author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Quierza LEWIS, Appellant.
    No. 47,534-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, STEWART, and MOORE, JJ.
   BROWN, Chief Judge.

1 following a jury trial, defendant, Qui-erza Lewis, was convicted of possession of a Schedule II CDS, cocaine, in an amount more than 28 grams but less than 200 grams. He was originally sentenced to 20 years at hard labor and fined $50,000.00. This court affirmed the conviction in State v. Lewis, 42,365 (La.App.2d Cir.09/19/07), 965 So.2d 971; however, the state had filed a multiple offender bill under a new docket number. Defendant’s 20-year sentence was vacated, and he was adjudicated a third-felony offender and sentenced to life in prison at hard labor without parole, probation, or suspension of sentence. Defendant now appeals his adjudication as a third-felony offender and his life sentence as excessive. We affirm.

Facts

On March 16, 2006, the state filed an habitual offender bill of information charging defendant as a third-felony habitual offender. All convictions occurred in Webster Parish, Louisiana. In addition to the current conviction, defendant was alleged to have distributed cocaine on June 6, 1997; he pled guilty to distribution of cocaine on April 3, 1998 (first predicate conviction), and was sentenced to six years at hard labor with credit for time served. Defendant was again charged with distribution of cocaine on June 5, 1998; he pled guilty to distribution of cocaine on August 30, 1999 (second predicate conviction) and was sentenced on January 24, 2000, to five years at hard labor to run consecutive to the previous sentence.

Defendant claims that the state failed to prove that he was the person convicted on August 30, 1999. Therefore his third-felony offender 12adj udication and life sentence should be vacated and this case remanded for him to be sentenced as a second-felony habitual offender.

On October 30, 2006, a hearing was held, and the state introduced evidence regarding defendant’s prior and current convictions. The state began by introducing certified copies of the bills of information and minutes which showed all three convictions. Then the state offered testimony of officers involved with the arrest and prosecution of defendant on all three convictions.

The state’s fingerprint experts, Jacob Cyrus Hortman and Scott Tucker, testified that they worked for the Webster Parish Sheriff’s Office. They matched the fingerprints affixed on the bill of information in the current case and in the first predicate case with the prints taken from defendant that morning. There were no prints on the back of the bill of information in the second predicate case.

Lieutenant Dan Weaver of the Minden City Police Department, the investigator on the two prior convictions, testified that in 1997, he came in contact with defendant, whom he identified, as a result of a drug buy made by an undercover narcotics agent. Lieutenant Weaver testified that defendant was arrested for the sale of cocaine. This was the first predicate offense. He testified that defendant was convicted of distribution of cocaine and given a sentence of six years at hard labor. Minden Police Officer Richard Cooper was working with Lt. Weaver and confirmed this arrest and conviction of defendant.

IsLieutenant Weaver stated that on June 5, 1998, the Minden City Police Department conducted another undercover operation, and defendant sold the undercover agent cocaine (the second predicate conviction). Defendant was charged with distributing cocaine. Lieutenant Weaver was asked how the determination was made that it was defendant who had made the sale, and he answered, “A picture was also obtained and showed to the C.I., who identified the subject that sold him the cocaine as being Mr. Lewis.” Lieutenant Weaver identified defendant in court and confirmed that he was the same individual whom Lt. Weaver had previously identified with regard to the prior conviction (the first predicate offense). Lieutenant Weaver was asked what sentence defendant had been given in the second conviction and he stated, “I want to say in 2000 he was convicted and got five years of hard labor.” There was no cross-examination of the witness by defendant’s attorney.

Lieutenant Marvin Garrett with the Minden Police Department testified that he was working patrol in 1998 and assisted in the arrest of defendant in July of 1998, which would have been the arrest leading to the August 30, 1999, conviction. Lieutenant Garrett testified that defendant was not at home on the day they went to arrest him, but he turned himself in later that day, and Lt. Garrett was at the police department when that took place. Lieutenant Garrett identified defendant in the courtroom. Lieutenant Garrett was also involved in the investigation of the current case and stated that defendant was arrested, the case went to trial, he was convicted by a jury, and he received a 20-year sentence.

|4The trial judge found that the evidence was clear that defendant who was found guilty on the current charge was the same person who had pled guilty to the two previous distribution charges. In particular, the judge found, based upon Lt. Weaver’s testimony, as supported by that of Officer Cooper and Lieutenant Garrett, that defendant was the same person who had pled guilty on August 30, 1999, and was sentenced January 24, 2000. Therefore, the trial judge adjudicated defendant to be a third-felony offender.

Discussion

Adjudication as Third-felony Offender

Defendant argues that a review of the evidence presented at the October 30, 2006, hearing did not support the finding that he should be adjudicated a third-felony offender because the state failed to establish that he was the same person convicted of distribution of cocaine and sentenced in January 2000 (the second predicate conviction). According to defendant, none of the testimony of Lt. Weaver or Lt. Garrett contained a first-hand account that Quierza Lewis was the person convicted in that case. Instead, it only established that he was a person arrested for cocaine distribution.

In State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001), the court observed that La. R.S. 15:529.1(F) does not require the state to use a specific type of evidence to carry its burden at a habitual offender hearing, and that prior convictions may be proven by competent evidence. State v. Winslow, 45,414 (La.App.2d Cir.12/15/10), 55 So.3d 910, writ denied, 11-0192 (La.06/17/11), 63 So.3d 1033.

In State v. Keys, 29,369 (La.App.2d Cir.1997), 694 So.2d 1107, writs denied, 97-1387, 97-1497 (La.10/31/97), 703 So.2d 21, there was sufficient evidence to show that the defendant was the same person as the previously convicted felon to support multiple offender sentencing, even though the bills of information charging prior felony convictions did not contain his fingerprints; his identity was adequately established by documentary evidence, including transcripts of Boykin hearings and sentencing hearings for prior felonies, together with positive identification by the probation and parole specialist who had supervised the defendant, and corroborating identification from law enforcement officers.

