author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. William ANDERSON.
    No. 12-KA-869.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    William Anderson, Cottonport, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR.
   ROBERT M. MURPHY, Judge.

12Pefendant, William Anderson, appeals his May 25, 2012 sentences for two counts of sexual battery in violation of La. R.S. 14:43.1, one count of oral sexual battery in violation of La. R.S. 14:43.3, and one count of molestation of a juvenile in violation of La. R.S. 14:81.2, as excessive. For the reasons that follow, we find defendant’s assignments of error to be without merit and affirm his sentences.

FACTS AND PROCEDURAL HISTORY

This is defendant’s second appeal. On original appeal, we affirmed defendant’s convictions, but vacated his sentences and remanded for re-sentencing after finding that the trial court failed to observe the 24-hour delay mandated by La.C.Cr.P. art. 873. State v. Anderson, 10-779 (La.App. 5 Cir. 3/27/12), 91 So.3d 1080. Defendant filed the instant appeal after his re-sentencing. The pertinent facts as to defendant’s convictions are as follows.

I ¡¡On May 1, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of sexual battery (counts one and two) in violation of La. R.S. 14:43.1; one count of oral sexual battery (count three) in violation of La. R.S. 14:43.3; and one count of molestation of a juvenile (count four) in violation of La. R.S. 14:81.2 against the victim, L.L.P. Defendant pled not guilty at arraignment. On. October 30, 2009, the State filed a “Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to La. C.E. art. 412.2.” On January 25, 2010, the trial court granted the State’s motion, finding that the evidence introduced was indicative of defendant’s lustful disposition toward children pursuant to La. C.E. art. 412.2.

The case proceeded to trial before a six-person jury on March 2, 2010. At the time of trial, L.L.P. was 29 years old. She testified that she knew defendant because he was her grammar school bus driver until she graduated in the eighth grade. In the spring of 1995, when L.L.P. was 14 years old and defendant was in his thirties, she began to have more regular interaction with defendant because he provided music for West Bank Mardi Gras parades, in which L.L.P. participated as a cheerleader. During this time, defendant and L.L.P. began talking over the telephone regularly about music.

After Mardi Gras ended, their phone conversations became more personal; the defendant began to ask about L.L.P.’s family. Eventually, the relationship progressed to defendant jiggling his keys as he walked by L.LJP.’s classroom; finding excuses to enter her classrooms to look at the A/C vents; and leaving notes in her locker. One day, defendant “got real close” to L.L.P. and told her that he wanted to give her a kiss, paused, and then handed her a Hershey’s Kiss. At that point, L.L.P. “realized that I was special and that something was going on.”

|4In May of 1995, L.L.P.’s parents allowed her to accompany defendant to a recording studio so she could play piano on a song defendant wrote. At the studio, defendant became emotional about the fact that L.L.P. would be graduating from grammar school shortly. Defendant did not bring L.L.P. directly home; rather he took her to his home to show L.L.P. his “band room” and his waterbed. While at his home, defendant told L.L.P. that he had fallen in love with her, and kissed her, L.L.P. described the kiss as a “kiss like in the movies” and “an adult kiss.”

During the drive home defendant told L.L.P. that they were going to be in “an adult relationship” that, if exposed, would result in his six-year-old daughter becoming homeless. L.L.P. thereafter began sneaking out of her house at night to spend time with defendant after her parents had fallen asleep. L.L.P. and defendant began watching R-rated movies together and fondling each other through clothing. L.L.P. testified that the movies gradually became more “X-rated” and the “make-out sessions would increase little bit by little bit.” L.L.P. further explained that the kissing and fondling progressed from “rubbing me with my clothes on” to “shirt off’ to “no bra” to “just panties.”

L.L.P. testified that she began having sex with defendant in the summer of 1995, when she was 14 years old and defendant was in his thirties. L.L.P. testified that she and defendant also engaged in oral sex on each other and that defendant penetrated her digitally. L.L.P. indicated that her relationship with defendant continued until just after she turned 16 years old.

L.L.P. admitted that she did not make a complaint to police about defendant until years later when she learned about defendant’s relationship with another 15-year old girl, S.A., during the year of 2007. L.L.P. testified the she “felt responsible for her.” Evidence of defendant’s relationship with S.A., which resulted in a conviction for indecent behavior with a juvenile in case number 08 — fL207,fi was also admitted at the trial involving L.L.P. This evidence was admitted pursuant to the trial court’s order granting the State’s notice of intent to introduce evidence of similar crimes indicating a lustful disposition towards children under La. C.E. art. 412.2.

D.A., S.A.’s mother, testified at the trial involving L.L.P. D.A. testified that she had previously lived next door to defendant and his family and that defendant had been very close friends with S.A.’s father, who passed away on March 24, 2007. After her husband passed away, D.A. testified that she became concerned at the nature of the relationship defendant had with S.A. D.A. testified that “events evolved to the point where [she] believed that it was appropriate to seek a protective order” against defendant. On November 3, 2007, when S.A. was 16 years old, D.A. found defendant hiding in S.A.’s closet with a bag over his head. D.A. called the police and defendant was apprehended shortly thereafter.

S.A. also testified at defendant’s trial. She first met defendant when she was 15 years old. In the months before her father died, S.A. and defendant began talking frequently on the telephone. S.A. testified that on New Year’s Eve 2006, defendant kissed her on the lips, which she described as “more than a friendly kiss.” After her father passed away, the relationship between S.A. and defendant progressed to a point where they began talking more and started meeting at a Belle Chasse Panda King parking lot to kiss. S.A. described how she would enter defendant’s car and engage in french kissing.

At the conclusion of trial, defendant was found guilty as charged on all counts. Defendant filed a Motion for New Trial and Alternatively to Arrest the Judgment on March 23, 2010. On the same date, prior to sentencing, the trial court denied defendant’s post-verdict motions and ordered defendant to serve ten (10) years imprisonment at hard labor on count one, ten (10) years imprisonment at |6hard labor on count two, and fifteen (15) years at hard labor on counts three and four, with counts one, two, and three to be served without benefit of probation, parole, or suspension of sentence. The trial court further ordered that all sentences were to run consecutively to each other and consecutively with defendant’s seven-year sentence imposed in case number 08-1207, division “M” of the 24th Judicial District Court. Immediately after sentencing, defendant filed a Motion to Reconsider Sentence and a Motion for Appeal. The trial court denied defendant’s Motion to Reconsider Sentence, but granted his Motion for Appeal on the same day.

On his first appeal, defendant challenged his convictions and sentences, arguing that his convictions violated the principles of double jeopardy, that the trial court erred in denying his Motion to Quash, and that his sentences were illegal and excessive. On March 27, 2012, we affirmed defendant’s convictions but vacated his sentences after finding that the trial court had failed to observe the 24-hour delay mandated by La.C.Cr.P. art. 873. State v. Anderson, 10-779 (La.App. 5 Cir. 3/27/12), 91 So.3d 1080.

On remand, and prior to re-sentencing on May 25, 2012, defendant filed a pro se Motion for New Trial, Motion to Arrest Verdict Judgment, and a Motion for Post Verdict Judgment of Acquittal. With respect to the Motion for New Trial and Motion to Arrest Verdict Judgment, the trial court found that this Court previously upheld the denial of these motions, thus, rendering them “moot as duplicative.” The trial court then denied defendant’s Motion for Post Verdict Judgment of Acquittal, finding that this Court previously reviewed defendant’s case pursuant to the standard set forth in La.C.Cr.P. art. 821 and determined that the evidence supported the verdicts rendered by the jury.

|7After disposing of defendant’s pro se motions, the trial court re-sentenced defendant to ten (10) years in the Department of Corrections on counts one and two, and to fifteen (15) years at hard labor on counts three and four, to run consecutively to each other and consecutively with defendant’s seven-year sentence imposed in the 24th Judicial District Court case number 08-1207, division “M.” The trial court also ordered counts one, two, and three to be served without benefit of probation, parole, or suspension of sentence. The trial court denied defendant’s pro se Motion to Reconsider Sentence based on the excessiveness of the sentences imposed, and granted his Motion for Appeal. Defendant’s second appeal now follows.

