author: CARAWAY, J.

text:
    STATE of Louisiana, First Appellant v. Dustin PRICE, Second Appellant.
    No. 48,986-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2014.

      T. Taylor Townsend, D. Scott Kendrick, Natchitoches, for Defendant, Second Appellant.
    Julie C. Jones, District Attorney, J. Chris Guillet, Assistant District Attorney, for Plaintiff, First Appellant.
    Before BROWN, CARAWAY and GARRETT, JJ.
   CARAWAY, J.

| Justin Price was convicted as charged of second degree cruelty to juveniles in violation of La. R.S. 14:93.2.3 after a jury trial. Price was subsequently adjudicated a fourth-felony habitual offender and received a sentence of 24 years at hard labor, without benefit of probation, parole or suspension of sentence. Price challenges his conviction and habitual offender adjudication. The State of Louisiana has appealed the sentence. We affirm the conviction and habitual offender adjudication. We vacate the sentence imposed and remand for resentencing.

Facts

Two and one-half month old I.P., the son of defendant and Ashley Coker, was rushed by his mother to the Christus Coushatta Hospital emergency room on the afternoon of December 23, 2009. The child was unresponsive and had bruising on his buttocks, knees, legs, arms and face. Hospital personnel notified the Red River Sheriffs Department, which documented the child’s injuries. Law enforcement also observed that Coker had a black eye and bruising on her body. I.P. was initially diagnosed with pediatric trauma. He was later transferred to a Shreveport children’s hospital where his condition deteriorated; he began having seizures. A neurologist was consulted, and I.P. underwent emergency brain surgery to relieve pressure inside his skull caused by multiple subdural hemorrhages. I.P. also suffered from multiple broken bones, brain injuries of differing stages, | indicating more than one episode of shaking, multiple retinal hemorrhages, and hearing and vision loss.

After law enforcement investigation of the events, both Coker and Price were charged with second degree cruelty to juveniles. The case against Price proceeded to trial in June 2012. Price was convicted as charged and subsequently adjudicated a fourth-felony offender. He was sentenced to 24 years at hard labor without benefits in March 2013. Price appeals his conviction and habitual offender adjudication. The state has appealed the imposed sentence.

Discussion

In his first assignment of error, Price argues that the evidence was insufficient to convict him of the charged offense due to the lack of evidence showing that he inflicted injuries to the child. Price argues that the uncorroborated testimony of Coker failed to exclude the reasonable hypothesis that she inflicted the injuries to I.P.

Coker was 25 years old when she testified at trial. She first met Price in 2008 and the two began dating and living together. At the time of trial, Coker testified that Price was 29 years old. In 2009, Coker found out she was pregnant, and the two moved into a trailer together. I.P. was born on October 1, 2009.

On December 22, 2009, Coker recalled that Price was sick and that the two had been up all night with I.P. Price allowed Coker to go back to bed while he took care of I.P. Coker got up at approximately 1:00 p.m. that | safternoon. When she saw Price and I.P., the baby was on the floor asleep next his father, who was playing a video game in front of the TV. Price complained that the baby was fussy and always crying.

At both 1:00 p.m. and 5:00 p.m., Price demanded that Coker give him a Xanax. Coker had been prescribed the drug for a bipolar disorder. Coker refused both of Price’s requests for the drug. Some time after the second refusal, Price started screaming at Coker again demanding that she give him the drug “to calm his head down.” Coker testified that Price “snatche[d] him (I.P.) up by the arm.” Coker immediately retrieved I.P. from his father and began to feed him a bottle. Thereafter, Coker described the events as follows:

I start feeding him a bottle.... And Dustin’s still complaining and hollering and screaming. And I’m just ignoring him. I get up to get away from it, to go inside the bedroom and Dustin follows me. And in that time he’s pushing me, while I have [I.P.] in my arms. And there was clothes in the floor in the kitchen, and I tripped over them. I fell on my back. And when I did, Dustin was over me hollering and screaming, f* * * you, pack your s* * *, get out and leave, I want all your s* * * gone, all you all just get out. Just keep on. Started punching, screaming, kicking me with his feet and then dragging my hair around the floor. The floor’s, it’s not hardwood floor, but it’s a floor that you can drag somebody around on. He started pulling me and dragging me by the hair. I holler — I just holler out, .quit, quit, please quit. And then he finally he stops. I get up and I’m checking on [I.P.] making sure he’s okay.

Coker testified that during these events, I.P. was in her arms. She went into one of the bathrooms on the other side of the house. Price kicked her in the back and she almost fell. She started for the front door with Price behind her. According to Coker, Price pushed her and the baby, and she fell out of the door. She “somewhat caught the fall,” but ended up on the ground with I.P. in her arms. Coker got up as Price continued to scream. |4She stayed outside until he calmed down and went back into the trailer. At this time, Price apologized to Coker and checked on I.P.

Coker testified that she then put I.P. to sleep and a couple of hours later discovered that she needed diapers. She asked Price for money and went to the store, intending to bring I.P. Coker testified that Price told her to leave the child with him instead and to buy medicine. Coker left the home for 1 to 1-1/2 hours. Upon her return, Price “flings open the door and is hollering” that he was sick of I.P.’s crying. Coker stated that she went into the house and found I.P. screaming and crying. She asked Price what he had done. Coker testified that she started feeding I.P., and he went to sleep. As she began to bring the baby into the bedroom, Price grabbed her ponytail and pulled her to the ground. Coker testified that he started kicking, screaming and demanding that she give him the Xanax, “all over again.” Ultimately, Coker testified that she gave him the Xanax. She and I.P. went into the bedroom where they fell asleep. Within two hours Price came into the bedroom and went to sleep without further incident.

Coker testified that the following morning, December 23, she got up and performed her daily routine of preparing Price for work and getting I.P. fed and changed. She stated that Price began looking for the money he had given her the night before. He began to accuse her of stealing the money, and he pushed her. She caught herself before she fell on I.P. Price then stormed out and drove off in his truck. Coker stated that during these events I.P. was crying.

Coker testified that it was later that she noticed that I.P. had a fever. Upon earlier instructions by Price’s mother, Coker gave the baby infant | ¡/Tylenol. After Coker prepared I.P. a bottle, she came back into the room to find him unresponsive. She testified that she tried to wake him up, but his arms were “flimsy.” She then thought to put him in a bathtub of cold water. As she did so, however, Coker testified that she dropped the baby on the side of the baby bathtub, hitting his leg on the side of the tub. She placed him in the icy water, but he remained unresponsive. Coker then called Price’s father, David Price, who lived six or seven miles away. The elder Price drove the mother and baby to the Coushatta Hospital for treatment.

As I.P. was being transferred to the Shreveport hospital later that evening, Price arrived. Coker stated that she went to a safe house because she was scared to go home. She testified that as the result of her altercation with Price, she had her hair pulled out, a black eye, and bruises on her arms, back and legs. Coker identified photographs of her injuries, which were introduced into evidence.

Coker testified that Price hurt I.P. in the fights she described, and that throughout the punching, kicking, and knocking, I.P. was crying and trying to move around. Coker admitted that she initially pled guilty to second-degree cruelty to a juvenile but later withdrew her plea. Her case was still pending. She also admitted to a couple of criminal convictions.