In this case, the state introduced the certified copies of the bills of information that gave the dates of the three offenses and minutes establishing the dates of defendant’s convictions. With regard to the specific conviction to which defendant claims the state failed to properly connect him, the state produced the testimony of Lt. Weaver and Lt. Garrett, both of whom knew defendant and identified him in court as the person arrested in that case. Lieutenant Garrett was supposed to be the arresting officer, but defendant was not at home the day he was scheduled to be arrested, and in fact, defendant turned himself in later that day. Lieutenant Garrett was present at the police station when defendant did so. Lieutenant Garrett also took part in the investigation in the current case and was able to identify defendant as the person who was convicted in that case.

|fiBased on the testimony of these two witnesses, the state produced competent evidence that defendant, Quierza Lewis, is the same person who was convicted in all three cases. Therefore, defendant was properly adjudicated a third-felony offender, and this assignment of error lacks merit.

Excessive Sentence

Defendant argues that although the habitual offender statute mandates a sentence of life imprisonment upon a third-felony conviction if the third felony and the two prior felonies were violations of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for ten years or more, the life sentence imposed upon him was unconstitutionally excessive. According to defendant, the trial court failed to consider any of the factors found in La. C. Cr.P. art. 894.1(B) in sentencing him.

Defendant contends that his sentence is constitutionally excessive because it makes no measurable contribution to acceptable goals of punishment and amounts to nothing more than a purposeful imposition of pain and suffering. The defendant claims he was 27 years old at the time of his life sentencing, and this sentence fails to provide him with the opportunity to be rehabilitated and to reenter society as a productive member while being punished in a reasonable manner for his nonviolent crime.

In 2005, the year that defendant was convicted of his third-felony offense, La. R.S. 15:529.1 stated in pertinent part as follows:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
Ji • ‘
(b) 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:
(ii) If the third felony and the two prior felonies are felonies defined ... as a -violation of the Uniform • Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years 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 State v. Winslow, supra, this court found that when a sentence is prescribed by the habitual offender statute, a trial court’s compliance with the sentencing guidelines is not required. It would be an exercise in futility for the trial court to discuss the factors enumerated in the guidelines when the court has no discretion in sentencing a defendant. Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. The mandatory life sentences required under the habitual offender law are presumptively constitutional and should be accorded great deference by the judiciary.

In State v. Winslow, supra, this court further found that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence under the habitual offender law is constitutional. In order to do so, it must be clearly and convincingly shown by the defendant that he is exceptional, which in this context means that because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign | Ssentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Defendant was convicted twice of distribution of cocaine and a third time for possession of more than 28 grams but less than 200 grams of cocaine. Defendant is a drug dealer. Even after two prison sentences he continued his criminal conduct. He has failed to rebut the presumption that the mandatory minimum sentence under the habitual offender law is constitutional. He did not show that he is the victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of his offense, the gravity of his offense, and the circumstances of his case. He failed to present any specific evidence to the trial court explaining why the mandatory minimum sentence in this case should not be imposed upon him.

Because the mandatory minimum sentence in a habitual offender case is presumed constitutional and accorded great weight by the judiciary, we find that this assignment of error is without merit.

Conclusion

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


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Avery D. DURHAM, Appellant.
    No. 47,549-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Beth Smith Fontenot, Louisiana Appellate Project, for Appellant.
    Jonathan M. Stewart, District Attorney, Hubert Russell Davis, Kenneth Patrick Haines, Tammy Lenn Gantt, Benjamin J. Bleich, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW, and LOLLEY, JJ.
   LOLLEY, J.

|,Avery D. Durham pled guilty to one count of possession of a schedule II controlled dangerous substance, in violation of La. R.S. 40:967 C, and was sentenced to two years’ hard labor, sentence suspended, a fine of $500.00, and court costs. Durham now appeals. For the following reasons, we affirm Durham’s conviction and sentence.

FACTS

On April 19, 2011, police officers responded to a call from Kimberly Israel complaining that her child’s father, Avery Durham, was peering into her house and that he was not supposed to be there. On their way to Israel’s house, the officers spotted a man fitting the description given by Israel. The officers stopped the man and through questioning, learned that he was Avery Durham. During the encounter, Durham was asked to empty his pockets onto the hood of a police car. Durham agreed; however, as he approached the vehicle he turned away from the vehicle and began to run. One of the officers immediately tackled Durham and placed him under arrest. Durham’s pockets were subsequently searched revealing what appeared to be crack cocaine.

Durham was charged with one count of resisting an officer in violation of La. R.S. 14:108 and one count of possession of a schedule II controlled dangerous substance in violation of La. R.S. 40:967 C. Durham filed a motion to suppress evidence, alleging that the search conducted by police, which resulted in the discovery of cocaine in Durham’s pocket, was unconstitutional. The trial court denied Durham’s motion to suppress. Durham ultimately plead guilty to one count of possession of cocaine, preserving his right to appeal the trial court’s denial of his motion to suppress. The trial court convicted and sentenced Durham to serve two years’ hard labor and fined him $500.00, plus court costs. The trial court suspended the jail time and placed Durham on two years of supervised probation. This appeal followed.

DISCUSSION

As his first and only assignment of error, Durham argues that the trial court erred by failing to grant his motion to suppress evidence. Specifically, Durham claims that the officers lacked a warrant and probable cause when they arrested him and, therefore, the subsequent search which revealed the crack cocaine violated his Fourth Amendment rights. Durham claims that his two steps toward one of the officers when asked to place the contents of his pockets on the hood of a police cruiser did not provide probable cause to believe that he was attempting to flee.

This court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.03/09/07), 949 So.2d 441. Great weight is placed on the trial court’s ruling on a motion to suppress in regard to the findings of fact because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Turner, 46,683 (La.App.2d Cir.12/14/11), 82 So.3d 449, writ denied, 2012-0165 (La.06/22/12), 91 So.3d 965.

IsA search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State v. Warren, 2005-2248 (La.02/22/07), 949 So.2d 1215; State v. Burney, (La.App.2d Cir.05/23/12), 92 So.3d 1184. A traditional exception to the warrant requirement is a search incident to a lawful arrest based upon probable cause. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Hall v. City of Shreveport, 45,205 (La.App.2d Cir.04/28/10), 36 So.3d 419.

The standard for investigatory stops and pat-downs for officer safety, as set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), has been codified by the Louisiana legislature in La. C. Cr. P. art. 215.1 and reads, in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

Louisiana R.S. 14:108, the crime of resisting an officer, which was amended in 2006, states in pertinent part:

A. 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 property or to |4serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.