ASSIGNMENTS OF ERROR

In his sole counseled assignment of error, defendant contends that the trial court erred in imposing an excessive sentence. In addition, defendant raises the following pro se assignments of error:

1. The evidence is insufficient to support his convictions on counts 1, 2 and 8 because the convictions were obtained through the victim’s perjured testimony and the evidence is insufficient to support his conviction on count 4 because the State failed to prove one element of the crime of molestation of a juvenile.
2. Defendant was denied due process as to count 4 due to the State’s failure to charge him with the correct element of the crime (“use of influence or by position of control”).
8. The trial court erred in permitting “other crimes” evidence pursuant to La. C.E. art. 412.2 because Article 412.2 did not exist at the time of the offenses for which he was convicted.
4. The trial court erred in denying his motion to arrest verdict judgment because the court’s application of the amended provision of La.C.Cr.P. art. 571.1 constituted a violation of ex post facto laws.
5. The trial court erred in imposing unconstitutionally illegal and excessive sentences.

|SLAW AND DISCUSSION

Pro Se Assignments of Error Numbers One, Two, Three and Four

In defendant’s pro se assignments of error numbers one, two, three and four, he raises several claims of alleged trial error. In defendant’s original appeal, we reviewed the sufficiency of the evidence in this ease and found that the evidence was more than sufficient to support defendant’s convictions. Anderson, supra at 1090. Thus, we affirmed defendant’s convictions, vacated defendant’s sentences for failure to observe the 24-hour delay mandated by La.C.Cr.P. art. 873, and remanded this case for re-sentencing only. Id. Any issues not raised in defendant’s original appeal, which could have been raised, are considered waived. State v. Anderson, 97-2587 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 18 (citing State v. Freeman, 565 So.2d 1084 (La.App. 4 Cir.1990)). Because we have previously affirmed defendant’s convictions in his original appeal, he may only challenge his re-sentencing in the instant appeal. Id.; State v. Martinez, 09-1057 (La.App. 5 Cir. 5/25/10), 40 So.3d 1113,-1115. The alleged trial errors in defendant’s pro se assignments of error numbers one, two and three could have, and should have, been raised in defendant’s original appeal. Accordingly, these issues are waived and not within our jurisdiction on appeal.

In his pro se assignment of error number four, defendant raises the same issue that he raised in his original appeal. Specifically, defendant alleges, for the second time, that the trial court’s application of the amended provision of La.C.Cr.P. art. 571.1 constituted a violation of ex post facto laws. This issue was fully addressed and determined meritless in defendant’s first appeal because the legislature amended the time period of La.C.Cr.P. art. 571.1 before the prejamendment9 time period of that article expired with respect to defendant’s charged offenses. Anderson, supra at 1086-87 (citing State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962), abrogated on other grounds by State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01) 779 So.2d 735). Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Jacobs, 04-1219, p. 7 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006). Defendant has failed to present any new arguments, jurisprudence, or evidence to warrant reconsideration of the same issue or to suggest that our prior determination was patently erroneous or produced unjust results. Therefore, we decline to reconsider our prior ruling regarding this issue in defendant’s second appeal.

Accordingly, we find no merit in defendant’s pro se assignments of error numbers one, two, three and four.

Counseled Assignment of Error Number One and Pro Se Assignment of Error Number Five

In his sole counseled assignment of error, defendant challenges his sentences as being unconstitutionally excessive. Defendant contends that as a first-time offender, maximum sentences are not justified. Defendant further submits that he does not qualify as the worst type of offender and that the facts of this case are not among the most egregious to justify the imposition of maximum terms of imprisonment.

In his fifth pro se assignment of error, defendant argues that he received an illeT gaily excessive 15-year sentence on count four (molestation of a juvenile) because the State failed to establish that he had “control or supervision” over the juvenile. Defendant also contends that he is a first-time offender and not a “serial |10sexual offender” as found by the trial court, thus making the imposition of the maximum terms of imprisonment unconstitutionally excessive. Defendant further states that his sentences were not based on the instant convictions. Rather, defendant claims that he was punished for the alleged crime he committed against an unrelated juvenile whose testimony was permitted into evidence at his trial under La. C.E. art. 412.2. Defendant concludes that his sentence is grossly disproportionate to similar cases.

Illegal Sentence:

Defendant contends that the trial court imposed an illegally excessive 15-year sentence on the molestation of a juvenile conviction because the State did not prove he had “control or supervision” over L.L.P. The maximum sentence for a molestation of a juvenile conviction that does not involve “control or supervision” over the juvenile is 10 years; however, the statute provides for an increased penalty of imprisonment of not less than five (5) nor more than twenty (20) when the molestation was committed by an offender who had “control or supervision” over the juvenile. La. R.S. 14:81.2(C).

Although he alleges that his sentence is illegal, it appears that defendant is alleging that the evidence presented was, at best, sufficient to convict him of a charge of molestation that does not involve control or supervision over a juvenile. Thus, defendant again raises a sufficiency question that we have previously addressed in his original appeal, without presenting any new arguments or evidence warranting reconsideration of this issue. Because we have already determined on defendant’s original appeal that the State demonstrated that defendant had “control or supervision” over the victim, we will not reconsider our prior ruling. See Anderson, supra at 1086.

Excessive Sentence:

InDefendant contends that as a first-time offender, under the circumstances of this case, his sentences are unconstitutionally excessive. Defendant received the maximum available sentences on all counts. Specifically, on his two counts of sexual battery, defendant received two 10-year sentences; on his count of oral sexual battery, defendant received a 15-year sentence; and on his count of molestation of a juvenile, defendant received a 15-year sentence. See La. R.S. 14:43.1; 14:43.3; and 14:81.2. The trial court ordered these sentences to run consecutively for a total term of imprisonment of 50 years. The trial court also ordered these sentences to run consecutively with his 7-year sentence imposed in another case for his conviction of indecent behavior with a juvenile.

A sentence is unconstitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. La.C.Cr.P. art. 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing the sentence. However, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in La.C.Cr.P. art. 894.1 does not require a remand for resentencing. State v. Sanders, 98-855 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentences. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219. Accordingly, the issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. In reviewing a trial court’s sentencing discretion, three factors are considered: 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. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

The jurisprudence indicates that maximum terms of imprisonment are not excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile. In similar cases, criminal defendants have also received lengthy prison sentences. For instance, in State v. Thibodeaux, 2005-1187 (La.App. 3 Cir. 3/1/06), 924 So.2d 1205, writ denied, 2006-0700 (La.10/6/06), 938 So.2d 65, the defendant pleaded guilty to three counts of molestation of a juvenile, and was sentenced to three consecutive 10-year terms. On appeal, the court found no abuse of discretion. The Third Circuit noted that even though defendant was a first felony offender at the time of arrest, one victim related abuse over a five-year period and the other two victims were subjected to molestation over a six-month period. Thus, the court found that the defendant’s acts reflected a propensity to prey on those unable to protect themselves and that the case represented one of the worst crimes, particularly given defendant’s supervisory familial relationship to the victims. Id. at 1214.

In State v. Hubb, 97-304 (La.App. 5 Cir. 9/30/97), 700 So.2d 1103, we held that eight-year sentences were not unconstitutionally excessive for two defendants who had pled guilty to sexual battery and lived in the home with the 10- and 11-year-old female victims and their mother. The record reflected that both defendants had “french” kissed both of the children on several occasions, that one defendant had exposed his genitals to both children and forced one of the children to fondle him. The record reflected that the other defendant attempted to make one of the children fondle him, and showed the other child photographs of nude women. Id. at 1104-05. We noted that one of the defendants had no criminal history and the other had only misdemeanor offenses. Nevertheless, under these factual circumstances, we found that the sentences imposed were not an abuse of the trial judge’s discretion. Id. at 1106. See also State v. Penn, 633 So.2d 337 (La.App. 1 Cir.1993), (holding that the maximum terms of imprisonment for indecent behavior with a juvenile were not excessive.), State v. Morgan, 97-997 (La.App. 3 Cir. 2/4/98), 706 So.2d 1084, (affirming maximum terms of imprisonment for a defendant who pled guilty to two counts of sexual battery.), State v. Curtis, 2008-99 (La.App. 3 Cir. 6/5/08), 987 So.2d 294, (holding that a 25 year sentence furthers the deterrence of sexual predators and the protection of society, and is not simply a needless imposition of pain and suffering), and State v. Dykes, 38,092 (La.App. 2 Cir. 3/3/04), 867 So.2d 908, writ denied, 04-847 (La.9/24/04), 882 So.2d 1169, (affirming the maximum sentences of ten years at hard labor on each of three counts of sexual battery of a juvenile, even though the defendant was sixty-four years old and suffered from a disabling medical condition.)