On cross-examination, Coker admitted that Price was working in Texas at the time I.P. was brought to the hospital. She admitted that she told officers that Price “never hurt I.P. and was a good daddy.” She also conceded that she gave her statements to officers prior to being criminally charged. Coker later explained that she made those statements because she was being bombarded with questions at the hospital and was afraid of Price. 16She ultimately told the supervisor of the safe house “everything” because she felt safe.

Vernon Perrin, a criminal investigator with the Red River Parish Sheriffs Department, testified that he was present at LP.’s admittance. He stated that the baby was in pain and had bruises on his buttocks, knees, legs, arms, head and face. Perrin photographed I.P.’s injuries; the state introduced these photographs into evidence. Perrin identified one photograph of bruises on the child’s right upper arm, which showed four fingerprints. Per-rin testified that Coker told him that she did not think Price could have done it when she left I.P. with him the day before.

Johnny Ray Taylor, an investigator for the Red River Parish Sheriffs Office, also photographed I.P.’s injuries. The state introduced these photographs into evidence. Investigator Taylor testified that from the evidence he collected, he learned that I.P. had multiple broken bones, brain injuries in different stages, multiple retinal hemorrhages, and hearing and visual loss. Taylor filed an arrest affidavit for Price.

On cross-examination, Taylor stated that he filed the arrest affidavit based on the evidence he collected, which included information that Price was working in Texas at the time I.P. was taken to the hospital, but also that Price was at home when I.P. suffered his injuries.

Dr. Phillip Utter, a neurosurgeon and a witness for the state, performed surgery on I.P. two days after he was brought to the hospital, on Christmas night. Dr. Utter described LP.’s case as “unforgettable.” He |7stated that when he first saw I.P., he was lethargic and having continuous seizures. A CT scan of the child’s head showed “a fair amount of increased intracranial pressure.” Dr. Utter could tell that I.P.’s head was swollen and under a lot of pressure. He also diagnosed retinal hemorrhages and prior rib fractures.

Dr. Utter testified that he saw old and new “serious neurological injuries” in the brain. He stated that the “likelihood of any sort of successful outcome in this situation was very low.” He concluded that the child was in “a very high risk of death,” and that it was “fortunate that the child made a recovery.”

Dr. Utter concluded that I.P. suffered nonaccidental trauma and that his pattern of injuries were far beyond “a fall in the bathtub.”

Dr. Margaret Ann Springer, a clinical assistant professor of pediatrics at LSU Health Sciences in Shreveport and a witness for the state, observed I.P. She identified I.P.’s numerous injuries. Dr. Springer stated that I.P. had suffered life-threatening nonaccidental trauma, shaken baby syndrome, and that it was her opinion that I.P. had suffered his acute injuries within the 24 hours prior to his hospital arrival. Dr. Springer explained that this type of injury is “mildly or relatively” asymptomatic until bleeding develops to such an extent in the brain that it causes swelling or pressure. Seizures then occur, and surgery is required to drain the blood and release the pressure. Dr. Springer explained that swelling appears 12-24 hours after an injury. [ sWith a child, the findings are subtle because babies sleep so much. Dr. Springer testified that in her opinion, the bleeding in I.P.’s eyeballs and brain were caused by violent shaking back and forth that could have occurred in a number of seconds.

Dr. Springer testified that punching, kicking and falling down stairs would cause bruising and some of the other things I.P. exhibited.

On cross-examination, Dr. Springer testified that dropping a baby in a bathtub or on a bathtub may cause some bruising but would not cause injuries to the baby’s brain and eye.

Price’s mother and father testified in his defense. His mother, Donna Price, testified that she took care of I.P. two days before the incident and that he was okay. She normally took care of the child twice a week; he was her only grandbaby. She identified a photograph of I.P. that she took two days before his hospitalization. The defense introduced the photograph into evidence. Mrs. Price testified that she had been a pediatric nurse for 14 years and that she never saw her son hurt I.P.

David Price testified that on December 23, 2009, Coker called and told him that she had given the baby Tylenol and that he would not wake up. He and his sister immediately drove over. He described the situation as follows:

We drove up, the door was open on the trailer. And I could see from the car — I was probably, I guess, thirty foot from the house where they live, the trailer house where they live. And the door was open and I could see Ashley sitting in a chair, the couch or whatever, and she was panicked. And she was shaking the baby and slapping him on the back screaming, wake up I.P. And I come into the house and I said, stop it. And she stopped. And she kind of handed me the baby. And he was ice cold. I said, why is he cold? I thought he was dead. And she said, 119put him in ice water to try to make him start breathing. And all he was doing was just gasping for breath. He wasn’t breathing in; he was just breathing out.... And I said, in Jesus name, and I laid him on my shoulder. And when I did his eyes opened and he started to breathe.

David Price testified that after they got into the car, Coker began to shake the baby and he again told her to stop.

On cross-examination, David Price testified that he gave a written statement that he was told that Price and Coker had a big fight the night before and that was when “I.P. got hurt.”

The standard of appellate review for sufficiency of the evidence 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). 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 factfinder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 48,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the 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 11 (¡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.

Circumstantial 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. Speed, supra. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Bonnett, 524 So.2d 932 (La.App. 2d Cir. 1988), writ denied, 532 So.2d 148 (La.1988). The trier of fact hears the testimony first hand and unless the factfinder’s assessment of believability is without any rational basis it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992). 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 factfinder’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, 11writ 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.

In Louisiana a conviction may be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat the testimony with great caution. When the accomplice’s testimony is materially corroborated by other evidence, such language is not required. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047.

Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of 17 to any child under the age of 17 that causes serious bodily injury or neurological impairment to that child. La. R.S. 14:93.2.3. For purposes of this Section, “serious bodily injury” means bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death. Id.

When viewed in the light most favorable to the prosecution, we find the evidence sufficient to support Price’s conviction for second degree cruelty to juveniles beyond a reasonable doubt. The physicians’ medical diagnoses of life-threatening nonacci-dental trauma and shaken baby syndrome were unquestioned. Thus the sole disputed issue for the jury to resolve was whether the remaining evidence established that Price participated in or solely inflicted the injuries to the child. That evidence consisted mainly of Coker’s testimony, a party also responsible for the child’s care. However, the evidence of the physical injuries to Coker herself corroborates Coker’s testimony of Price’s violence.

_|_^Coker testified that it was Price who pushed, kicked, punched, and dragged her on the ground by her hair while she held I.P. on two separate occasions the day before I.P.’s hospitalization. Her testimony also established that he pushed the mother and baby out the front door where she fell to the ground. Coker’s injuries were established by the evidence. She stated that during her altercations with Price, the child was injured. Moreover, on that afternoon, Price stayed alone with the child for over an hour. When Coker returned, Price was agitated, and the baby was crying. Obviously the jury accepted this testimony as credible. David Price corroborated that the couple’s fight on December 22 was the time the baby was hurt. Ultimately, Dr. Springer’s testimony established that I.P.’s symptoms would have begun to exhibit themselves in the 12-24 hour period after the injuries were inflicted. She testified that the events Coker described were consistent with the baby’s injuries.