The amended version added the words “lawful detention” to section (A), to criminalize the resistance of an officer who is attempting a lawful arrest or detention. See State in Interest of J.T., (La.App.4 Cir. 05/16/12), 94 So.3d 847.

At the motion hearing, the trial court heard nearly identical testimony from three law enforcement personnel concerning Durham’s arrest. Officer Melvin Nev-els, employed by the Gibsland Police Department, testified that he, accompanied by Deputy Steve Smith of the Bienville Sheriffs Department, stopped Durham because he fit the description given by Israel and was seen walking away from her residence. Officer Nevels testified that he asked if Durham had just left Israel’s residence, and Durham admitted that he had been to her house to cheek on his son. Officer Nevels stated that he continued to question Durham in order to determine whether Durham was permitted to be near Israel’s residence when Deputy Clint Smith of the Bienville Sheriffs Office arrived.

All three officers testified that during the stop, Durham appeared extremely nervous and agitated. Deputy Clint Smith testified that, for the officers’ safety, he asked Durham if he would mind emptying his pockets |Bonto the hood of a police cruiser. All three officers explained that Durham agreed to the request but instead of approaching the police cruiser, Durham looked as though he was preparing to run and then took two steps towards Off. Nevels who tackled Durham and placed him under arrest. Officer Nevels stated that after Durham was placed in handcuffs, either he or Dep. Clint Smith searched his pockets and found the crack cocaine.

Here, the trial court correctly denied Durham’s motion to suppress evidence. First, the officers had reasonable suspicion to stop Durham because: he fit the description given by Israel; he was seen in the proximity of the Israel’s home; and, upon questioning, he admitted to having peered through Israel’s screen door. Next, the officers had probable cause to believe that Durham was attempting to flee when they arrested him. All three officers testified that while being questioned, Durham appeared extremely nervous, and as he walked towards the police cruiser to empty his pockets, he abruptly changed direction and made two quick steps which indicated that he was attempting to flee. Such behavior is not indicative of a cooperative person and strongly supports probable cause to believe that Durham was attempting to flee the investigative stop. Therefore, his arrest for resisting an officer was valid. As a result, the search of Durham’s pockets which revealed the cocaine was a valid search incident to arrest and did not violate Durham’s constitutional rights. The trial court properly denied Durham’s motion to suppress evidence and this assignment of error is without merit.

^CONCLUSION

For the foregoing reasons, the conviction and sentence of Avery D. Durham are affirmed.

AFFIRMED.


author: CARAWAY, J.

text:
    Kirby ROACH, Plaintiff-Appellant v. LIBBEY GLASS, INC., Defendant-Appellee.
    No. 47,573-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.
    William R. Long, Bossier City, LA, for Appellant.
    Eskridge E. Smith, Jr., Bossier City, LA, Linda Lea Smith, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   CARAWAY, J.

_JjThe workers’ compensation judge CWCJ”) denied the worker’s claim for continued supplemental earnings benefits and penalties and attorney fees for late compensation benefits after determining that the evidence failed to establish his inability to earn 90% of his pre-accident wages. For the following reasons, we affirm.

Facts

Kirby Roach, an instrument technician with Libbey Glass, Inc., since 1981, was electrocuted while at work on January 3, 2006, and received serious injury to his shoulder which required a total shoulder replacement. Roach returned to employment with Libbey on October 19, 2009, under permanent medical restriction. Lib-bey accommodated the restrictions which allowed Roach to return to his previous job as an instrument technician. Libbey paid temporary total disability benefits to Roach prior to his return to employment. Thereafter, Roach received supplemental earnings benefits (“SEBs”).

On January 13, 2011, Roach filed a disputed claim for workers’ compensation seeking penalties and attorney fees for late payment of SEBs. Libbey answered the claim denying Roach’s further entitlement to SEBs as well as Roach’s claim for penalties and attorney fees for untimely payment of SEBs due to Roach’s lack of entitlement to the SEBs paid.

Both sides agreed to stipulate the matter ■ by exhibits and briefs, which were submitted to the court on December 1, 2011. The exhibits included:

1) Roach’s 2005 W-2 that showed wages of $58,229.08;
2) Roach’s 2010 W-2 showing wages of $60,886.88;
|¾3) Documentation showing that Roach worked a total of 3242.59 hours in 2005;
4) Affidavit of Libbey’s National Human Resource Manager, who attested to the fact that Roach’s hourly wage on January 3, 2006 was $19.91 and for January-December 2005 was $19.42;
5) Affidavit of Roach which indicated that he earned $19.91 per hour in January 2006 and $21.44 per hour as of December 2011. Roach attested to the fact that overtime hours are voluntary and that he could not perform his duties without significant accommodations being provided to him by Libbey due to his January 3, 2006 injury.

The Joint Trial Stipulation included the following facts:

1) Roach’s average weekly wage at the time of injury of $1,719.22;
2) Roach’s assertion that he was entitled to SEBs for each month that he failed to earn 90% of his pre-accident monthly wage of $7,449.95;
3) The Paycheck History of Roach and an unnamed co-employee from October 2009-October 2011 including hours worked by both employees but no wage information. The documents showed that the co-employee worked 2559.21 hours in 2010 and 2013.05 hours through October 2011. The documents also showed that Roach worked 3,055.06 in 2010 and 2065.21 through October 2011.

After considering all of the evidence, the WCJ denied Roach’s claim after determining that any diminution in salary was not shown to be “more-probably-than-not related to his work injury.” The court also denied penalties and attorney fees for late payment of benefits. This appeal by Roach ensued.

Discussion

The 2006 version of La. R.S. 23:1221 which sets the requirements for entitlement to supplemental earnings benefits read as follows:

|s(3) Supplemental earnings benefits.
(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

The term, wages, is defined in relevant part by La. R.S. 23:1021(12) as follows:

“Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater.

The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. Initially the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Poissenot, supra. In determining if an injured employee has made out a prima facie case of ^entitlement to SEBs the court may and should take into account all those factors which might bear on an employee’s ability to earn a wage. Id. Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee in his or the employer’s community or reasonable geographic area. Id.