In the present case, we find that the trial court did not abuse its broad discretion in imposing the maximum sentences on defendant’s convictions. With respect to the nature of defendant’s crimes, defendant used his position of | Utrust and authority to gain emotional control and establish his relationship with the victim, L.L.P. He began his contact with L.L.P. as her school bus driver when she was in second grade. He continued to build their relationship until L.L.P. was 14 years old, at which time defendant committed heinous crimes which involved the use of an innocent child to satisfy the sexual desires of an adult. Defendant proceeded in a sexual relationship with L.L.P., which increased in intimacy to the point where defendant was having frequent intercourse with L.L.P. for over one year. After considering the nature of defendant’s crimes, we cannot say that the trial court abused its sentencing discretion in imposing the maximum sentences.

Additionally, defendant’s nature and background also support the trial court’s exercise of its sentencing discretion in this case. While defendant claims to be a first-time felony offender, in fact he was convicted of indecent behavior with a juvenile involving S.A. in 2008 and was sentenced to 7 years imprisonment at.hard labor in Division “M” of the 24th Judicial District Court.

Although the trial judge failed to articulate reasons for the sentences imposed at defendant’s May 25, 2012 re-sentencing, the trial judge gave extensive reasons at defendant’s original sentencing. The record shows that the trial court listened to L.L.P.’s victim impact statement at defendant’s original sentencing and carefully considered all of the facts, evidence, and the sentencing guidelines prior to imposing maximum sentences. The trial judge found that defendant’s actions reflect a propensity to prey upon those who cannot protect themselves. Specifically, the trial court noted that defendant had met L.L.P. in his capacity as a bus driver when she was very young and when “she came of age in [his] mind [he began] grooming her.” The trial court referred to defendant as a “serial sexual predator” and opined that defendant “used a tailored methodology to groom [his] | ^victims.” As a result, the trial court concluded that defendant posed an unusual risk to public safety.

Accordingly, we find that the evidence supports defendant’s maximum sentences on all charges were justified in this case. Therefore, defendant’s counseled assignment of error number one and his pro se assignment of error number five are without merit.

Errors Patent Discussion

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were found.

CONCLUSION

For the foregoing reasons, we affirm defendant’s sentences for two counts of sexual battery, one count of oral sexual battery and one count of molestation of a juvenile.

AFFIRMED


source: Caselaw Access Project

author: JOHN J. MOLAISON, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Arthur C. LEWIS.
    No. 12-KA-902.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Ernest C. Chen, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney At Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Ad Hoc.
   JOHN J. MOLAISON, JR., Judge.

[ 2Pefendant, Arthur C. Lewis, appeals his conviction of possession of cocaine. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 23, 2012, Corporal Joseph Amadeo and Sergeant Roy Jacob of the Causeway Police Department stopped defendant, Arthur C. Lewis, after observing him commit numerous traffic violations. The officers attempted to handcuff defendant for safety reasons in order to question him; however, he physically and verbally resisted them and was arrested. A search of defendant’s person yielded a small clear plastic cellophane bag containing crack cocaine.

On May 11, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of cocaine in violation of LSA-R.S. 40:967C. Defendant was arraigned on June 14, 2012, and pled not guilty. On August 20, 2012, his motion to suppress evidence was denied. Also on that date, 13defendant proceeded to trial, and a six-person jury found him guilty as charged. On August 24, 2012, defendant was sentenced to five years imprisonment at hard labor. Also on that date, defendant filed a timely motion for appeal that was granted.

Immediately after sentencing, the State filed a multiple offender bill of information in open court alleging that defendant was a second felony offender, and defendant denied those allegations. On October 25, 2012, defendant stipulated that he was a second felony offender. The trial judge then sentenced him under the multiple bill statute to eight years imprisonment at hard labor without the benefit of probation or suspension of sentence.

LAW AND DISCUSSION

Defendant’s sole assignment of error on appeal is that the trial judge erred in denying his motion to suppress the evidence. He contends that he was illegally arrested when the police stopped him for a traffic violation and immediately handcuffed him. Defendant asserts that at this point the stop clearly exceeded its constitutional boundaries. He argues that because of the illegal arrest, the subsequent search incident to the arrest was illegal and the evidence retrieved was fruit of the poisonous tree and should be suppressed. Defendant further argues that there was no justification for going into his pocket if he was merely detained. He concludes that because the officers had no legal justification for detaining him, the evidence retrieved as a result should have been suppressed and, therefore, the ruling of the trial judge should be reversed and the conviction overturned.

I/The State responds that the seizure of evidence was lawful on the grounds that the law enforcement officers had the authority to arrest defendant for the traffic violations. Further, it contends that even if this were not the case, after defendant was properly stopped for traffic violations, the police were authorized to conduct a safety frisk on defendant and when defendant resisted, the officers had probable cause for defendant’s arrest. The State adds that the situation would have also warranted a search for a dangerous weapon, and that the use of handcuffs would not have been constitutionally impermissible in this case. It concludes that the trial judge properly denied defendant’s motion to suppress the evidence.

On August 20, 2012, a suppression hearing was held in this matter, and Corporal Joseph Amadeo of the Causeway Police Department was the sole witness. Corporal Amadeo testified that on April 23, 2012, at approximately 7:45 p.m., he was in the area of the west traffic circle of the Huey P. Long Bridge at Bridge City Avenue and Highway 90, speaking to his sergeant, when he and his sergeant observed a small motorcycle committing numerous traffic violations. He explained that the motorcycle did not appear to be “street legal,” and it had no headlights or taillights. Corporal Amadeo noticed the motorcycle was going the wrong way on a one-way street, was crossing the median, and was driving in an area that was a construction zone and was closed to traffic. The motorcycle passed again, committing the same violations, but then disappeared out of their sight. It was agreed that if the motorcycle returned to the area, they would make a stop to learn the individual’s intentions.

The motorcycle was observed again coming down Highway 90, traveling the wrong way, going across the median, and into a construction zone. Based on those observations, a traffic stop was initiated at the 1100 block of Highway 90. The | .^officers exited their police car and told defendant to stop and exit his bike, and defendant complied with those demands. Defendant was wearing a full hooded garment, like a sweatshirt, and a “full face mask.” He was told that he was not under arrest, but would be interviewed regarding his intentions. The officers attempted to place handcuffs on defendant at that point, and defendant began physically resisting those attempts. At some point, the officers handcuffed defendant. They put defendant on the hood of the police car to check for weapons or other possible items, but shortly thereafter, defendant resisted again; so, the search was stopped and continued later on.

Defendant verbally resisted the officers as well. He was screaming and yelling that he knew his rights, he was not going to jail, and he was not getting into the police car. A fairly large crowd of spectators started gathering near the area. The officers tried to put defendant into the police car; however, defendant physically resisted them using his elbows, legs, and shoulders. The officers had the rear door of the police car open, but defendant kicked it closed at least twice, saying he was not getting into the car. Defendant was brought to the ground for his safety because of his continued resistance. Eventually, Corporal Amadeo placed defendant under arrest and conducted a search incident to the arrest. After checking defendant’s pockets, Corporal Amadeo found a pack of cigarettes, a cigarette lighter, a cell phone, and a small clear packet of “what turned out to be drugs.”

On cross-examination at the suppression hearing, Corporal Amadeo explained that defendant was handcuffed for officer safety and for defendant’s own safety, noting that this was a known high crime area and that defendant was | (¡dressed in a full hood and a “full face mask.” He further explained that defendant’s hands were in his pockets prior to when he was handcuffed. Additionally, Corporal Amadeo testified that they searched defendant for weapons and additional contraband before putting him into the police car.

After hearing the testimony, the trial judge denied defendant’s motion to suppress the evidence.

At trial, additional facts were elicited. Corporal Amadeo testified at trial that defendant continued to place his hands into his pocket as they questioned him. He also testified that he initially observed a large bulge in defendant’s right front pants pocket, and since he did not know if that was a weapon, they patted defendant down to see if he was armed and removed the items that were in that pants pocket. The corporal explained that he was able to complete the search of defendant’s person following defendant’s arrest, during which he retrieved a small clear plastic cellophane bag containing crack cocaine from defendant’s right front pants pocket. It was stipulated that this substance was analyzed and confirmed to contain crack cocaine with a net weight of 1.39 grams.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703D. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Ayche, 07-753, p. 6 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, 1148, writs denied, 08-2291 (La.1/30/09), 999 So.2d 752 and 08-1115 (La.2/13/09), 999 So.2d 1140. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court 17owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. State v. Wells, 08-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580.