Price’s participation in inflicting the child’s injuries can reasonably be inferred from this proof of facts and circumstances. The evidence supports the jury’s conclusion that it was Price who injured I.P. and shook him during the events that transpired on December 22. The jury could have reasonably rejected any evidence that Coker’s shaking of the child in the minutes before he was taken to the hospital caused the brain swelling and resultant complications. The jury’s determination that the direct, circumstantial and medical evidence as presented by the state was sufficient to establish beyond a reasonable doubt Price’s participation in the infliction of serious bodily injury and neurological impairment to I.P. was not erroneous. This assignment of error lacks merit.

hüPrice next argues that the trial court erred in adjudicating him a fourth-felony offender because he was not adequately informed of his right to trial by jury in one of his predicate offenses.

On July 30, 2012, the state filed a habitual offender bill of information alleging that Price was a fourth-felony offender with the following past felony convictions: (1) February 26, 2002, guilty plea in Docket No. 92,494, in the 39th Judicial District Court, to simple burglary (sentenced to five years, with four years suspended and active probation); (2) December 17, 2003, guilty plea in Docket No. 97,197, in the 39th Judicial District Court, to possession of Schedule II CDS (cocaine) (sentenced to eight years at hard labor, with four years suspended with supervised probation); (3) November 4, 2005, guilty plea in Docket No. 71,537, in the 26th District Court, to possession of Schedule II CDS (methamphetamine) (sentenced to four years at hard labor); and (4) the present conviction.

On August 20, 2012, Price appeared with newly retained counsel and denied all allegations contained in the habitual offender bill. Thereafter in his answer, Price alleged that he had not been properly Boyk-inized in one of the prior offenses. He further asserted that the mandatory minimum sentence would be constitutionally excessive in this particular case.

Price’s habitual offender proceedings were held on March 12 and 19, 2013. The state introduced the testimony of Price’s probation officer on the prior offenses and fingerprint experts. The state also introduced penitentiary |14packs relating to Price’s prior convictions. Price stipulated to the admissibility of the records for purposes of authenticity only.

On May 10, 2013, the court rendered an amended ruling, which rejected the argument that Price was not sufficiently advised of his right to a jury trial. Thus, the court adjudicated Price a fourth-felony offender.

On appeal, Price argues that his November 4, 2005 guilty plea to possession of Schedule II, Methamphetamine (Doc. No. 71,537), his third felony offense, was “void of any mention that Mr. Price was ever advised of his right to a jury trial.”

Price’s guilty plea and sentencing transcript of November 4, 2005, shows the following colloquy between Price and the trial court:

The Court: He’s also explained to you the nature of this plea bargain that has—
Mr. Price: Yes, sir.
The Court: —been done with the State? All right, sir. Now, Mr. Price, you understand that you have the right to continue your not guilty plea and have a trial?
Mr. Price: Yes, sir.

Attached to the transcript of the guilty plea submitted into evidence, however, was a transcript of Price’s April 25, 2005 arraignment for the same offense, before a different judge, which reads as follows:

The Court: Formal arraignment waived, pleas of not guilty entered to each charge. Mr. Price, these are felony charges which entitle you to trial by jury. You can waive that right and be tried by a judge alone. You do not have to make that decision today.
Mr. Price: Yes, sir.

I isThe record also reflects that in his two previous guilty pleas, in 2002 and 2003, Price was clearly and succinctly advised of his right to trial by jury.

In State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Supreme Court discussed the state’s burden of proof in a habitual offender proceeding as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights.

The federal constitutional standards set out in Boykin require that a guilty plea be recorded showing that the defendant was informed of and waived three specific rights. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. The trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Markray, 45,129 (La.App.2d Cir.4/21/10), 35 So.3d 453. Prior guilty pleas cannot |1(ibe utilized to infer the defendant’s knowledge of his rights when pleading guilty in a later case where no evidence exists to demonstrate that a defendant was properly Boykinized at the prior pleas. State v. Lawson, 410 So.2d 1101 (La.1982).

The Louisiana Supreme Court has stressed that Boykin does not set out a magic word formula that may serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea. State v. Dodson, 07-0057 (La.11/2/07), 967 So.2d 487; State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560. Likewise, the Louisiana Supreme Court has ruled that courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of Boykin rights has occurred. Lawson, supra. This court has applied this standard to predicate offenses utilized in proof of multiple offender proceedings. State v. Russell, 46,426 (La.App.2d Cir.8/17/11), 73 So.3d 991, writ denied, 11-2020 (La.2/10/12), 82 So.3d 270. The Boykin rights may be successfully conveyed in words tailored to a particular individual’s vocabulary and comprehension. Mendenhall, supra.

In State v. Worsham, 32,670 (La.App.2d Cir.2/1/00), 754 So.2d 1107, this court found a defendant’s guilty plea valid despite the fact that the trial court did not inform him of his right to a jury trial at the time he pled guilty because the record showed that the defendant was informed of his right to a jury trial at his arraignment. In State v. Honeycutt, 41,601 (La.App.2d Cir.2/28/07), 953 So.2d 914, this court validated a guilty plea where the court asked defendant if he knew he had a right to a trial because 117the record showed that the defendant was informed of his right to trial by jury at his arraignment. In State v. Ford, 41,949 (La.App.2d Cir.5/9/07), 957 So.2d 311, writ denied, 07-1377 (La.1/7/08), 973 So.2d 733, the defendant challenged his guilty plea on the grounds that he was not adequately informed of his right to trial by jury; the court informed him that he had a right to “have a trial.” This court validated the plea after determining that the defendant had been informed of his right to a jury trial at an earlier sanity hearing.

Considering this jurisprudence and the facts of the present case, we conclude that the record supports a finding that for the proof of this predicate offense, Price was adequately informed of his right to a trial by jury and that his waiver of that right was knowingly and voluntarily made. In this matter, Price did not directly challenge the plea. While reiterating our previous instruction that the better practice is to inform a defendant of his right to trial by jury at the time of the guilty plea, we find that any omission in this guilty plea was cured by the informing of rights at arraignment.

The final issue for our review concerns the excessiveness of the sentence imposed on Price. The state has appealed the sentence arguing that the trial court erred in deviating below the mandatory minimum sentence of 40 years required by La. R.S. 15:529.1. Specifically, the state argues that Price failed to show by clear and convincing evidence that he was the exceptional defendant for which downward departure was justified and that the court failed to articulate any reasoning sufficient to support a downward departure from the statutory minimum. Price argues that the imposition of |1sthe mandatory minimum sentence in this case would be constitutionally excessive. He also suggests that the District Attorney’s choice to seek habitual offender status based upon the defendant’s refusal to take a plea may amount to an unconstitutional discriminatory application of the habitual offender law.

Price’s sentencing hearing was held on June 25, 2013. The court noted that it had considered Price’s presentence investigation report and his status as a fourth-felony offender and noted that the sentencing range for a fourth-felony offender convicted of second degree cruelty to juveniles was 40 years to life imprisonment. La. R.S. 15:529.1(A)(4)(a). The court considered as aggravating factors under La. C.Cr.P. art. 894.1 the seriousness of the crime committed, the undue risk that Price would commit another crime, Price’s extensive record and need for correctional treatment. The court also determined that a lesser sentence would deprecate the severity of the offense. In mitigation, the court considered Price’s age and Coker’s liability for the offenses against the child.

