May 6, 2011, the defendant shot and killed Tuc Thanh Do during the commission of an armed robbery of the couple’s business establishment.

[¡.Louisiana Revised Statutes 14:30 provides that there are a number factual scenarios which will constitute first degree murder. Although the grand jury indictment does not specify which section of the statute applies to this particular prosecution, the facts presented make it clear that the state brought the charge pursuant to La.R.S. 14:30(A)(1), which provides in pertinent part that “[fjirst degree murder is the killing of a human being ... [wjhen the offender has the specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... armed robbery[.]”

Thus, despite the silence of the grand jury indictment, the defendant was charged with the first degree murder of Tuc Thanh Do based on armed robbery as the underlying felony. In fact, that theory of prosecution was made clear to the jury in the state’s closing argument:

Normally I would take that jury sheet and I would go through each and every element of these crimes but what I just or what the State has just told you there’s no question that an armed robbery was committed. Money was taken from Mr. Do, from the nail shop in his control by the use of force or armed with a weapon. The Judge is gonna tell you that armed with a weapon, a gun is a weapon. It fits. This is beyond reasonable doubt that this was committed. First Degree Murder requires the lolling of a human being. Mr. Do was killed. The offender has specific intent to kill. Again the Judge will instruct you when you have a gun and you point it at somebody from less than three feet that’s specific intent to kill and engaged in an armed robbery. Well the armed robbery has been discussed.

A person cannot twice be placed in jeopardy for the same offense. U.S. Const, amend. V; La. Const, art. I, § 15. The defendant argues, and the state acknowledges, that it is well-settled that convictions for both a felony murder and the underlying felony violate double jeopardy protections. See State v. Marshall, 81-3115, 94-461 (La.9/5/95), 660 So.2d 819.

[.¡Nonetheless, the state asserts on appeal that the defendant’s convictions do not violate the constitutional double jeopardy protection because it could have separately charged the defendant with the armed robbery of the victim’s wife and that “convictions for felony murder and a felony arising out of the same occurrence are not invalidated when another felony could have served as a predicate offense in the underlying felony murder conviction.” In support of this argument, the state directs us to Neville v. Butler, 867 F.2d 886 (5th Cir.1989), a case which arose from a Louisiana prosecution. While we do not disagree with the holding in Neville, we do not find that it supports the state’s position in this case.

The defendant in Neville had been charged with one count of armed robbery of Joyce Bourg and Helen Capitano, and one count of attempted first degree murder of Ms. Capitano. The offenses occurred when he entered a Terrebonne Parish bar owned by Ms. Bourg, where Ms. Capitano worked as a barmaid, and robbed the two women at gunpoint. Ms. Bourg gave the defendant money from the cash register and her purse, but when Ms. Cap-itano reached for her own purse, the defendant shot her in the leg and ran out of the bar. He pled guilty to both charges, was sentenced, and began serving his time. The matter came before the Louisiana courts again when the defendant filed an application for post-conviction relief asserting that his convictions violated his constitutional rights on double jeopardy principles.

After exhausting his state court remedies, the defendant sought relief in federal court. The federal district court denied him relief, but the Fifth Circuit granted him relief. In addressing the merits of the double jeopardy claim, the court stated:

Respondents assert that the appropriate test for determining whether petitioner has been subject to double jeopardy is that ^enunciated in Blockburger v. United States, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306] (1932). In Bloekbur-ger, the Court held that “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not”. Id. at 304 [52 S.Ct. 180]. Here respondents asserted that, since conviction for attempted first degree murder requires proof of elements and facts different from that required to convict for armed robbery, petitioner has not been placed in double jeopardy.
When one of the offenses involved is felony murder, however, a different rule is applied. In Harris v. Oklahoma, 433 U.S. 682 [97 S.Ct. 2912, 53 L.Ed.2d 1054] (1977) (per curiam), the Court held that one cannot be convicted of both felony murder and the underlying felony, reasoning that “[w]hen, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one”. Id. at 682 [97 S.Ct. 2912]. Moreover, the converse is true: conviction of a lesser-included offense bars subsequent conviction of the greater offense. Brown v. Ohio, 432 U.S. 161, 168-69 [97 S.Ct. 2221, 53 L.Ed.2d 187] (1977). This follows because a lesser or greater-included offense is, for double jeopardy purposes, the “same offense”. Id. at 168 [97 S.Ct. 2221].
Three years after Harris, the Court in Illinois v. Vitale, 447 U.S. 410 [100 S.Ct. 2260, 65 L.Ed.2d 228] (1980), elaborated on its holding in Harris, stating that “for purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense”. Id. at 420 [100 S.Ct. 2260].
The rule clearly emerging from Harris and its progeny is that the double jeopardy clause bars prosecution for both felony murder and the underlying felony.