The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review which determines whether the factfinder’s conclusion was a reasonable one. Poissenot, supra. In making this determination a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages. Id.

The WCJ properly acknowledged Roach’s argument “that he need only show that he is making less than 90% of his pre-injury wage in order to shift the burden of proof’ to Libbey to show his ability to earn his pre-injury wage. Roach’s argument rests solely on the statutory mathematical calculations for “wages” and “average monthly wages” attributable to Roach at the time of the January 3, 2006 accident. Nevertheless, all of the actual, non-statutory wage/work circumstances surrounding Roach’s employment in 2005, the year before his accident, and 2010, the year before |shis filing of this claim, demonstrate the mathematical fallacy of that argument.

Roach’s “wages,” or average weekly wages, for his “actual hours worked in the four full weeks preceding” the accident was $1,719.22. The stipulations also revealed that he was being paid $19.91 per hour. Thus, although a regular 40-hour work week would have yielded Roach only $796.40 in wages per week, Roach obviously was involved in much overtime labor for the four weeks preceding his accident, making the statutory calculation of $1,719.22 for his four-week average much larger than normal. This average weekly wage calculation would further indicate annual wages of approximately $89,399 ($1,719.22 x 52 weeks) from a strictly mathematical standpoint. However, Roach’s annual wage income for 2005, the 52 weeks preceding the accident, was only $58,229. This comparison reveals that while Roach was clearly entitled during his period of total disability to receive wage benefits under the Act using the statutory $1,719.22 average weekly wage, the use of that amount alone for the measure of 90% of Roach’s work/wage earning ability is not necessarily decisive.

Three other economic measures revealed from the actual employment data are significant in this case. In 2005, Roach worked a total of 3242.59 hours, and in 2010, 3055.06 hours. This does not reflect that any continuing disability caused Roach’s actual time on the job to drop below 90%. Moreover, using a 40-hour work week for 52 weeks, or 2080 annual hours, the hours worked by Roach in both years reveals considerable overtime | ñwork. Likewise, Roach’s actual hourly wage has risen to $21.44 and his total annual wage for 2010 rose to $60,886.88. Finally, the 2559.21 annual work hours of a similarly situated instrument technician, Roach’s co-employee, was additionally stipulated evidence revealing that Roach has a work ability that has not been reduced below 90%.

Accordingly, we reject Roach’s argument based on the statutory average weekly wages calculated solely from the four-week wages earned before the accident. The WCJ correctly applied the broader measure of the Poissenot ruling, finding that the weight of all the actual wage data did not demonstrate the employee’s inability to earn 90% or more of his pre-injury wage.

Conclusion

For the foregoing reasons, the judgment of the WCJ is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . Libbey argues that in the four full weeks prior to Roach’s accident, the plant was in “shutdown mode,” a time when the regular operations of the plant are shut down. It is during this time that instrument technicians such as Roach work increased hours which result in large amounts of overtime. Additionally Roach received holiday pay during this time.

      . Generally, the law governing an action for workers’ compensation benefits is the law in effect at the time of the injury. Frith v. Riverwood, Inc., 04-1086 (La.01/19/05), 892 So.2d 7.


text:
    STATE of Louisiana, Appellee v. Michael Anthony WILLIAMS, Appellant.
    No. 47,574-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Madeleine M. Slaughter-Young, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

| t Michael Anthony Williams was convicted of possession with intent to distribute a Schedule I controlled dangerous substance (marijuana) and subsequently sentenced to 17 years’ imprisonment at hard labor with credit for time served. Williams appeals his conviction on the grounds that the evidence was insufficient to convict him. We affirm.

Facts

On December 4, 2009, the state filed a bill of information charging Michael Anthony Williams, and a co-defendant, Warren Carl Jefferson, with one count of possession with intent to distribute more than 60 but less than 2,000 lbs. of marijuana, in violation of La. R.S. JO^eetAXl). The two men were stopped by Louisiana State Police in the early morning hours of October 16, 2009, after it was determined that the license plate on the trailer portion of the 18-wheeler tractor-trailer rig in which they traveled was suspended. After obtaining consent to search the truck, police discovered 106.8 lbs. of baled marijuana under the sleeper bed bunk. Jefferson eventually entered a guilty plea with an agreed suspended sentence in exchange for his testimony against Williams.

Williams’ case proceeded to trial on November 7, 2011. After hearing the evidence, the jury returned a verdict of guilty as charged by a 10-2 vote. On February 1, 2012, Williams was sentenced to 17 years’ | ¡¿imprisonment at hard labor with credit for time served. The instant appeal followed.

Discussion

On appeal, Williams argues that the evidence was insufficient to prove that he had any knowledge of the presence of the marijuana in the truck other than Jefferson’s testimony, which should have been discounted as wholly unreliable considering his prior statements exonerating Williams and his receipt of a favorable plea bargain in exchange for his testimony.

The state’s evidence included the testimony of Sergeant John Peters, a member of the Louisiana State Police. On October 16, 2009, Peters was working on the criminal patrols unit as a canine handler. At approximately 5:00 a.m., Peters pulled over an 18-wheeler tractor-trailer rig on Interstate 20 in Ouachita Parish after determining that the license plate on the trailer was suspended. As a certified Department of Transportation level two inspector, Peters was also authorized to stop any commercial truck traveling within the State of Louisiana to check all driver and vehicle information, certifications, log books, and shipping information. When he approached the vehicle, Peters encountered the driver, Warren Carl Jefferson, and a second individual, Williams, who was lying in the sleeper bunk behind the driver. Peters informed the driver why he had stopped him and ascertained that the truck was returning from a trip to Houston where, Jefferson asserted, he had delivered a vehicle. Jefferson also stated that he and Williams, his co-driver, were on their way to Meridian, Mississippi. After |sobtaining Jefferson’s driver’s license, the trailer registration, a bill of lading, the truck’s log book, and the trailer’s VIN, Peters returned to his patrol car.