The court concluded that it felt that the requirements under La. R.S. 15:529.1 would be “constitutionally excessive,” and stated that it intended to deviate from the mandatory guidelines. Accordingly, the court sentenced Price to 24 years at hard labor, without benefit of probation, parole, or suspension of sentence. The state objected to the court’s ruling.

Because the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be | ^constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339; State v. Burks, 47,587 (La.App.2d Cir.1/16/13), 108 So.3d 820, writ denied, 13-0424 (La.7/31/13), 118 So.3d 1116. A sentencing judge must always start with the presumption that a mandatory minimum sentence under the habitual offender law is constitutional. A court may depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it that would rebut this presumption of constitutionality. Johnson, supra. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show 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 sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Id. Departures from mandatory minimum sentences by their nature must be exceedingly rare. The classes of exceptional offenders for whom presumptively constitutional mandatory minimum sentences, but nevertheless excessive as applied to them, are exceedingly narrow. State v. Noble, 12-1923 (La.4/19/13), 114 So.3d 500. To overcome the presumption that a mandatory penalty prescribed by the legislature is constitutional as applied to a particular offender, the trial court must make two findings on the record. First, the jury must find clear and convincing evidence that the offender is exceptional as defined in Johnson, supra. Second, the trial court must articulate specific reasons why the sentence he imposes, instead of the statutory mandatory minimum, is the longest | ¡^sentence that is not excessive under the Louisiana Constitution. State v. Lawrence, 14-0081 (La.4/11/14), 136 So.3d 795, 2014 WL 1407725.

A trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence that justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason for declaring such a sentence excessive. Johnson, supra; Lindsey, supra; Burks, supra.

In brief, Price has failed to put forth any facts or arguments to support his conclusion that he is the exceptional defendant for whom downward departure from the mandatory minimum life sentence is required. At the sentencing hearing, his only argument for support of the downward departure was the nonviolent nature of his prior offenses. Otherwise the sole reason for the court’s imposition of sentence was the “domestic situation” between Price and Coker and its feeling that the “requirements under R.S. 15:529.1 would [be] constitutionally excessive if that was given to Mr. Price.”

On this record we cannot say that Price has demonstrated by clear and convincing evidence that he is the exceptional defendant for which downward departure is justified. His sole argument that his prior offenses were not violent are insufficient on their own to establish his burden because the violent nature of the offenses are taken into account in the statutory sentencing scheme. Likewise, the court articulated no further persuasive argument for the downward departure. For these reasons, we vacate the sentence and remand the matter for resentencing to a term of imprisonment | ainot less than the mandatory minimum of 40 years required by law. See Noble, supra.

Decree

For the foregoing reasons, Price’s conviction and habitual offender adjudication are affirmed. His sentence is vacated and the case is remanded for resentencing to a term of not less than the mandatory minimum of 40 years as required by law.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . At the time of trial, Coker and Price had married.

      . Amazingly, the child survived but remained hospitalized for several weeks. He has since been adopted.

      . Dr. Utter testified that he made four small incisions on I.P.’s head to drain out the sub-dural fluid products, which he described as a mix of old and new. Dr. Utter stated that “usually the intracranial pressure is around, something less than 20.” He remembered "in this case that basically the fluid shot across the room,” “was under substantial amount of pressure,” and “projected about 2½ feet from the head,” which would be “unusual and severe to ever see that in the operating room.”

      . Dr. Utter expressed no opinion as to who injured I.P.

      . This term refers to the three mandatory rights, including the right to trial by jury, of which a defendant must be informed prior to entering a guilty plea in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . In brief, the State indicates that the trial court had issued another written ruling which adjudicated Price a fourth felony offender, but inadvertently quoted the third felony offender law. This original ruling is not contained in the record before us.

      . Price raises this issue for the first time on appeal. His failure to file a motion to reconsider sentence including this issue precludes him from now raising it on appeal. La. C.Cr.P. art. 881.1.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Nalani Lynn CALDARERA v. Stanley Joseph CALDARERA.
    No. 14-41.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2014.
    Rehearing Denied July 23, 2014.

      Timothy O’Dowd, Lake Charles, LA, for Defendant-Appellant Stanley Joseph Cal-darera.
    David Hanchey, Lake Charles, LA, for Plaintiff-Appellee Nalani Lynn Caldarera.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Stanley Caldarera, appeals the trial court’s judgment denying his rule to find Plaintiff, Nalani Caldarera, in contempt of court for an alleged violation of a consent decree concerning child support.

FACTS

The parties were married in February 2002, in Calacasieu Parish where they established their matrimonial domicile. They had one child, born in 2002. Plaintiff filed a petition for divorce in October 2008, and a judgment of divorce was rendered in March 2010. In January 2011, judgment was rendered on a joint stipulation. On March 29, 2011, Defendant filed a rule for contempt of court alleging that in violation of the judgment on the stipulation, Plaintiff claimed the child as a dependent on her 2010 income tax return. He asked that Plaintiff be ordered to amend her 2010 tax return so that Defendant could claim the child on his 2010 tax return. Plaintiff also filed a rule for contempt asserting that Defendant failed to pay child support during 2009, and that he claimed the child as a deduction on his tax return in 2009, without authority and without notice. She cites La.R.S 9:315.18 as authority for the proposition that a party in arrears is not entitled to claim the child as a deduction. The trial court denied both motions for contempt as well as a motion to consolidate which has not been appealed.

Defendant appeals the denial of his motion for contempt.

DISCUSSION

Louisiana Code of Civil Procedure Article 221 defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. Contempts of court are of two kinds, direct and constructive!)]” Pursuant to La.Code Civ.P. art. 224(2), constructive contempt is “[wjilful disobedience of any lawful judgment, order, mandate, writ* or process of the court.” Constructive contempt “must be based on a finding that the accused violated an order of the court ‘intentionally, knowingly, and purposefully, without |¡¿justifiable excuse.’” Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 90-990 (La.5/29/98), 720 So.2d 343). “A trial court is vested with great discretion to determine whether a party should be held in contempt for willfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.11/28/01), 801 So.2d 346).

Garcia v. Garcia, 10-446, pp. 4-5 (La.App. 3 Cir. 11/3/10), 49 So.3d 601, 605, (alterations in original) cited in Thibodeaux v. Thibodeaux, 12-752 (La.App. 3 Cir. 12/5/12), 104 So.3d 768.

Review of the trial court’s determination as to whether behavior rises to the level of contempt is subject to a manifest error standard of review. McCorvey v. McCorvey, 05-1173 (La.App. 3 Cir. 4/5/06), 926 So.2d 114, writ denied, 06-959 (La.6/16/06), 929 So.2d 1290.

In this case, the trial court concluded that neither party’s behavior was such as to constitute contempt of court. After reviewing the record, we cannot say that the trial court abused its vast discretion by so ruling. Nor can we say that the ruling was manifestly erroneous. Accordingly, we affirm the judgment of the trial court.

CONCLUSION

Finding no error in the trial court’s denial of the motion for contempt, we affirm the judgment of the trial court. Costs of this appeal are assessed to the Defendant-Appellant, Stanley Joseph Caldarera.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Derek Dewayne HARRIS, Appellant.
    No. 48,659-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 28, 2014.