Although not required to do so, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing, in determining the correctness of the trial court’s pretrial ruling on a motion to suppress. State v. Leger, 05-0011, p. 10 (La.7/10/06), 936 So.2d 108, 122, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); Ayche, 07-753, at 5-6, 978 So.2d at 1148.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361, p. 4 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765. The exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. State v. Nicholas, 06-903, p. 6 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 687. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Leonard, 06-361 at 4, 945 So.2d at 765.

The first issue is whether the officers had reasonable suspicion to conduct a traffic stop.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. Leonard, 06-361 at 4, 945 So.2d at 766. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. Ayche, supra at 6-7, 978 So.2d at 1148. “Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Davis, 09-452, p. 5 (La.App. 5 Cir. 1/26/10), 31 So.3d 513, 516, writ denied, 10-2201 (La.10/21/11), 73 So.3d 373. Additionally, a violation of a traffic regulation provides reasonable suspicion to stop a vehicle. Id. Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. State v. Waters, 00-0356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056. The fact that an officer does not issue a traffic citation is irrelevant to the constitutionality of the stop. State v. Martin, 11-160, p. 12 (La.App. 5 Cir. 12/28/11), 83 So.3d 230, 238.

Police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Davis, 09-452 at 6, 31 So.3d at 517. Generally, the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred, and the standard is purely objective, without taking into consideration the subjective beliefs or expectations of the detaining officer. Id.‘Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.’ ” Id. (quoting Waters, supra).

|3In the instant case, the officers observed defendant committing various traffic violations, including riding without headlights or taillights, traveling the wrong way on a one-way street, crossing medians, and riding in a closed construction zone. As such, we find that the officers were justified in stopping defendant for the traffic violations.

The second issue is whether the officers were justified in handcuffing defendant, and whether those actions rose to the level of an arrest.

Inherent in the right of police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. State v. Morton, 08-164, p. 7 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657. There is no question that the use of handcuffs incrementally increases the degree of force that is used in detaining an individual. Morton, 08-164 at 7-8, 993 So.2d at 657. However, arrest-like features such as the use of drawn weapons and handcuffs may, but do not invariably, render the seizure a de facto arrest. Id.

Therefore, when the State seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm. Morton, 08-164 at 8, 993 So.2d at 657. Since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. Id. “[A]n officer’s handcuffing a suspect is a reasonable method of |inensuring officer safety.” State v. Jones, 11-8, p. 11 (La.App. 5 Cir. 11/15/11), 78 So.3d 274, 282, writ denied, 11-2781 (La.4/13/12), 85 So.3d 1246.

In the instant case, it does not appear that the officers had the intent to impose an extended restraint on defendant’s liberty, since they told defendant that he was not under arrest, but was being detained for questioning. Additionally, the stop occurred in a high crime area at approximately 7:45 p.m. Defendant was dressed in a suspicious manner, which included a “full face mask,” and he was putting his hands in his pocket. Corporal Amadeo testified that he did not know if defendant was armed, and Sergeant Roy Jacob testified at trial that defendant was a “pretty big fellow.” At some point, the officers noticed the large bulge in defendant’s front pants pocket. In light of the circumstances, we find that the officers were justified in handcuffing defendant as a safety precaution, and that those actions did not rise to the level of an arrest.

The third issue is whether the officers were justified in conducting a pat-down search of defendant for weapons.

An officer conducting a traffic stop may perform a pat-down search of a driver and passengers upon reasonable suspicion that they may be armed and dangerous. State v. Brovm, 09-209, p. 5 (La.App. 5 Cir. 12/29/09), 30 So.3d 907, 911. Such a search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Id. (quotation omitted). This limited protective search is justified under circumstances where a reasonably prudent person in those circumstances would be warranted in the belief that his safety or the safety of others was in danger. Brown, 09-209 at 5-6, 30 So.3d at 911. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticular-ized | ^suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Brown, 09-209 at 6, 30 So.3d at 911. If a law enforcement officer has legally stopped a person pursuant to LSA-C.Cr.P. art. 215.1A, the officer may frisk the outer clothing of the person if the officer reasonably suspects that he is in danger. LSA-C.Cr.P. art. 215.1B. Additionally, if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. Id.

Louisiana jurisprudence has recognized that there is potential danger for an officer even during a routine traffic stop. State v. Brown, 09-209, p. 6 (La. App. 5 Cir. 12/29/09), 30 So.3d 907, 911 (citing State v. Landry, 588 So.2d 345, 347 (La.1991)). A police officer who stops a vehicle for a routine traffic offense may be exposed, according to the circumstances, to a significant risk of attack, and concern for the safety of the officer may be a legitimate and weighty justification for reasonable intrusions into the privacy interests of the occupants of the stopped vehicle. Landry, 588 So.2d at 347.

In the instant case, we find that the officers were justified in conducting a pat-down weapons search of defendant for weapons for the same reasons that we find the officers were justified in their decision to handcuff defendant.

The next issue is whether there was probable cause to arrest defendant for resisting the officers when he was being lawfully detained.

Under LSA-R.S. 14:108A, it is a criminal offense for a person being lawfully detained by an officer to resist that detention. LSA-R.S. 14:108.2A defines the crime of resisting a police officer with force or violence.

In State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.3d 826, this Court found that the warrantless search of defendant and seizure of narcotics, incident to a lawful arrest of the defendant for resisting an officer, was legal. Also, in State v. Jenkins, 10-1471, 2011 WL 1103319, at *6 (La.App. 1 Cir. 3/25/11) (unpublished opinion) , writ denied, 11-0857 (La.11/4/11), 75 So.3d 921, the First Circuit found that the detective had reasonable suspicion to make an investigatory stop, and when the defendant refused to comply with the detective’s command to stop, thwarting his attempt to investigate further, the defendant committed the criminal offense of resisting arrest.

In the' instant case, we find that there was probable cause to arrest defendant for resisting the officers when he was being lawfully detained. Evidence was presented that defendant physically resisted the officers attempts to handcuff him and pat him down. He resisted with his shoulders, elbows, legs, and other parts of his body. Also, trial testimony indicated that defendant pushed back during the pat-down and hit Sergeant Jacobs in his chest.

The final issue is whether the officers were justified in searching defendant’s person and retrieving the cocaine from his pocket.

A search incident to an arrest is an exception to the warrant requirement. This exception holds that, once a lawful arrest has been made, a warrantless search of the arrestee’s person and of the area within his immediate control is permissible in order to remove any weapons from his person and to prevent evidence from being destroyed. State v. Wilford, 11-256, pp. 8-9 (La.App. 5 Cir. 12/13/11), 81 So.3d 868, 875.

113In the instant case, the testimony presented at the suppression hearing did not set forth a clear chronological sequence of when the marijuana and cocaine were discovered; however, the trial testimony indicated that the cocaine was found after defendant was arrested. In any event, as was discussed previously, we find that the officers had probable cause to arrest defendant for resisting the lawful detention. We further find that the search of defendant’s person incident to the arrest was justified as an exception to the warrant requirement and, therefore, the seizure of the cocaine from his pocket was lawful. “It is well established searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search.” “Naturally, the fruits of the search cannot be necessary to support the probable cause to arrest.... If an arrest is justified before the search, it is not unreasonable for the search to be made before instead of after the arrest.” State v. Sherman, 05-0779, pp. 8-9 (La.4/4/06), 931 So.2d 286, 292.

This assignment of error is without merit.

ERRORS PATENT REVIEW

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

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

      . Defendant filed several pre-trial motions; however, the record does not include rulings on all of them. Nevertheless, when a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived. See State v. Wise, 05-221, p. 7 (La.App. 5 Cir. 10/6/05), 916 So.2d 290, 293.

      . Defendant was also charged with various traffic-related offenses and was found guilty by the judge after a bench trial of having no headlamps and no brake lights, and driving the wrong way against oncoming traffic. Additionally, he was found guilty of resisting an officer and possession of marijuana. However, those matters are not part of this appeal.

      .The motion for appeal seeks relief from the verdict rendered on April 20, 2012, and the sentence imposed on April 24, 2012. It appears that this is a mistake. The verdict in this case was rendered on August 20, 2012, and the sentence was imposed on August 24, 2012.

      . At the time of the suppression hearing, Offl-cer Amadeo was ranked as a "Corporal.”