Id. at 888-89 (alterations in original).

The court in Neville went on to explain that the rule did not apply to all situations:

The rule under consideration, however, does not invalidate convictions of both felony murder and a felony arising out of the same occurrence where it is shown that another separate felony could have served as the predicate offense underlying the felony murder conviction. For example, in Sekou [v. Blackburn, 796 F.2d 108 (5th Cir.11986) ], we held that there would be no double jeopardy violation where the defendant was found guilty of armed robbery at trial and later pleaded guilty to felony murder “if the state could have proved felony-murder without also proving armed robbery”. 796 F.2d at 111. Since there was “absolutely no indication that the state intended to prove only the farmed robbery as the basis for a felony-murder conviction”, we held that there was no double jeopardy violation. Id. It was apparent from the facts in Sekou that the state could have proved kidnapping as an alternative underlying felony. Id. at 111, n. 3.
Petitioner argues that, since in his case armed robbery is a lesser-included offense of attempted first degree felony murder, conviction of both offenses places him twice in jeopardy for the same offense. He further argues that there are no other felonies arising from the holdup at the bar for which he possibly could be convicted and which independently could support the felony murder conviction without violating the double jeopardy clause. Respondents argue that there is no double jeopardy violation since petitioner pled guilty to not two' but three crimes: attempted first degree murder of Capitano, armed robbery of Capitano and armed robbery of Bourg. Accordingly, respondents argue, even if petitioner’s conviction of both armed robbery and attempted murder of Capitano would result in double punishment for the same offense, the convictions nevertheless should stand since the armed robbery of Bourg could have served as a separate predicate offense underlying the felony murder conviction.
Since this case involves a double jeopardy challenge to convictions after pleading rather than after trial, it is difficult to rule confidently on the crucial issue of whether one or two armed robbery offenses were involved. [U.S. v.] Atkins [ ], 834 F.2d [426] at 434 [(5th Cir.1987)] (since there was no trial, the court’s task of evaluating petitioner’s double jeopardy claim was made “more complicated”). Our task here is the more difficult because the district court declined to hold an evidentiary hearing before summarily rejecting petitioner’s claim. Nevertheless, after examining the record and the briefs, and after hearing oral argument, we are convinced that petitioner’s double jeopardy claim should be sustained.
An examination of the two counts arising from the holdup at the bar to which petitioner pled guilty exposes the double jeopardy problem. Count One charged armed robbery of “one, Joyce Bourg and Helen Capitano” in violation of La.Rev. Stat-Ann. 14:64 (armed robbery). On its face, therefore, Count One clearly charged petitioner with a single offense which fortuitously involved two victims, rather than two separate armed robberies. State v. Ware, 345 So.2d 33, 35 (La.1977); State v. Foe, 337 So.2d 491, 492 (La.1976); see also Ladner v. United States, 358 U.S. 169, 178 [79 S.Ct. 209, 3 L.Ed.2d 199] (1958) (single discharge of gun which harmed two victims held to be a single offense under federal assault statute). Furthermore, assuming arguendo that the facts surrounding the holdup of the bar possibly might support two armed robbery counts, the state is precluded from prosecuting petitioner for two armed robberies because it opted in the indictment to state the charge as it did. Foe, supra, 337 So.2d at 492.

Id. at 889-90 (footnote omitted).

| sin the matter now before us, there is one armed robbery with two victims, and the state opted in its presentation of the evidence to designate the armed robbery as the underlying felony offense. Thus, we find that the present case is analogous to the factual scenario in Neville in that the indictment charged the defendant with a single offense, robbing the nail-salon owners, Tuc Thanh Do and Thao Thi Thanh Le. Pursuant to the reasoning in Neville, double jeopardy occurred in the present case.

In order to remedy the violation of double jeopardy, we vacate the conviction and sentence of the less severely punishable offense. State v. Doughty, 379 So.2d 1088 (La.1980). Accordingly, the defendant’s conviction and sentence for armed robbery is vacated.

DISPOSITION

For the foregoing reasons, we vacate the defendant’s conviction and sentence for armed robbery based on constitutional double jeopardy.

CONVICTION AND SENTENCE VACATED IN PART.

      . The State of Louisiana had previously announced that it was not seeking the death penalty in the prosecution of the first degree murder charge.

      . In Marshall, the supreme court found that the defendant’s conviction of attempted first degree murder during an armed robbery and the armed robbery itself violated the constitutional prohibition against double jeopardy.

      . The defendant has not appealed his conviction and sentence for first degree murder; therefore, we do not address them.