      Derek Dewayne Harris, Pro Se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jason T. Brown, Suzanne M. Owen, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

hDerek Dewayne Harris was charged with possession of more than 28 but less than 200 grams of cocaine, a violation of La. R.S. 40:967(F); battery of a police officer, a violation of La. R.S. 14:34.2; and, possession of marijuana with intent to distribute, a violation of La. R.S. 40:966(A)(1). Following the denial of his motion to suppress, the defendant pled guilty to these charges, reserving his right to appeal the denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced the defendant to serve agreed-upon sentences of 25 years at hard labor, five without parole, for the cocaine conviction; five years at hard labor for the battery conviction; and, 25 years at hard labor for the marijuana conviction, all to run concurrently, plus the minimum fines and default time, and Harris appealed. For the reasons that follow, we amend the sentences to delete the imposition of jail time in the event of the defendant’s default on the payment of fines and affirm the convictions and sentences as amended.

Facts

On February 2, 2009, after being arrested by Shreveport police, Harris was charged by bill of information with possession of more than 28 but less than 200 grams of cocaine, a violation of La. R.S. 40:967(F); battery of a police officer, a violation of La. R.S. 14:34.2; and, possession of marijuana with intent to distribute, a violation of La. R.S. 40:966(A)(1). That same day, the defendant appeared with counsel, waived formal arraignment, and pled not guilty to these charges. Thereafter, the defendant filed a motion to suppress the evidence of cocaine and marijuana which he alleged was seized as the result of an illegal pat-down search. Subsequently, the trial court held Ran eviden-tiary hearing on the defendant’s motion to suppress whereby the following evidence was adduced.

On December 15, 2008, Shreveport Police Sergeant W.W. Lindsey, Jr., was working a special detail in Shreveport, Louisiana, known as “Operation Camp Out,” designed to reduce crime rates in certain high-crime areas. This area in particular was targeted due to a high volume of vehicle burglaries, narcotics, speeding vehicles, arrests, and other illegal activity. At approximately 10:30 p.m., Off. Lindsey was driving eastbound on DeSoto Street when he approached a blue Chevrolet Tahoe traveling in the opposite direction. Officer Lindsey did not see a visible license plate on the SUV, so he turned around, activated his emergency lights, and effected a traffic stop. That action triggered the patrol car’s dash camera and the subsequent events were recorded.

The driver of the SUV, later identified as Derek Dewayne Harris, continued through the intersection and pulled over onto the shoulder of the road. When Off. Lindsey pulled in behind the SUV, he activated the patrol car’s spotlight and saw that the SUV had a temporary license tag taped on the inside of the dark-tinted rear window. Officer Lindsey then asked the defendant to get out of the vehicle; the defendant complied and approached Off. Lindsey’s patrol car. Officer Lindsey called for backup, got out of the patrol car, and began speaking with the defendant.

The defendant told Off. Lindsey that he had just bought the vehicle and said that the temporary tag was expired because the dealership made a mistake and wrote down the wrong date. At this time, Off. Lindsey observed two additional passengers in the SUV and that the defendant “was | Rooking around left, right, just looking.” Due to these circumstances, as well as being in a high-crime area, Off. Lindsey decided to wait until backup arrived before conducting a pat down of the defendant to ensure he was unarmed.

When Off. Lindsey saw that the backup officer was arriving on scene, he asked the defendant if he had any weapons, which the defendant denied, and Off. Lindsey instructed the defendant to put his hands on the front bumper of the patrol car so he could pat him down for officer safety. As Off. Lindsey began the pat down, he felt a bulge in the defendant’s right front pant’s pocket which he suspected was narcotics. At approximately that same time, the backup officer got out of his patrol car and the defendant broke away from Off. Lindsey and fled on foot.

The defendant tripped and fell about ten feet away. Officer Lindsey also fell to the ground, which resulted in a struggle between the two men. Officer Lindsey stated that the defendant was “fighting to the utmost” and that the defendant hit him in the face. Moreover, Off. Lindsey stated that some plastic baggies containing narcotics fell out of the defendant’s pants during the struggle. Ultimately, the officers were able to subdue and arrest the defendant, and the search incident to arrest revealed that the defendant had 65 grams of cocaine, 11 individually wrapped crack rocks, and ten grams of marijuana on his person.

After being charged with the drug and battery offenses, the defendant filed a motion to suppress, urging that the evidence was the fruit of an illegal search. More specifically, he argued that Off. Lindsey could not have reasonably feared for his safety giving rise to a pat down search and there |4was no “authority to reach into his coat pocket to retrieve a bag [too] small to contain a firearm or other weapon that may be dangerous to the officer.” The defendant also makes the argument that Off. Lindsey reached into his jacket pocket and seized the contraband during the pat-down search.

The trial court, disagreed and denied the defendant’s motion to suppress. The trial court first found that Off. Lindsey had justification for the traffic stop because the vehicle’s license plate was not visible and, second, that Off. Lindsey acted reasonably when he decided to pat down the defendant for weapons due to the fact that there were two additional persons in the car and that this was a high-crime area. The trial court also found that the subsequent discovery of the drugs during the arrest was legal. As to whether Off. Lindsey reached into the defendant’s jacket pocket and seized the drugs, the judge stated that despite viewing the video five times, he could not see whether the officer reached into a pocket and further stated that “it doesn’t appear that he actually took anything out of the [jacket] pocket and I can’t tell really from the video whether he stuck his hand in there or not.”

After the defendant pled guilty and was sentenced, he failed to timely file an appeal. However, the defendant ultimately obtained an out-of-time appeal through post-conviction relief, and this appeal now follows.

Discussion

As the defendant’s sole assignment of error, he argues that the trial court erred in denying his motion to suppress the evidence of cocaine and marijuana. According to the defendant, Off. Lindsey did not have reasonable suspicion to justify a pat-down search for weapons following the | ^initial traffic stop. We disagree.

When the legality of a search or seizure is placed at issue by a motion to suppress evidence, the state bears the burden of proving the admissibility of the evidence seized without a warrant. La. C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight and its ruling will not be set aside unless there is an abuse of discretion. State v. Wells, 2008-2262 (La.07/06/10), 45 So.3d 577. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Wells, supra; State v. Hunt, 2009-1589 (La.12/01/09), 25 So.3d 746.

Before we determine whether the trial court erred in its decision to deny the defendant’s motion to suppress, we note that the dash cam video recording of the incident was not included in the record on appeal. Apparently, because the words “admitted into evidence” were never used at the hearing, the recording was not made a part of the trial record. However, it is clear that the trial court viewed the recording many times in conjunction with its decision to deny the defendant’s motion. Because the defendant is entitled to a review on a complete record, this Court was ultimately able to obtain a copy of the recording and it has been subsequently added into the appellate record for purposes of review. See La. Const. Art. 1 § 19.

The first issue that we must consider is whether Off. Lindsey was justified in conducting the initial traffic stop. The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in | ^criminal activity is recognized in La. C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. 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).

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of legal violation, such as a traffic violation, occurred or is about to occur before stopping the vehicle. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 1997-0965 (La.03/13/98), 708 So.2d 1048; State v. Sinclair, 46,623 (La.App.2d Cir.08/17/11), 72 So.3d 448. The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evalúation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 1998-0188 (La.01/20/99), 729 So.2d 1019; Sinclair, supra. When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s intent. Whren, supra.