      . The patrol unit was equipped with a video camera that was able to record the audio. However, it appears that the officers and defendant were outside of the camera’s view. It does not appear that the tape was introduced into evidence, and it is not included as an exhibit to this record.

      . Defendant was found guilty by the trial judge of lack of headlamps, lack of brake lights, and driving the wrong way against oncoming traffic.

      . At trial, testimony was presented regarding the officer's knowledge of drugs in the area. Guns and drugs frequently go hand-in-hand. State v. Warren, 05-2248, p. 18 (La.2/22/07), 949 So.2d 1215, 1229.

      . At trial, it was established that Corporal Amadeo had been with the Causeway Police Department for about four and one-half years and Sergeant Jacob had been with the department for almost twenty years.

      . LSA-R.S. 14:108A provides that resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of propertyf.]

      .It is noted that this case is published on the First Circuit’s website and, therefore, may be cited as authority despite the fact it is not designated for publication. See State in the Interest of S.L., 11-883, p. 2 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 827 n. 2; LSA-C.C.P. art. 2168.

      . Defendant was also found guilty by the trial judge of resisting an officer. The arrest report reflects the following charges: resisting an officer (in violation of LSA-R.S. 14:108.2), battery of a police officer, possession of marijuana, and possession of cocaine.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Willie J. ELLISON, Jr.
    No. 12-KA-910.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Ad hoc.
   JUDE G. GRAVOIS, Judge.

| ¡¿Defendant, Willie J. Ellison, Jr., has appealed his convictions and sentences for possession with intent to distribute heroin and possession with intent to distribute cocaine. For the reasons that follow, we affirm defendant’s convictions, vacate the sentences imposed, and remand for resen-tencing, for correction of a minute entry and defendant’s commitment, and to provide defendant with the required post-conviction relief advisal.

PROCEDURAL HISTORY

On October 31, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (Count 1), and possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (Count 2). Defendant filed a motion to Rquash, which was denied after a hearing conducted on June 23, 2010. Defendant’s writ application to this Court challenging the trial judge’s denial of his motion to quash was also denied. State v. Ellison, 10-K-551 (La.App. 5 Cir. 6/28/10) (unpublished writ disposition).

Defendant’s motion to suppress evidence and statement was denied after a hearing conducted on August 4, 2010.

On August 23, 2010, defendant pled guilty as charged. On September 28, 2010, defendant filed a motion to withdraw his guilty pleas, which was denied that same day. Afterwards, the trial judge sentenced defendant to 30 years imprisonment on Count 1 and 20 years imprisonment on Count 2, with the sentences to run consecutively to each other and concurrently with the sentence imposed in case No. 07-6290.

Also on September 28, 2010, the State filed a multiple offender bill of information against defendant, alleging him to be a fourth felony offender. Defendant denied those allegations. On October 29, 2010, defendant filed an untimely motion to reconsider sentence, and an untimely motion for appeal that was granted. Defendant’s appeal was lodged in this Court bearing case No. ll-KA-377.

On October 19, 2011, defendant filed in this Court an “Unopposed Motion to Remand Instant Case for Expedited Consideration as an Out of Time Appeal.” On October 28, 2011, this Court ordered that case No. ll-KA-377 be remanded to the district court for consideration as an out-of-time appeal. Defendant filed a motion for an out-of-time appeal on November 4, 2011 that was granted on November 7, 2011. The instant appeal followed.

FACTS

The following facts were obtained from the transcript of the hearing held on defendant’s motion to suppress. Deputy Christopher Ives testified that an |4anonymous person called 9-1-1 and reported seeing a black male sitting in a black vehicle at a bank, whom the caller said that he recognized as the same person who was pictured in the Times-Picayune newspaper that morning as “wanted” in New Orleans. When Deputy Ives arrived at the bank, he saw the black male, later identified as defendant. Deputy Ives exited his marked unit and started walking towards the black vehicle. As he did so, defendant exited the passenger side of the vehicle and started walking very fast, almost running, toward the front door of the bank.

Deputy Ives and another deputy followed defendant into the bank. Defendant continued walking to the rear of the bank’s lobby. Defendant complied when asked by the deputies to place his hands on his head, but then a minor struggle ensued, after which defendant was arrested.

The deputies ran defendant’s name through the National Crime Information Center (“NCIC”), which confirmed that defendant was “wanted” in New Orleans. They escorted defendant out to the police unit, patted him down for weapons, and searched him incidental to the arrest. During the search, a large quantity of heroin, cocaine, and marijuana was found in defendant’s pocket. Afterwards, defendant said, “I’m glad I’m caught. I’m glad this is over. I’m tired of running.” Defendant made these statements voluntarily without questioning by the deputies.

ASSIGNMENT OF ERROR NO. ONE

In his first assignment of error, defendant argues that the trial judge erred by denying his motion to withdraw his guilty pleas. He contends that his guilty pleas should be vacated because the sentences imposed were inconsistent with his plea agreement. He claims that his plea agreement indicated he would receive two concurrent 15-year sentences, but that the trial judge instead sentenced him to a 30-year sentence on Count 1 and a 20-year sentence on Count 2, to run consecutively. IsThe State responds that the trial judge did not err in denying defendant’s motion to withdraw his guilty pleas since the guilty pleas were not constitutionally deficient. The State further explains that defendant was given the harsher sentences because he failed to appear for sentencing, which was a condition that he agreed to in the plea agreement.

The record reflects that on August 23, 2010, the prosecutor said that it was her understanding that defendant was going to enter guilty pleas that day and sentencing would be set for September 22, 2010. She informed the court that defendant was a fourth felony offender, but that she had offered him a double bill and 15 years if he pled guilty to “everything.” However, the prosecutor explained that she wanted to make it clear to the court and to the defense that if defendant did not turn himself in at 9:00 a.m. on September 22, his guilty pleas would stand, but he would be multiple billed as a fourth felony offender and would be facing a sentence of 50 years to life imprisonment. She also stated that defendant would be placed in home incarceration during this period and that if defendant violated the terms of his home incarceration, he would be multiple billed and would be facing a sentence of 50 years to life.

Defense counsel then said that he spoke to defendant regarding the terms and conditions of his guilty pleas and that they had memorialized them in a Boykin form. Defendant then pled guilty pursuant to the Boykin form tendered to the court. He was sworn in, after which the trial judge reviewed his rights, and he waived them. The trial judge informed defendant of the minimum and maximum sentences he could receive on both counts. The judge then stated, “if you do not return to this court on September 22 at nine o’clock for formal sentencing, ... this deal will be off the table and [the State] will be filing a multiple bill against you |6that will allege that you are a fourth offender which would subject you to 50 years to life in prison. Is that your understanding, sir?” Defendant responded, ‘Tes, sir.” Defendant confirmed that he had not been forced, threatened, or coerced into entering his pleas.

The trial judge then told defendant to report immediately to the home incarceration office. The prosecutor then stated, “Judge, just for the record, as I said earlier, also, if he violates any of those terms of home incarceration as well, he could be sentenced to 50 to life. I just want to make sure he understands.” The trial judge then stated, “You understand that, Mr. Ellison?” Defendant responded, ‘Tes, sir. Yes, ma’am.” A review of the waiver of rights form shows that defendant waived his rights and acknowledged the above terms and conditions of his guilty pleas.

Despite the warnings of the prosecutor and the trial judge, defendant did not comply with the terms of the plea agreement. He did not report to the home incarceration office as ordered, nor did he appear for sentencing on September 22, 2010. On September 28, 2010, defendant filed a motion to withdraw his guilty pleas. In that motion, defendant said that he had previously entered the guilty pleas believing it was in his best interest; however, he had since determined that he would prefer a jury trial. On that same date, at the hearing on the motion, the prosecutor argued that there was no basis for defendant to withdraw his guilty pleas. Defense counsel indicated that defendant had not appeared on the designated sentencing date because defendant’s toddler daughter had undergone surgery and had been released from the hospital on that date, and therefore urged the trial judge to grant the motion and set the matter for trial.

The trial judge responded that he saw no connection between defendant’s daughter’s hospitalization and defendant’s guilty pleas. The trial judge found that | defendant had made knowing, intelligent, free, and voluntary pleas of guilty, and that defendant filed the motion to withdraw guilty pleas because he failed to report to home incarceration and for sentencing. The trial judge stated that the reasons stated by defendant were not a proper basis for withdrawing the guilty pleas, and therefore denied the motion and noted defense counsel’s objections.