Peters testified that in running a check on Jefferson’s driver’s license he discovered that Jefferson had a criminal history which included charges of assault, battery, cruelty to a juvenile and a DUI. He also ascertained that the license plate on the trailer was not only suspended but was not registered to the VIN of the trailer, indicating that the trailer’s plate had been switched with that of another vehicle. Peters prepared a citation for the suspended plate and asked Jefferson to step to the back of the vehicle. After Peters informed Jefferson the citation was being issued to his company and not to Jefferson personally, Jefferson signed the citation and received his copy of same. Peters then asked Jefferson if they were carrying any weapons, alcohol, or drugs in the truck, which Jefferson denied. Peters also requested consent from Jefferson to a search of the tractor rig. Jefferson gave verbal consent and then signed a consent form confirming same.

Williams, who had remained in the truck, was asked to join Jefferson in front of Peters’ patrol unit. As Peters searched the passenger compartment, he lifted the mattress on the lower bunk on which Williams had been lying. Underneath, Peters found four duffle bags containing five “bales” of marijuana.

Thereafter, the truck was driven back to the Troop F headquarters where Trooper Steve Wallace was charged with removal of the suspected contraband from the truck. Wallace testified that he located and removed the duffle bags from under the lower bunk of the sleeper compartment of the |4tractor rig, photographing them both before and after their removal. He then removed the bales of marijuana from the bags, weighed them (106.8 lbs.) and secured them until they were later forwarded to the crime lab for analysis.

Wallace also testified that in his investigation he had researched the names of the companies on the truck and the bills of lading, respectively, and determined that the addresses on record with the State of Georgia for each of these companies was the same address listed on Williams’ driver’s license. Lastly, Wallace testified that the amount of marijuana found in the truck and the method of packaging were inconsistent with personal use and indicated that the contraband was intended for distribution.

Susan Foley, a forensic chemist employed with the North Louisiana Crime Lab in West Monroe, testified that tests were conducted on samples from each of the five bales of marijuana and were determined to contain marijuana.

Jefferson testified for the state. According to Jefferson, the two met approximately five years earlier when Jefferson had worked for Williams’ trucking company for approximately six months. Jefferson had limited contact with Williams until just before the October 2009 trip to Houston. Earlier that month, Jefferson began doing clean-up work for Williams. Just before they traveled to Houston, Jefferson testified that Williams approached him and asked him to make the trip which Williams indicated was for the purpose of “[gjoing to get some marijuana.” Jefferson testified that he and Williams falsified a bill of lading to reflect that they were | ^making a delivery of a Volvo in Houston when they in fact had no load to deliver. Jefferson said he knew that as a commercial vehicle they could be stopped at any time and would have to present paperwork regarding what their cargo was and its destination.

Once in Houston, Jefferson testified that they made a stop at a truck stop where he ate and showered. Because he and Williams did not remain together during this time, he was not aware of the defendant’s whereabouts, but did state that Williams had possession of the keys to the truck. Later, Williams dropped Jefferson off in a neighborhood south of Houston and told him to wait there until he returned. When he did, the two headed back toward Atlanta, though Williams told Jefferson they would be making a stop in Meridian, Mississippi.

Jefferson testified that he did not know where in the truck the marijuana was, but suspected that it was in the frame of the doors. When he gave consent to Peters to search the truck, he did not believe they would find the marijuana.

Jefferson admitted that, contrary to his trial testimony, at his 72-hour hearing, he asserted to the court that Williams had no knowledge of the marijuana in the truck. He also admitted that he had prepared an affidavit and letter in which he claimed full responsibility for the marijuana found in the truck, asserting that Williams knew nothing about it. He claimed that in both of those documents he was lying.

The relevant portions of these documents which were introduced into evidence included the following statements by Jefferson:

|fiMr. Michael Williams was arrested and charged with conspiracy and distribute marijuana. That should not be true, for he had no knowledge of the marijuana that was stored in the truck after we droped (sic) our load off in Texas. It is unfair to charge him in connection of my wrongdoing. When he had nothing to do with it. I take fully responsibliy (sic).
I have submitted a written affidavit on the behalf of my co-worker, Mr. Williams. Freeing him on any willful knowledge of the marijuana that was in the rig that I was driving on the night of October 16, 2009, cause he didn’t know. Mr. A.D.A. I do request that you drop all charges against my co-worker, Mr. Williams and do the right thing. Free him cause it is wrong to hold him away from his family; when he did nothing.

Jefferson testified that it was Williams’ idea for him to “take the rap” and that he agreed to do so in order to help the defendant. Jefferson testified that during their time in jail, Williams would purchase and provide him with things from the jail store, such as razors and other personal items. Lastly, Jefferson testified that the content of the documents was written by another inmate by the name of Samuel Johnson and that Jefferson had merely copied them into his own handwriting. Notwithstanding the contents of the documents, Jefferson subsequently entered a plea of guilty to an unspecified charge and received a 10-year probated sentence in exchange for his testimony against Williams.

The defense called two jail mates of the defendants to testify on Williams’ behalf. The first was Reginald Dorsey, a five-time felony offender, who testified that he heard Jefferson apologize to Williams for “bringing him into the situation” and stating that Williams did not know anything about the marijuana. He testified that he heard these statements both in the room he shared with Williams and at Bible class. The other |7witness was Samuel Johnson, the individual Jefferson alleged had helped him draft the affidavit and letters. Johnson denied having had anything to with the drafting of the documents other than supplying Jefferson with a dictionary and some paper. Johnson stated that he had heard Jefferson during “prayer call” asking for his fellow inmates’ prayers for having gotten “his boss locked up for my marijuana.” He also recalled Jefferson making similar “confessions” to Williams on various occasions. Johnson also said that Jefferson specifically admitted he loaded the marijuana in the truck when they stopped at the truck stop. As Johnson explained in his testimony, Williams owned a company and went to Texas to “redo some plates.” When they got to the truck stop, Williams left Jefferson there to “go get the paperwork done” during which is when Jefferson allegedly admitted to loading the drugs in the truck. On cross-examination, Johnson admitted to a criminal history that included convictions for aggravated flight from an officer, simple battery, unauthorized use of a vehicle, four DWIs and a cocaine-related charge.