Louisiana motor vehicle law is clear that all vehicles operated on Louisiana highways must display a license plate. See La. R.S. 47:507. Although temporary license plates may be displayed on a rear window, they must nevertheless be “in a clearly visible place and position.” La. R.S. |747:521. At the hearing on the defendant’s motion to suppress, Off. Lindsey testified that when he passed the defendant’s SUV, no license plate whatsoever was visible to him. It was not until after Off. Lindsey activated the patrol car’s spotlight that he was able to see the temporary license tag taped inside the dark-tinted rear window. The video recording from the patrol car’s dash cam supports this testimony. Accordingly, Off. Lindsey’s decision to effect a traffic stop based on a violation of one of these provisions was lawful.

Having upheld the validity of the initial traffic stop, we must next determine whether Off. Lindsey was justified in conducting a pat-down search of the defendant for weapons. Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passengers out of the vehicle pending completion of the stop. State v. Evans, 48,489 (La.App.2d Cir.12/04/13), 130 So.3d 406. Further, 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. Cooper, 45,568 (La.App.2d Cir.12/08/10), 55 So.3d 873. 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. Terry, supra. 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. Terry, supra; State v. Boyer, 2007-0476, (La.10/16/07), 967 So.2d 458. Reasonable suspicion is more than a hunch, but is instead a “particularized and objective basis for suspecting the person stopped” of |scriminal activity. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Louisiana jurisprudence has recognized that there is potential danger for an officer even during a routine traffic stop. Landry, supra. 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, supra.

Here, we have identified four factors that Off. Lindsey articulated during his testimony in regards to his decision to conduct a pat-down search of the defendant for officer safety. First, Off. Lindsey testified that instead of remaining stopped at the stop sign, the defendant continued through the intersection and pulled onto the shoulder. Although this is not a crucial factor in our determination, we note that this factor was indeed one that Off. Lindsey specifically referenced when asked to articulate his suspicion that criminal activity was afoot. Second, while speaking with the defendant shortly after he was stopped, Off. Lindsey became aware of two other occupants in the vehicle. This factor seemed to be one of the biggest concerns for Off. Lindsey. In particular, he testified that it was the exact reason that he waited for the backup officer to arrive: “I waited for my backup to get there in case he had a weapon on him and I had to struggle with him. If I did that without my backup there, then the other two individuals could have got out and it would have been three on one.” Third, Officer Lindsey testified that throughout the encounter, the defendant | aseemed nervous and was “looking around left, right, just looking.” The fourth factor, and one that was also referenced quite frequently during Off. Lindsey’s testimony was that the traffic stop occurred in a high-crime area.

It was for these reasons that Off. Lindsey decided to conduct a pat-down search of the defendant only when a backup officer arrived in order to ensure a balance of force if the encounter became violent. Based upon this record, and given the officer’s testimony about the defendant’s furtive behavior, nervousness, and being outnumbered in a high-crime area, we conclude that Off. Lindsey possessed more than a hunch; he had a reasonable, particularized, and objective basis for suspecting the defendant of additional criminal activity. Accordingly, the defendant’s assignment of error that the pat-down search for weapons following the traffic stop was not based upon reasonable suspicion is without merit.

However, our analysis does not stop here as we need to determine whether the evidence was lawfully seized. As noted above, Off. Lindsey was not able to complete a pat-down frisk for weapons, because during the lawful detention, the defendant attempted to flee, a clear violation of resisting an officer under La. R.S. 14:108. Although Off. Lindsey felt a bulge in the defendant’s front pant’s pocket while conducting the pat down, nothing was seized during that time. Rather, the evidence was seized only after the defendant broke away and then fought with Off. Lindsey before being arrested.

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); State v. Surtain, |102009-1835 (La.03/16/10), 31 So.3d 1037. Probable cause to arrest exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense. State v. Parker, 2006-0053 (La.06/16/06), 931 So.2d 353. Here, once the defendant resisted by fleeing from the pat-down search as well as committing a battery upon a police officer, Off. Lindsey had more than enough probable cause to arrest the defendant. Having found the arrest legal, any drugs found on the defendant incidental to his arrest were lawfully obtained.

ErroR Patent

As a final matter, we note that the defendant was sentenced to 60 days in the event of the nonpayment of fines for the drug convictions. However, an indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs, or restitution. State v. Davenport, 43,101 (La.App.2d Cir.03/19/08), 978 So.2d 1189, writ denied, 2008-1211 (La.01/30/09), 999 So.2d 748. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Kerrigan, 27,846 (La.App.2d Cir.04/03/96), 671 So.2d 1242. Where a defendant is represented by the Indigent Defender’s Office, a court-appointed attorney, or the Louisiana Appellate Project, this Court has considered it error for a trial court to impose jail time for failure to pay court costs. Kerrigan, supra. In the context of disposition of this claim, this Court may choose to amend the defendant’s sentence. State v. Tillman, 43,569 (La.App.2d Cir.10/22/08), 997 So.2d 144, writ denied, 2008-283611 (La.09/25/09), 18 So.3d 85.

Accordingly, because the defendant was found to be indigent, we conclude that it was error to impose a 60-day sentence for the nonpayment of fines. Defendant’s sentence is therefore amended to delete the portion that provides for a jail term in the event of default on payment of fines.

Conclusion

So considering, the convictions of the defendant, Derek Dewayne Harris, are affirmed and his sentence is hereby amended to delete the imposition of jail time in the event of his default on the payment of fines.

AFFIRMED AND AMENDED; AND AS AMENDED, AFFIRMED.


author: MAX N. TOBIAS, JR., Judge. LOB RANO, J.,

text:
    Helen McKAMEY v. NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INC., et al.
    No. 2013-CA-1437.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Dominic N. Varreechio, New Orleans, LA, for Plaintiff/Appellant.
    Michael F. Grennan, Waller & Associates, Metairie, LA, Sidney J. Hardy, Lynda A. Tafaro, McCranie Sistrunk Anzelmo Hardy McDaniel & Welch, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

_JjThe plaintiff/appellant, Helen McKa-mey, appeals a judgment that granted a peremptory exception of prescription filed by the defendants/appellees, Global Experience Specialists, Inc. (“GES”); GES’s insurer, Greenwich Indemnity Insurance Company (“Greenwich”); American College of Cardiology (“ACC”); New Orleans Public Facility Management, Inc. (“NOPFM”); Ernest N. Morial New Orleans Exhibition Hall Authority (“ENM-EHA”); and Travelers Indemnity Company (“Travelers”), the insurer of the latter two entities. After reviewing the record and applicable law, we affirm the judgment.

This action was initiated on 26 March 2008 when Ms. McKamey filed suit against NOPFM and ENMEHA alleging they were liable to her for her injuries sustained on 26 March 2007, when she allegedly tripped and fell over carpet that had been rolled up and left on the floor of the Ernest N. Morial Convention Center during the dismantling of an exhibition. On 7 May 2009, NOPFM and ENMEHA filed an answer. Thereafter, they filed a motion for summary judgment on 4 May 2011, which was heard on 1 July 2011. At the conclusion of the hearing, the trial | acourt granted the summary judgment, and they were dismissed from the action with prejudice. No appeal was taken from their dismissal; however, one day before the hearing, the plaintiff filed a first amended petition, alleging additional claims against NOPFM and ENMEHA and adding new parties (GES, Greenwich, and ACC) to the action. Exceptions were filed to this amended complaint on behalf of NOPFM, ENMEHA, and Travelers; the amended complaint against them was dismissed, from which Ms. McKamey appealed.