The trial judge then sentenced defendant as follows: on Count 1 to 30 years in the Department of Corrections with the first five years to be served without the benefit of parole, probation, or suspension of sentence; on Count 2 to 20 years in the Department of Corrections with the first two years to be served without the benefit of parole, probation, or suspension of sentence; and with both sentences to run consecutively to each other. The trial judge noted that the State had filed a multiple offender bill of information against defendant alleging him to be a fourth felony offender. Defendant denied the allegations of the multiple bill and it was set for hearing. However, the multiple bill was subsequently withdrawn by the State.

Analysis and discussion

In State v. Stewart, 03-976 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, this Court held that the trial judge did not err in imposing a sentence not in accordance with the original plea agreement. In Stewart, as part of the plea agreement, the defendant agreed to a sentence of five years imprisonment at hard labor on each count, to run concurrently, and the State agreed to waive its right to file a multiple offender bill of information against the defendant. After pleading guilty, the defendant requested a delay in sentencing so he could get his affairs in order. The trial judge agreed to defer sentencing and specifically informed the defendant that the agreed-upon sentence was contingent upon him appearing for the scheduled sentencing hearing. Id. at 1273-74. The trial judge informed the defendant that if |Rhe failed to appear, he “could receive the maximum sentence and the State may, in fact, recharge you, charge you differently in this case, do you understand that?” The State then informed the court that it reserved its right to file a multiple bill, which would enhance the defendant’s sentence, and the defendant indicated that he understood the consequences of failing to appear. Id. at 1276.

Despite the trial judge’s warnings, the defendant failed to appear for sentencing on the scheduled date. Thereafter, the trial judge imposed a greater sentence than was indicated in the plea agreement. Additionally, the State filed a multiple bill against the defendant, and he received an enhanced sentence on one of the counts. The defendant then filed a motion to withdraw his guilty plea, which was denied by the trial court. Id. On appeal, this Court held that the trial court did not err in denying the defendant’s motion to withdraw his guilty plea, finding that the defendant had been informed of his rights and the consequences of his plea, and that the plea had been entered into knowingly and voluntarily. This Court further determined that the defendant had not been misled, and there was no indication that his guilty plea was in any way coerced.

Additionally, this Court stated that the only conditional part of the agreement was the defendant’s sentence, which depended upon the defendant appearing on the designated date for sentencing. This Court noted that the defendant failed to appear for sentencing even though he had been warned of the consequences, and therefore, “he should not now be allowed to withdraw his guilty plea.” Id. at 1277. This Court found that the plea agreement had not been breached by the State or trial judge; rather, it was the defendant’s actions that dictated the sentence imposed. Further, this Court held that the trial court did not err in failing to sentence the defendant in accordance with the original plea agreement, noting that the defendant had acknowledged that there were two Inpossible sentences depending on whether he appeared for sentencing. This Court stated that the defendant chose not to appear; therefore, he received the greater sentence. Id.

Conversely, in State v. Ebright, 04-972 (La.App. 5 Cir. 1/11/05), 894 So.2d 359, this Court vacated the defendant’s sentence and remanded the case to the trial court for imposition of the sentence agreed upon in the plea agreement or for the defendant to have an opportunity to withdraw her guilty plea. Id. at 361.

In Ebright, the defendant pled guilty and during the plea colloquy, the trial court advised the defendant that she would be sentenced to two years. Sentencing was set for a later date. After the plea was accepted, the trial judge warned the defendant that “her sentence would grow” if she failed to appear for sentencing. The defendant failed to appear on the scheduled date for sentencing and was thereafter sentenced to 12 years imprisonment at hard labor. Id. at 360. On appeal, this Court found that the trial court erred in imposing the 12-year sentence after the defendant had been promised a 2-year sentence as inducement for her plea. This Court distinguished Ebright from Stewart, supra, finding that no clear and express advice was given to the defendant in Ebright regarding the length of time her sentence would increase due to her failure to appear. Id. at 361.

More recently, in State v. Roche, 09-684 (La.App. 5 Cir. 3/23/10), 39 So.3d 706, writ denied, 10-930 (La.11/19/10), 49 So.3d 396, this Court found that the trial court did not err in imposing a maximum sentence due to the defendant’s failure to appear for sentencing. In Roche, after accepting the defendant’s plea, the trial court advised him that his sentence would be ten years, with the first two years to be without the benefit of parole, probation, or suspension of sentence. Sentencing was set for a later date. The trial court specifically told the defendant, “If you don’t show up, or if you show up late, then, I can sentence you as freely |inas I want, okay?” The trial court expressly stated that the defendant’s sentence would not be ten years with a boot camp recommendation, but rather “[i]t will be more like, what you are looking at, without a bill, you’re looking at 65 years. The State can multiple bill you, which would increase that substantially.” The defendant stated that he understood. The State also clarified that its agreement not to file a multiple bill against the defendant was conditioned on the defendant’s appearance for sentencing. Id., 39 So.3d at 707-08.

Despite the trial court’s warning, the defendant failed to appear for sentencing on the scheduled date. When the defendant subsequently appeared, the trial court sentenced him to 30 years imprisonment, with the first 2 years to be without the benefit of parole, probation or suspension of sentence. The trial court explained that the sentence was based on a review of the defendant’s criminal history and “the menace of this case,” in that the defendant had failed to report. Id., 39 So.3d at 708.

On appeal, this Court found that the defendant’s sentence was imposed in conformity with a plea agreement that was set forth in the record at the time of the plea, noting that the defendant had been warned by the trial court that if he failed to appear, he would not receive the 10-year sentence with a boot camp recommendation, but rather would face a possible maximum sentence. Defendant failed to appear for sentencing, and as a result, he received the maximum 30-year sentence. This Court found that the defendant was clearly informed of the two possible sentences when he entered his plea. Id., 39 So.3d at 709.

In the present case, as part of the plea agreement, defendant was to receive a 15-year prison sentence as a second felony offender. In the plea colloquy on August 23, 2010, the trial judge asked defendant if he understood the nature of the charges and whether he had had the opportunity to review the waiver of | n constitutional rights form. The trial judge then advised defendant of his Boykin rights, and defendant stated that he understood that he was waiving those rights. The trial judge then informed defendant that he would be sentenced to 15 years in the Department of Corrections as a second felony offender. Sentencing was scheduled for September 22. The judge stated, “if you do not return to this court on September 22 at nine o’clock for formal sentencing, ... this deal will be off the table and [the State] will be filing a multiple bill against you that will allege that you are a fourth offender which would subject you to 50 years to life in prison. Is that your understanding, sir?” (Emphasis added.) Defendant responded, “Yes, sir.” The judge then asked defendant if he had been forced, threatened or coerced into entering these pleas of guilty. Defendant responded, “[n]o.” Defendant was instructed to report immediately to the home incarceration office. The prosecutor then stated, “Judge, just for the record, as I said earlier, also, if he violates any of those terms of home incarceration as well, he could be sentenced to 50 to life. I just want to make sure he understands.” The trial judge then stated, “You understand that, Mr. Ellison?” Defendant responded, “Yes, sir. Yes, ma’am.”

Defendant, the defense attorney, and the trial judge also signed an acknowledgement and waiver of constitutional rights-guilty plea form, in which the terms of the plea agreement were memorialized. The form stated:

I understand that my sentence in this case will be: 15 years (sic) Department of Corrections as a double bill offender. I will surrender myself at 9 a.m. on September 22, 2010. I understand that until that date I will be monitored on home incarceration. If I violate home incarceration or fail to turn myself in then the plea deal which I have entered will be void and I will face sentencing of 50 years to life as a quadruple offender.

Defendant failed to appear for sentencing on September 22, 2010. Thereafter, on September 28, 2010, defendant filed a motion to withdraw his guilty | ^pleas. Defendant argued that his infant daughter had undergone surgery and had just been released from the hospital. In response, the trial judge stated:

Counsel, I have no idea what the fact that his daughter was hospitalized had to do with anything with regard to him tendering a plea of guilty. The Court believed that he made a knowing, intelligent, free and voluntary act of tendering that plea of guilty. I know what the problem is now for Mr. Ellison. Mr. Ellison was told that he was to come back to this court and he was supposed to report to home incarceration. That’s not a basis in this Court’s mind for withdrawal of his guilty plea in either of these matters, so the Court is going to deny your motions and the court will note your objections to my ruling on these matters.