Discussion

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299.

laCircumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Speed, supra. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

In Louisiana, an accomplice is qualified to testify against a co-perpetrator even if the state offers him inducements to testify. The inducements would merely affect the witness’s credibility. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047. A conviction may be sustained by the uncorroborated testimony of an accomplice, although the jury should be instructed to treat the testimony with caution. State v. Hughes, supra; State v. Tate, supra. When the accomplice’s testimony is materially corroborated by other evidence, such language is not required. State v. Hughes, supra; State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). An accomplice’s testimony is materially corroborated if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation. State v. Hughes, supra; State v. Castleberry, supra.

A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Sylvia, 01-1406 (La.4/9/03), 845 So.2d 358; State v. Smith, 600 So.2d 1319 (La.1992).

A person commits the crime of possession of marijuana with intent to distribute if he knowingly or intentionally possesses marijuana with the intent to distribute it. La. R.S. 40:966(A)(1). The state must prove that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute. State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630, 637, State v. Taylor, 39,651 (La.App.2d Cir.4/6/05), 900 So.2d 212; State v. Johnson, 34,902 (La.App.2d Cir.9/26/01), 796 So.2d 201, writ denied, 03-2631 (La.11/8/04), 885 So.2d 1124; State v. Marshall, 02-1067 (La.App.5th Cir.2/25/03), 841 So.2d 881, writ denied, 03-0909 (La.9/26/03), 854 So.2d 345.

It is not necessary for the state to prove that the defendant was in actual possession of the contraband; rather, proof of constructive possession |nis sufficient. Constructive possession is shown when the state proves that the contraband was within the defendant’s dominion and control and that the defendant had knowledge of its presence. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910; State v. Robbins, supra.

The mere presence of a person in the place where contraband is found or the mere association with another person possessing contraband is not sufficient to prove constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347. Guilty knowledge is an essential element of a possession charge, and such knowledge may be inferred from the circumstances. State v. Toups, supra; State v. Taylor, supra. A determination of whether the defendant was in possession depends on the “peculiar facts” of each case, which may include the following: (1) the defendant’s knowledge that the contraband is in an area; (2) his relationship with the person found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use; and (5) the defendant’s physical proximity to the contraband. State v. Robbins, supra. Further, a defendant may have constructive possession if he willfully and knowingly shares the right to control the contraband with another. Id.

Louisiana courts have repeatedly held that guilty knowledge is an essential element of the crime of possession. State v. Edwards, 354 So.2d 1322 (La.1978). Guilty knowledge and intent, while questions of fact, need |12not be proven as a fact, but may be inferred from circumstantial evidence. State v. Sylvia, supra.

In this case, the chief element of proof corroborating Jefferson’s story is the testimony of Trooper Wallace which indicated that the truck in which the suspects had traveled to Houston and the two company names linked to the truck were all registered in Williams’ name. This evidence corroborates Jefferson’s claims that it was Williams who was the mastermind of the drug operation. Furthermore, Williams’ presence in the truck circumstantially and independently links him to the offense, as the marijuana was in the immediate area he occupied in the truck.

Jefferson admitted to the jury that he had lied on numerous occasions about his and Williams’ involvement in the crime. Yet, there was no evidence in this case of any particular animosity between the witness and the defendant and the documents prepared by Jefferson give no factual detail about how Jefferson hatched or carried out the scheme. The jury was made aware of Jefferson’s deal with the state and the advantage he obtained by testifying.

As to the contradiction of Jefferson’s testimony by cellmates Dorsey and Johnson, the jury had similar reason to discredit their testimony. Both failed to give any credible detail about how Jefferson had caused Williams to be an unwitting participant in the crime. Even if believed, Jefferson’s alleged statements were made at a time when he admitted he was lying and were part of his purported scheme to protect his boss and possibly obtain continued financial support for necessities that Williams was providing. | ^Considering the time and context of the alleged statements overheard by the cellmates and the lack of specific detail given by these witnesses, the jury was not unreasonable in discounting the accuracy of the cellmates’ recollection of Jefferson’s statements.

From the undisputed evidence of the men’s action in concert for their trip to Houston and Williams’ connection with the truck, the jury could choose to reject the defense evidence on credibility grounds and accept the testimony of Jefferson linking the actions of both men to the crime. This assignment of error is without merit.

Decree

For the foregoing reasons, we affirm Williams’ conviction and sentence.

AFFIRMED.

      . The weight provision contained in the original bill of information was struck through in an amended bill of information filed on November 8, 2011, the day after Williams' trial commenced.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Alvin LEWIS, Appellant.
    No. 47,579-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Louisiana Appellate Project by Teresa C. Carroll, Jonesboro, LA, for Appellant.
    Alvin Lewis, Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and HARRISON (Pro Tempore), JJ.
   STEWART, J.

hAs a result of a plea agreement, the defendant, Alvin Lewis, pled guilty to simple burglary, in violation of La. R.S. 14:62. He was sentenced to serve 12 years’ imprisonment at hard labor and ordered to pay $5,000.00 in restitution. The sentence was ordered to run consecutive to any other sentence he was serving. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction and sentence.

FACTS

The defendant faced criminal charges in four separate cases and had previously entered a plea of not guilty in each case. Pursuant to a plea agreement, he pled guilty to simple burglary, and the remaining charges were nol prossed. The defendant agreed that the facts, as presented by the state, were substantially correct. More specifically, he agreed that between May 10, 2011, and May 15, 2011, he committed simple burglary of Brenda West’s home. The defendant stole items from West’s home, which resulted in her claim of $9,785.00 in restitution. A presentence investigation report was ordered.

On January 80, 2012, the defendant appeared for sentencing. West provided a written statement describing damage to her home and the distress she endured as a result of the defendant burglarizing it. West’s written statement acknowledged that some of the stolen items had been returned or recovered, and she estimated the value of the items not recovered at | ¾$5,000.00. The police investigation revealed that some of the stolen items had been sold to an iron scrap yard.

A review of the defendant’s criminal history revealed convictions in 1969 for burglary in California; in 1970 for receiving stolen property in California; in 1978 for second degree burglary in California; in 1989 for simple burglary in Louisiana; in 1998 for simple burglary in Louisiana; and in 2007 for felony theft in Louisiana. Although the defendant was released on parole many times for these convictions, his parole was often revoked.