By judgment dated 19 September 2012, this court affirmed the trial court’s rulings on the exceptions of no cause of action and res judicata. See McKamey v. New Orleans Public Facility Management, Inc., 12-0716 (La.App. 4 Cir. 9/19/12), 102 So.3d 222. Therefore, all causes of action against NOPFM, ENMEHA, and Travelers were dismissed. The new parties had neither been served nor appeared at the time of the hearing of the original motion for summary judgment.

Ms. McKamey then filed a second amended petition against NOPFM and ENMEHA, as well as against GES, Greenwich, and ACC. Service was made on only GES and Greenwich. To join issue and get this matter resolved, ACC waived service and filed an answer and exceptions; GES and Greenwich also filed exceptions to the second amending petition. At the hearing on the exceptions, the court and the parties agreed any ruling should be deferred until this court ruled on the appeal filed by Ms. McKamey. Following our affirmation, the exceptions were Isheard and granted with the remaining defendants being dismissed with prejudice. Ms. McKamey now appeals from this judgment.

The basis of the plaintiffs appeal is that the later-named parties are solidarity liable with the timely-named defendants. However, solidary liability no longer exists in Louisiana. The Louisiana Legislature amended both La. C.C. art. 2323 and 2324(B) by 1996 La. Acts. No. 3, part of the Tort Reform Act. The 1996 amendment to La. C.C. art. 2324(B) changed the law, providing that in applicable cases, liability among tortfeasors shall be joint and divisible, not solidary. This was the law in effect at the time of McKamey’s accident.

Suit was originally brought against NOPFM and ENMEHA exactly one year following the accident. The first amended petition added GES, ACC, and Travelers, and asserted a new cause of action against the original parties for “failure to properly notice [sic] the additional defendants of the petitioner’s claims.” The amended petition was filed on 30 June 2011, one day before the hearing on the motion for summary judgment filed by NOPFM and ENMEHA; the original claims against these two parties were dismissed with prejudice on 18 July 2011. No appeal was taken from that judgment, and it is final. NOPFM and ENMEHA were dismissed before service of citation was made on the additional parties.

In Renfroe v. State Department of Transp. and Development, 01-1646, p. 4 (La.2/26/02), 809 So.2d 947, 950, the Court stated:

|4Pelictual actions are subject to a li-berative prescriptive period of one year, which commences to run from the date the injury is sustained. La. C.C. art. 3492.
Under La. C.C. art. 3462, prescription is interrupted by the commencement of suit against the obligor in a court of competent jurisdiction and venue. Further, the interruption of prescription by suit against one solidary obligor is effective as to all solidary obligors. La. C.C. arts. 1799 and 3503. The same principle is applicable to joint tortfeasors. La. C.C. art. 2324C. However, a suit timely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs, since no joint or solidary obligation would exist. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). Because the timely sued defendant ... was dismissed from the suit, prescription against [the remaining defendants] is not interrupted and plaintiffs suit against them has prescribed, unless some other basis to revive this suit is found. [Emphasis supplied.]

In the instant matter, NOPFM and ENMEHA were timely sued but ultimately found not to be liable to Ms. McKamey. Therefore, the additional parties, joined more than one year after the date of the accident, were not timely sued. The trial court was correct when it granted their exceptions of prescription.

The plaintiff also argues that the amending petitions adding the new parties after the one year had run relates back to the original timely-filed petition.

La. C.C.P. art. 1153 states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In Hodges v. Republic Western Ins. Co., 05-0245 (La.App. 4 Cir. 12/14/05), 921 So.2d 175, 178, quoting Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983), this court outlined the criteria adopted by the Louisiana Supreme Court for [¡^determining whether an amendment that changes the identity of a defendant, will be allowed to relate back under La. C.C.P. art. 1153:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and
(4)The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have prescribed.

First, we note that the plaintiff did not change the identity of the defendants; wholly new defendants were added well after one year had lapsed from the date of the alleged accident. No evidence exists that the plaintiff was barred or otherwise prevented from obtaining the names of all the parties within the one year following the accident. In addition, no relationship existed between the timely-sued defendants and those added after the prescriptive period had run. Thus, we also find that this argument has no merit.

Based on the foregoing, we affirm the judgment of the trial court dismissing with prejudice all named parties from this lawsuit based on prescription.

AFFIRMED.

LOBRANO, J., concurs with reasons.

LOB RANO, J.,

concurs with reasons.

hi respectfully concur in the majority’s affirmation of the trial court’s judgment dismissing with prejudice all named parties from this lawsuit based on prescription. However, I disagree with the majority’s finding that “no relationship existed between the timely-sued defendants and those added after the prescriptive period had run.” A contractual relationship existed between the New Orleans Public Facility Authority/Ernest N. Morial and New Orleans Exhibition Hall Authority,(“NOPFM/ENMEHA”), and the added defendant, American College of Cardiology, (“ACC”). Nonetheless, there is insufficient evidence on appeal to determine whether the closeness of the business relationship between these parties is such that the institution of the action against NOPFM/ ENMEHA serves to provide notice of the action against ACC. See Findley v. City of Baton Rouge, 570 So.2d 1168, 1172 (La.1990) (where the court held that when there is an identity of interests and a close business relationship between the original timely-sued defendants and added defendant, the amended petition relates back for the purposes of prescription under La.Code Civ. Proc. Art. 1158 to the date of filing of the original petition because the filing of a petition against one serves to provide notice of litigation to the other, noting that “Rule 15(c) was amended for the purpose of preventing unjust results when a plaintiff, confronted with a maze of closely related corporate or governmental entities, initially chooses the wrong one to sue ... ”).

      . The exceptions that were filed by the defendants are not a part of the record. The record reflects that a peremptory exception of prescription was filed, but the "other exceptions” are unknown. Because the trial court discussed only the exception of prescription at the hearing, and this exception is the only issue presented by Ms. McKamey, we find that the "other exceptions” are not before us.


text:
    STATE of Louisiana v. David John MERRILL.
    No. CA 14-530.
    Court of Appeal of Louisiana, Third Circuit.
    June 11, 2014.

      Lewis H. Pitman Jr., Attorney at Law, New Iberia, LA, for Defendant/Appellee, David John Merrill.
    Jacques Joseph Cousin, Jr., Cousin & Cousin, New Iberia, LA, for PlaintiffAp-pellant, State of Louisiana.
    Walter James Senette, Jr., ADA — St. Mary Parish, Franklin, LA, for Plaintiff/Appellant, State of Louisiana.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

L.The plaintiff, State of Louisiana (State), appeals the judgment denying its petition to challenge the qualifications of the defendant, David John Merrill (Mr. Merrill), and to remove him from public office. Having found no error on the part of the trial court in applying the law, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court erred in interpreting and applying the pertinent law in denying the State’s petition to disqualify and remove Mr. Merrill from the public office he holds.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Merrill is an elected official currently serving his second term as a City of New Iberia councilman in District 4. Mr. Merrill was first commissioned in January 2009. He ran unopposed in October 2012, was re-elected, and began serving his second term in January 2013. In August 2013, the Iberia Parish District Attorney’s Office, on behalf of the State of Louisiana, filed a petition challenging Mr. Merrill’s qualifications to serve in public office and seeking to remove him based upon a 2003 drug arrest and guilty plea.