The trial judge then sentenced defendant to 30 years imprisonment on Count 1, the first 5 years of which to be served without the benefit of probation, parole or suspension of sentence, and to 20 years imprisonment on Count 2, the first 2 years of which to be served without the benefit of probation, parole or suspension of sentence. The sentences were imposed to run consecutively. On that same date, the State filed a multiple offender bill of information against defendant, which was subsequently withdrawn.

In State v. Lewis, 421 So.2d 224 (La.1982), the Louisiana Supreme Court held that a trial court may permit the withdrawal of a guilty plea after sentencing if the court finds that the guilty plea was not entered freely and voluntarily, or if there was an inadequate colloquy advising the defendant of the rights he was waiving by pleading guilty and therefore was constitutionally infirm. Courts have noted that there is “no absolute right to withdraw a previously entered plea of guilty.” State v. Pichon, 96-0886 (La.App. 4 Cir. 11/20/96), 684 So.2d 501, 502. The withdrawal of a guilty plea is within the discretion of the trial court and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569, 571 (La.1981).

11sFor a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In reviewing whether the trial court abused its discretion in denying a defendant’s motion to withdraw his plea, courts have looked to the guilty plea colloquy to determine whether the defendant was advised of the consequences of his plea and whether he voluntarily and intelligently waived his rights. State v. Young, 11-0046 (La.App. 4 Cir. 8/17/11), 71 So.3d 565, 571.

Here the plea colloquy shows that defendant was clearly informed of his rights, understood those rights, and knowingly waived those rights. Thus, the trial court did not abuse its discretion in denying defendant’s motion to withdraw his guilty pleas. However, the transcript indicates that defendant was informed that his failure to report on the assigned date for sentencing and his failure to comply with the terms of home incarceration would result in the State filing a multiple offender bill of information against him alleging him to be a fourth felony offender, and that he could be sentenced to 50 years or more as a result of the multiple bill.

Similar to the defendants in Stewart and Roche, defendant in the present case was advised during the plea colloquy that his failure to appear for sentencing would result in a more severe sentence. However, unlike the defendants in Stewart and Roche, defendant in this case was not sentenced in accordance with the warning that he was given for failing to appear for sentencing. Although the transcript indicates that defendant was informed that he could receive a 50-year sentence if he failed to appear for sentencing, he was informed that the possible 50-year sentence would be the result of the State’s filing a multiple offender bill of | ^information against him alleging him to be a fourth felony offender. While the record indicates that the State did file such a multiple bill, the bill was later withdrawn and defendant was not sentenced as a result of the multiple bill.

For the foregoing reasons, we find that the trial court did not err in denying defendant’s motion to withdraw his guilty pleas; however, the trial court erred in failing to sentence defendant in conformity with the plea agreement. Accordingly, the sentences imposed on defendant are hereby vacated and the matter is remanded for proceedings consistent with this opinion.

ASSIGNMENT OF ERROR NO. TWO

This above finding in defendant’s first assignment of error pretermits a discussion of defendant’s second assignment of error regarding the imposition of consecutive sentences.

ASSIGNMENT OF ERROR NO. THREE

In this assignment of error, defendant argues that the trial judge erred by denying his motion to quash the bill of information. He contends that the State did not bring him to trial within the two-year prescriptive period set forth in La. C.Cr.P. art. 578(A)(2) and that the time period was not interrupted under La. C.Cr.P. art. 579(A)(3) since he did not have actual notice of the trial date.

The State responds that defendant previously filed a writ application with this Court regarding the trial judge’s denial of the motion to quash and that this Court denied the writ, finding that defendant had actual notice of his trial date and failed to appear, and therefore, the trial judge properly denied the motion to quash. The State asserts that defendant has faded to demonstrate a basis for reconsideration of this issue.

It is well settled that a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584, 586 (La.1976). However, a defendant may be allowed appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Reed, 10-527 (La.App. 5 Cir. 2/15/11), 61 So.3d 74, 77, writ denied, 11-509 (La.9/30/11), 71 So.3d 280.

In the instant case, the record does not reflect that defendant tendered his guilty pleas pursuant to Crosby, or that he reserved his right to appeal any pre-trial rulings under Crosby when he pled guilty. Accordingly, defendant waived his right to appellate review of the denial of his motion to quash. State v. Turner, 10-995 (La.App. 5 Cir. 9/27/11), 75 So.3d 491, 493, writ denied, 11-2379 (La.4/27/12), 86 So.3d 625.

This assignment of error is without merit.

ERRORS PATENT REVIEW AND DISCUSSION

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

Lack of Arraignment

The record does not reflect that defendant was arraigned on the original charges. La.C.Cr.P. art. 555 provides that any irregularity in the arraignment is waived if the defendant pleads to the indictment without objecting thereto. It further provides that a failure to arraign the defendant or the fact that he did not plead is waived if the defendant enters upon the trial 'without objecting thereto, and it shall be considered as if he had pleaded not guilty. In the instant case, we find that the failure to arraign defendant on the original charges represented an irregularity that was waived upon defendant’s entry of guilty pleas without objection. See State v. Clofer, 11-494 (La.App. 5 Cir. 11/29/11), 80 So.3d 639, 643. Thus, no corrective action is necessary.

_yVo Post-Conviction Relief Advisal

The transcript does not reflect that the trial judge advised defendant of the two-year prescriptive period for filing an application for post-conviction relief under La.C.Cr.P. art. 930.8. However, the commitment reflects that defendant was properly advised of this time period. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). However since we have vacated defendant’s sentences, upon resentencing on remand, the trial court is ordered to advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

Commitment/Transcript Inconsistency

The minute entry dated August 23, 2010 and the commitment dated September 28, 2010 indicate that defendant was found guilty by a judge on Counts 1 and 2. However, the transcript shows that defendant pled guilty to Counts 1 and 2. The transcript prevails. Lynch, supra. Accordingly, on remand the trial court is ordered to correct the minute entry and defendant’s commitment to conform to the transcript to reflect that defendant pled guilty to Counts 1 and 2. See State v. Major, 09-370 (La.App. 5 Cir. 11/24/09), 26 So.3d 289, 296, writ denied, 09-2802 (La.6/18/10), 38 So.3d 320.

Motion to Reconsider Sentence/No Ruling

Defendant was sentenced on September 28, 2010 and filed a motion to reconsider sentence on October 29, 2010. Under La. C.Cr.P. art. 881.1, the motion was untimely since it was filed more than 30 days after sentencing, and the trial judge did not set a longer period of time for the filing of the motion.

[ ^Nevertheless, the motion was set for a hearing on December 15, 2010. On that date, defendant’s attorney waived defendant’s presence, and the hearing on the motion was ordered continued and re-set for January 19, 2011, at the request of defendant’s attorney. On January 19, 2011, defendant’s attorney waived defendant’s presence, and the hearing on the motion was ordered continued and re-set for February 2, 2011, again at the request of the defense attorney. On February 2, 2011, defendant and his attorney were not present, and the hearing on the motion was ordered continued and re-set for March 23, 2011, again at the request of the defense attorney. On March 23, 2011, defendant and his attorney were not present, and the hearing on the motion was ordered continued without date.

The record does not reflect that the motion to reconsider sentence was ever ruled upon. La.C.Cr.P. art. 916 provides that the jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence. La. C.Cr.P. art. 916(3). [Emphasis added.] (See also State v. Tillman, 94-1093 (La.App. 4 Cir. 6/8/94), 638 So.2d 475, 476, where the Fourth Circuit found that the trial court had no authority to reconsider the defendant’s sentence, since the defendant’s motion to reconsider sentence was not timely filed under La.C.Cr.P. art. 881.1A(1), and no longer period to file the motion was set by the trial court.) In the instant case, we find that it is unnecessary to remand this matter for a ruling on the motion to reconsider sentence, since the trial court has no jurisdiction to take any action, as defendant did not properly file his motion to reconsider sentence in a timely fashion. Further, since we have herein vacated defendant’s sentences, this issue is now moot.

^CONCLUSION

For the foregoing reasons, defendant’s convictions are affirmed. The sentences imposed on defendant are vacated. This matter is remanded to the trial court for proceedings consistent with this opinion. On remand, the trial court is ordered to correct the minute entry and defendant’s commitment to conform with the transcript as noted above and to provide defendant with the required post-conviction relief ad-visal.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED

      . Defendant also pled guilty in case No. 07-6290 to the misdemeanor offense of possession of marijuana, first offense. The record does not indicate that defendant seeks review of that conviction.