The presentence investigation indicated that the defendant was a fourth felony offender and therefore no longer eligible for probation. The trial court recited the 69-year-old defendant’s personal and employment history, specifically noting that although he reached the 12th grade at Booker T. Washington, he did not graduate. Over the years, the defendant worked several jobs, including one at a chemical and aluminum plant and one as a painter in a construction business. After considering the defendant’s criminal history and the sentencing guidelines pursuant to La. C. Cr. P. art. 894.1, and noting that any lesser sentence would deprecate the seriousness of the crime, the trial court sentenced the defendant to 12 years’ imprisonment at hard labor, to run consecutively with any other sentence. He was also ordered to pay $5,000.00 in restitution for West’s unrecovered items.

On February 23, 2012, the defendant filed a motion to reconsider sentence, claiming that although his sentence fell within statutory limits, it |swas excessive and merely punitive. This motion was denied on February 28, 2012, and the defendant subsequently filed this appeal.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he argues that the trial court erred in denying his motion for reconsideration of sentence and rendering an excessive sentence in this ease. More specifically, the defendant contends that the imposed 12-year sentence serves no useful purpose for a 69-year-old man convicted of simple burglary, in light of the trial court’s order for him to pay $5,000 in restitution. He further contends that the trial court did not properly consider the stolen property that was returned shortly after the crime was committed. The defendant believes that due to his age and the consecutive sentences imposed, he will likely die in prison.

La. R.S. 14:62(B), regarding the crime of simple burglary, states:

B. Whoever commits the crime of simple burglary shall be fined not more two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37,442 (La.App. 2 Cir. 8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

|4In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), pri- or criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt, 43,708 (La.App. 2 Cir. 12/3/08), 998 So.2d 864, writ denied, 2009-0265 (La.11/6/09), 21 So.3d 305.

|fiSecond, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864. A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473; State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665. In cases where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in his potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667; State v. Richardson, 446 So.2d 820 (La.App. 2d Cir.1984). This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, supra. Further, a substantial advantage obtained by means of a plea bargain, such as a reduction of the charge where the evidence shows the offender is guilty of the most serious offense originally charged, is a legitimate consideration in sentencing. State v. Burgess, 42,310 (La.App. 2 Cir. 9/12/07), 965 So.2d 621.

In the instant case, the defendant ransacked Brenda West’s home, and stole $9,785.00 worth of her belongings. Only a portion of West’s belongings were recovered.

After a careful review of the record, and given the defendant’s actions, we do not find error in the imposition of the maximum allowable sentence. The record indicates that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The transcript shows that it considered the defendant’s personal history, as well as his extensive criminal history. As stated in the facts section, the defendant was convicted in California in 1969 for burglary, in 1970 for receiving stolen property, and in 1978 for second degree burglary. He was then convicted in Louisiana in 1989 and 1998 for simple burglary, and in 2007 for felony theft. We note that the defendant obtained multiple convictions for the same crime that he committed in the instant case. The punishments that the defendant received for his previous convictions have not sufficiently rehabilitated him, nor have they deterred him from committing additional crimes.

Furthermore, the defendant obtained a substantial benefit through the state’s offer to have three other charges nol prossed. The state also offered to not multi-bill him as a fourth-felony offender. As stated above, the trial |7court had great discretion to impose the maximum sentence. Taking that into consideration, we find that this sentence does not shock the sense of justice. This argument is without merit.

CONCLUSION

For the reasons discussed above, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The State originally charged the defendant with simple burglary of an inhabited dwelling, illegal possession of stolen things, possession of stolen property over $500.00, theft of goods over $500.00, looting and simple criminal trespass.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Issac M. NEWMAN.
    No. 12-KA-359.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Issac Newman, St. Gabriel, LA, Defendant In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2On September 30, 2008, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Issac Newman, with possession of cocaine in violation of La. R.S. 40:967(C). On October 21, 2008, defendant entered a plea in ab-sentia of not guilty. On March 3, 2009, defendant withdrew his not guilty plea and pled guilty in open court. The trial court sentenced defendant to two years at hard labor. The trial court deferred defendant’s sentence contingent upon his successful completion of the Jefferson Parish Intensive Drug Program pursuant to La. R.S. 13:5304.

Beginning in March of 2009, however, multiple attachments were issued for defendant’s failure to comply with the drug program and, on September 3, 2010, a Rule to Make Sentence Executory was filed seeking revocation of defendant’s probation. On November 15, 2010, the trial court conducted a hearing at which [..¡defendant stipulated to the revocation of his probation. The trial court revoked defendant’s probation and imposed the original sentence of two years at hard labor. On that same day, the state filed a multiple offender bill of information alleging defendant to be a third felony offender. With the assistance of counsel, defendant executed a waiver of rights form and pled guilty to the multiple offender bill in open court. The trial court vacated defendant’s original two year sentence and sentenced defendant to six years at hard labor without benefit of probation or suspension of sentence, in conformity with the written multiple bill plea form.

On January 9, 2012, the trial court granted defendant an out-of-time appeal. On May 15, 2012, defendant’s appointed appellate counsel filed an Anders brief asserting that, after a thorough review of the trial court record, he could find no non-frivolous issues to raise on appeal. Counsel further requested a review of the record for errors patent and filed a motion in this Court to withdraw as counsel of record pursuant to the procedure in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990). Defendant received notification of appointed counsel’s motion to withdraw and his right to file a supplemental pro se brief in this Court. Defendant timely filed a supplemental pro se brief with this Court on June 12, 2012.

Supplemental Pro Se Brief

In his supplemental brief and motions filed with this Court, defendant essentially alleges two grounds on which his multiple offender adjudication and sentence is improper: (1) his enhanced sentence of six years is in violation of his plea agreement; and (2) the state failed to timely file the multiple bill against him.

|4In his first argument, defendant contends that his enhanced sentence of six years is in violation of his contract with the state, ie., his plea agreement. Defendant asserts that neither his trial counsel nor the court advised him that he would receive a six year sentence; rather, defendant states that he understood the maximum sentence he would receive is two years at hard labor.

At the original sentencing hearing on March 3, 2009, the trial judge advised defendant that, if he failed to comply with the Jefferson Parish Intensive Drug Program, he would be sentenced to two years at hard labor. On November 15, 2010— after defendant failed to comply with the drug program — the trial court made defendant’s two-year deferred sentence executo-ry. On the same date, the state filed a multiple offender bill of information against defendant, alleging defendant to be a third felony offender. Defendant, represented by counsel, stipulated to the multiple bill and signed a written waiver of rights form.

The record reflects the trial judge ascertained that defendant was a twenty-six year old man with two years of college education who is able to read, write and understand the English language. The transcript of the multiple offender hearing shows that the trial judge, in open court, fully informed defendant of his right to a habitual offender hearing at which the state would have the burden to prove that defendant is in fact the same individual convicted of the prior felonies set forth in the multiple bill. The trial judge further advised defendant of the sentencing range pursuant to La. R.S. 15:529.1 and clearly informed defendant that he, pursuant to his plea agreement, would receive a six year sentence.

The trial court did not err in finding that defendant’s plea was knowing, intelligent, and voluntary. Further, the defendant’s six year sentence is the sentence he agreed to in open court and on the multiple bill plea form. Therefore, we find no error in the sentence imposed as it conforms to the defendant’s plea 1 .¡agreement. Regardless, La.C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. See La.C.Cr.P. art. 881.2(A)(2); State v. Reese, 09-1058, p. 4 (La.App. 5 Cir. 5/25/10), 40 So.3d 1117, 1119; and State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. This assignment of error is without merit.

In his second argument, defendant contends that the multiple bill — filed twenty months after the trial court imposed his initial sentence — is untimely. A guilty plea waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Nevertheless, a review of the record shows that the state’s fifing of the multiple bill against defendant was not untimely.

La.C.Cr.P. art. 874 states that a sentence shall be imposed without unreasonable delay. State v. Jones, 08-466, p. 4 (La.App. 5 Cir. 10/28/08), 998 So.2d 178, 181. Under La. R.S. 15:529.1(D)(1)(a), a habitual offender bill may be filed against a defendant who has been convicted of a felony “at any time, either after conviction or sentence.” Id., 08-466 at 5, 998 So.2d at 181. The statute does not establish a time limit for the state to file a habitual offender bill. Id. Nevertheless, a habitual offender bill must be filed within a reasonable time after the state learned the defendant had prior felony convictions. Id., 08-466 at 5, 998 So.2d at 182. A reasonable time is determined on a case-by-case basis. Id. Further, in determining whether the state’s delay is reasonable, a court may consider, among other factors, the reason for the delay in filing the multiple bill. Id; see also State v. Muhammad, 2003-2991, p. 14 (La.5/25/04), 875 So.2d 45, 55.

|6In this case, defendant’s original sentence was deferred on the condition that he successfully complete a drug program. After it became apparent that defendant was not complying with the conditions of the drug program, the trial court revoked his probation and imposed his previously deferred sentence. On the same date that the trial court made defendant’s sentence executory, the state filed a multiple bill against him. Under the specific facts of this case — where the state refrained from fifing a multiple bill against defendant until he failed to comply -with the intensive drug program — we find the multiple bill to be filed in a timely manner. Accordingly, this assignment is without merit.

Anders Brief

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting he has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the ^evidence presented to the jury for its consideration.” Jyles, 96-2669 at 2 (La.12/12/97), 704 So.2d at 241.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Defrene, 07-823, p. 4 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In this case, appointed appellate counsel’s brief demonstrates that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. The state agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record. An independent review of the record supports counsel’s assertion that there are no non-frivolous issues to raise on appeal.

First, the bill of information filed properly charged defendant with possession of cocaine in violation of La. R.S. 40:967(C). As required, the bill of information clearly, concisely, and definitely states the essential facts constituting the offense charged and sufficiently identifies defendant and the crime charged. See La.C.Cr.P. arts. 464-466. Second, the minute entries and commitment reflect that defendant appeared at each crucial stage of the proceedings against him. ^Defendant properly waived his appearance at his arraignment and physically made an appearance in open court for his guilty plea, his original sentencing, his multiple offender hearing, and his multiple offender sentencing. Third, defendant’s guilty pleas — on his underlying bill and his multiple offender bill — are proper. The trial court informed defendant in open court of the sentencing range and the sentence that would be imposed in the event that he pled guilty in each instance. Specifically, the trial court advised defendant that if he failed to successfully complete the Jefferson Parish Intensive Drug Program, he would be sentenced to two years at hard labor for his conviction for possession of cocaine. Further, at the multiple offender hearing, the trial court informed defendant that his stipulation to the multiple offender bill would result in a six year enhanced sentence. Therefore, defendant was informed of his underlying and enhanced sentences prior to each plea. Last, defendant’s original and enhanced sentences are well within statutory guidelines. See La. R.S. 40:967(0 and La. R.S. 15:529.1. Further, because defendant was sentenced in conformity with his guilty plea, defendant is precluded from challenging his sentence on appeal. State v. Hill, 09-89, p. 5 (La.App. 5 Cir. 5/26/09), 15 So.3d 1042, 1044.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant’s appointed appellate counsel has adequately demonstrated his review and analysis of the record in this case. An independent review of the record supports counsel’s assertions set forth in his Anders brief. Therefore, we find that counsel’s request to withdraw as counsel of record should be granted.

Errors Patent

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. A review of the record reveals one error patent that requires corrective action.

The record reflects that, at the November 15, 2010, multiple offender hearing, the trial judge failed to properly advise defendant of the prescriptive period within which he must apply for post-conviction relief. Accordingly, we hereby advise defendant that, pursuant to La. C.Cr.P. art. 930.8, 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. art. 914 or 922. See State v. Ramsey, 10-333, p. 10 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42.

Conclusion

Accordingly, defendant’s conviction, multiple offender adjudication, and sentence are affirmed. Defendant’s appointed appellate counsel’s motion to withdraw is hereby granted.

AFFIRMED

      . The record contains a “Motion, Affidavit, and Order to Waive Defendant’s Presence at Arraignment” signed by defendant on October 20, 2008.

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

      . Defendant also filed a Motion to Correct/Amend Broken Plea Agreement and a Motion to Amend/Appeal with Grounds for Remedy, which contains similar arguments as those presented in defendant's supplemental pro se brief and are addressed herein.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The record also reflects that the trial court failed to inform defendant of the time period in which he must file an appeal. This error, however, is moot because defendant has been granted an out-of-time appeal.