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


text:
    STATE of Louisiana v. Robert C. CARTER.
    No. 12-KA-932.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, J. Brandon Kinnett, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Nisha Sandhu, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Judge Ad hoc.
   JUDE G. GRAVOIS, Judge.

li>This is defendant’s second appeal. Previously, this Court conditionally affirmed defendant’s conviction and sentence and remanded the matter for an evidentia-ry hearing to determine whether defendant knowingly and intelligently waived his right to a trial by jury. State v. Carter, 11-758 (La.App. 5 Cir. 5/31/12), 96 So.3d 1283, 1294.

On August 8, 2012, the trial court conducted the evidentiary hearing and found that defendant had knowingly and intelligently waived his right to a trial by jury. Defendant timely appealed this ruling. On appeal, defendant argues that the trial court erred in determining that the evidence adduced at the hearing was sufficient to determine that he made a knowing and intelligent waiver of his right to a trial by jury. Finding no merit to his arguments, we affirm defendant’s conviction and sentence.

I ¡¡ASSIGNMENT OF ERROR

Validity of waiver of right to trial by jury

In his sole assignment of error, defendant argues that the trial court erred in finding that the waiver of his right to a trial by jury was knowingly and intelligently made.

Although the right to a trial by jury may be waived in non-capital cases, the right must be “knowingly and intelligently” waived. La.C.Cr.P. art. 780(A); La. Const. Art. I, § 17(A). Waiver of this right is never presumed. State v. Goodwin, 05-51 (La.App. 5 Cir. 6/28/05), 908 So.2d 56, 59 (citation omitted).

The preferred method for the district court to advise the defendant of the right to a trial by jury is in open court before obtaining a waiver; however, such practice is not statutorily required. In addition, although preferred, it is not necessary for the defendant to waive the right to a trial by jury personally. State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, 503, writ denied, 05-1450 (La.1/13/06), 920 So.2d 235 (citations omitted), State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321, 322 (per curiam); State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Muller, 351 So.2d 143, 146-47 (La.1977); State v. Howard, 10-869 (La.App. 5 Cir. 5/24/11), 66 So.3d 1160, 1165, writ denied sub nom., State ex rel. Howard v. State, 11-1468 (La.4/9/12), 85 So.3d 135. Defense counsel may waive the defendant’s right to a trial by jury on his behalf as long as the defendant’s decision to do so was made knowingly and intelligently. Id.

On remand, at the evidentiary hearing conducted on August 8, 2012, the trial court heard testimony from defendant’s trial counsel, Gregory Bachaud. After defendant waived the attorney-client privilege, Mr. Bachaud testified regarding his representation of defendant, in pertinent part, as follows:

INSTATE]: ... [D]id you discuss with [defendant] his rights as they relate to a judge trial or a jury trial before this court, this case?
[BACHAUD]: Yes, yes.
[STATE]: Did you explain to him that he had the right and it was his decision to make the choice between a judge or jury trial?
[BACHAUD]: Yes.
[STATE]: And did he elect to go forward with a judge trial in this matter or a bench trial in this matter?
[BACHAUD]: Yes.
[STATE]: Were you satisfied after you explained [defendant’s] right to him that he understood his rights in this regard?
[BACHAUD]: Yes, I believe so.
[STATE]: Is it true that you discussed with this Court that you believed that it was a sound strategic decision and it was a decision that you discussed with [defendant] to go forward with a judge trial in this matter?
[BACHAUD]: Yes, well, Mr. Paciera was the district attorney at the time and I believe it was in February, anyway I can’t remember the exact day that I informed the Court that [defendant] and I had discussed it and that we were going to waive a jury trial, [defendant] was going to waive a jury trial and elect to have a judge trial.
[STATE]: If ... [defendant] had changed his mind with regard to a judge trial and wanted to go forward instead with a jury trial would you have indicated that to the Court?
[BACHAUD]: Yes.
[STATE]: And is there any indication that you did so ... ?
[BACHAUD]: No.
THE COURT: Now, you’re not implying that you would ever encourage a client of yours to waive his right to a | .jury without you being firm in your mind that he agrees to that strategy?
[BACHAUD]: That’s correct, and that’s what I was saying was I took extra effort to make sure that, you know, I explained things in general to my clients, but particularly here I did and beyond that once it hit his ears I don’t know what he put together after that.
THE COURT: But you had more than one discussion with him about what would be the best way to approach ... this case or these cases and he agreed with your advice that the best strategy, let’s go with a bench, not a jury.
[BACHAUD]: Yes.
THE COURT: ... [Y]ou are certain in your mind that he understood up until the time the trial commenced ... he could have changed his mind and asked for a jury, is that correct?
[BACHAUD]: That’s correct.

On cross-examination, Mr. Bachaud testified, in pertinent part, as follows:

[DEFENSE]: ... Prior to your discussion with [defendant] regarding the waiver of jury had you ever had an occasion in which you had an issue communicating effectively with each other?
[BACHAUD]: No.
[DEFENSE]: Did you address the issue of if you were to elect a jury trial the amount of votes that would be necessary for a conviction versus going with a judge trial, whereas the judge would be the sole trier of fact?
[BACHAUD]: Yes.
[DEFENSE]: And to your knowledge ... was there anything to memorialize the defendant’s understanding that he knew what he was doing when he elected to waive the jury, such as [a] written document or a court transcript?
[BACHAUD]: Um, not, not that I know. I mean, there’s a minute entry that I requested to waive the jury trial on behalf of [defendant].

IfiAt the conclusion of the evidentiary hearing, the trial court ruled as follows:

The Court finds based on the evidence and in consideration of the law that this is one of those instances where we did not have, that is the Bench did not have[,] the luxury of actually conducting an open dialog with the defendant himself.
However, as I understand the law in this State absent that a valid waiver could still have occurred depending on all of the other evidence supporting the record’s indication that the defendant through counsel sought to waive a jury trial.
In this case we have Mr. Bachaud testifying and that’s all we had testifying was Mr. Bachaud. Mr. Bachaud testified that while he did not remember the number of occasions he dialoged with his client, ... the Court was impressed that on more than one occasion, a number of occasions, the number of which is unknown at this point, he discussed the strategy that he thought was appropriate in representing [defendant] and that strategy was to seek a bench trial.
[Defendant] was present in court on those occasions in which Mr. Bachaud, his attorney, announced in open court that he seeks a bench trial, not a jury trial.
I find that that evidence, although absent an open dialog directly with the defendant, is enough to convince me ... that [defendant] was sufficiently counseled and consciously and intelligently waived his right to be tried before a jury.

In State v. Pierre, supra, the Supreme Court found that the defendant had knowingly and intelligently waived his right to a trial by jury because: (1) defense counsel waived a jury trial on the defendant’s behalf; (2) the trial court memorialized the defendant’s earlier waiver in the defendant’s presence; and (3) defense counsel stated that he and his client had discussed the waiver at length and on several occasions, and both agreed to the waiver.

The instant case is similar to the factual circumstances of State v. Pierre. In the instant case, on January 3, 2011, in defendant’s presence, defense counsel requested a bench trial on defendant’s behalf. On February 22, 2011, also in defendant’s presence, the trial court made it clear that the matter would proceed to a bench trial. Then, on the morning of trial, once more in defendant’s presence, when the prosecutor asked whether defendant had waived his right to a jury trial, ^defense counsel responded in the affirmative. At no point during these proceedings did defendant object to a bench trial.

Subsequently, at the evidentiary hearing on remand, defense counsel specifically testified, as noted above, that he advised defendant of his right to a jury trial, that he believed defendant understood this right, that he informed defendant of the consequences of proceeding to trial by jury versus trial by judge, that he discussed the strategy of trial by judge with defendant on more than one occasion, and that defendant agreed with this strategy.

For the foregoing reasons, we find that the evidence elicited at the hearing conducted on this issue on remand was sufficient for the trial court to determine that defendant knowingly and intelligently waived his right to a trial by jury. Accordingly, defendant’s assignment of error is without merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED

      . The underlying facts of this case are set forth in defendant’s first appeal, Id. at 1287, and are not relevant to his second appeal.

      . This Court previously conducted an errors patent review in defendant's first appeal in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). See State v. Carter, 96 So.3d at 1293-94. In this, his second appeal, defendant is only entitled to an errors patent review regarding the evidentiary hearing conducted on remand. See State v. Smith, 10-814 (La.App. 5 Cir. 6/14/11), 71 So.3d 357, 363, writ denied, 11-1529 (La.1/13/12), 77 So.3d 951. No errors patent requiring corrective action were found.