The facts are not in dispute. In April 2003, Mr. Merrill was arrested and pled guilty to possession of marijuana, a misdemeanor, and to possession of cocaine, a felony. In accordance with his plea agreement under La.Code Crim.P. art. 893, the trial court did not impose sentence upon Mr. Merrill but placed him in the Sixteenth Judicial District Drug Court program on supervised probation. Mr. | sMerrill completed the program and, in 2005, filed a motion to dismiss and expunge the arrest, prosecution, and conviction which forms the basis of this suit. On June 14, 2005, Assistant District Attorney R. Vines, for the Parish of Iberia, signed the form entitled ‘Waiver of Objection to Motion to Dismiss and Expunge.” The order of dismissal and expungement was granted on June 15, 2005.

Expungement does not prevent certain agencies from obtaining records that have been removed from public access. The Iberia Parish District Attorney’s Office is such an agency. On August 14, 2013, in conjunction with the present civil suit, it filed a motion for production of the 2003 record of the criminal proceeding, docketed as 03-668 in the Sixteenth Judicial District Court in the Parish of Iberia. The record does not contain - any evidence that the District Attorney’s Office sought to investigate Mr. Merrill’s qualifications for office before or after his first election in 2009, nor any information regarding the reason for the District Attorney’s petition to remove him eight months into his second term.

The State’s basis for its petition is La. Const, art. 1, § 10, which disqualifies an individual with a felony conviction from running for public office if the person has not received a governor’s pardon, or if fifteen years have not passed since the completion of the sentence imposed. Mr. Merrill’s position is that the dismissal and acquittal granted him under La.Code Crim.P. art. 893 and the expungement and restoration of rights granted to him under La.R.S. 44:9 prevents his disqualification. Where no facts are in dispute, we review the trial court’s application of the pertinent law.

Jill.

STANDARD OF REVIEW

Questions of law involving the correct interpretation of legislation are reviewed de novo, without deference to the legal conclusions of the trial court. Durio v. Horace Mann Ins. Co., 11-0084 (La.10/25/11), 74 So.3d 1159. Whether a trial court was legally correct in its interpretation and application of the felony ex-pungement statute is reviewed de novo to determine whether the lower court was legally correct. State v. Jenkins, 12-815 (La.App. 3 Cir. 12/12/12), 103 So.3d 1292, writ denied, 13-96 (La.6/14/13), 118 So.3d 1081.

IV.

LAW AND DISCUSSION

The State contends that the pivotal issue in this case is a conflict between the disqualifying provisions of La. Const. art. 1, § 10 and the acquittal and expungement provisions of La.Code Crim.P. art. 893 and La.R.S. 44:9. It cites State v. Gibson, 12-1145 (La.1/29/13), 107 So.3d 574, as support for its position that, when there is such a conflict of laws, the Louisiana Constitution will always prevail. While this general precept is true, we find no conflict between the constitutional article and the codal and statutory provisions under review in this case.

“It is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose.” City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548, p. 20 (La.10/1/07), 986 So.2d 1, 17 (citations omitted). Therefore, “courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless Land sur-plusage if a construction giving force to, and preserving, all words can legitimately be found.” Id. In order to give every word meaning, we should consider the law in its entirety in pari materia with other laws concerning the same subject matter. See Fulmer v. State, Dept. of Wildlife and Fisheries, 10-2779, p. 9 (La.7/1/11), 68 So.3d 499, 505. When considering La. Code Crim.P. art. 893, La.R.S. 44:9, and La. Const, art. 1, § 10, in pari materia, we find that Mr. Merrill is not a convicted and sentenced felon within the meaning of La. Const. art. 1, § 10.

More specifically, Article 1 of the Louisiana Constitution is entitled “DECLARATION OF RIGHTS.” Section 10, entitled “Right to Vote; Disqualification From Seeking or Holding an Elective Office,” addresses the rights of citizens to vote and to run for public office; and it addresses the temporary suspension of those rights for a person who has been convicted and sentenced for a felony offense. Louisiana Constitution Article 1, Section 10 (emphasis added), provides as follows:

(A) Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony.
(B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such | fiauthority to pardon in the place where the person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a felony.
(C) Exception. Notwithstanding the provisions of Paragraph (B) of this Section, a person who desires to qualify as a candidate for or hold an elective office, who has been convicted of a felony and who has served his sentence, but has not been pardoned for such felony, shall be permitted to qualify as a candidate for or hold such office if the date of his qualifying for such office is more than fifteen years after the date of the completion of his original sentence.

Based upon the foregoing, a person who has had a felony conviction, in general, must wait fifteen years from the end of his served sentence before he can qualify to run for public office, unless he has received a governmental or presidential pardon. However, all of the above subparts of Section 10 apply to an individual who was sentenced and served a sentence following a conviction for a felony offense. Mr. Merrill was never sentenced. Because of the nature of the felony, and his entry into the drug court program under La.R.S. 13:5304, his case was dismissed and he was acquitted under La.Code Crim.P. art. 893(E). Further, his record was expunged under La.R.S. 44:9 with a full restoration of rights. Mr. Merrill appears to be the first elected official in appealed litigation whose acquittal and ex-pungement were accomplished by a legitimate application of La.Code Crim.P. art. 893. Thus, whether La.Code Crim.P. art. 893, properly applied, is in conflict with La. Const, art. 1, § 10, is a matter of first impression.

Louisiana Code of Criminal Procedure Article 893 is now entitled “Suspension and deferral of sentence and probation in felony cases.” When it was |7enacted in 1966, the title did not contain “and deferral,” which was added in 1996 when a new paragraph (then D, now E) was enacted “authorizing deferment of imposition of a sentence after conviction of a first offense noncapital felony.” La.Code Crim.P. art. 893, Historical and Statutory Notes. It is clear that Mr. Merrill’s sentence was deferred, not suspended, which is significant, as the statute and the interpreting jurisprudence make important distinctions between the two. While the paragraphs addressing the suspension of sentences are not applicable to Mr. Merrill’s case, we will briefly discuss Paragraph (A) for comparison purposes. The deferral of Mr. Merrill's sentence in 2003 falls squarely under current Paragraph (E), including the sub-paragraphs added in 2008 with retroactive effect. Paragraphs (A) and (E) of La. Code Crim.P. art. 893 (emphasis added) provide in pertinent part:

A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole.... The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal. ...
E. (l)(a) Wdien it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the | «probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumu-lation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.
(3)(a) When a case is accepted into a drug court division probation program pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary period the court finds that the defendant has successfully completed all conditions of probation, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant’s sentence was suspended under Paragraph (A) of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses.
(c) Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of R.S. 44:9 and may occur only once with respect to any person.

Thus, Paragraph (A) provides generally for the suspension of sentences for first and second noncapital felony convictions but does not provide for dismissal of the convictions and acquittal after the probationary period. And it specifically states that “the suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.”

By contrast, Paragraph (E) provides for the deferral of a sentence for a first offense only, with a setting aside of the conviction and a dismissal of the 19prosecution which “shall” have the same effect as an acquittal. However, even when expunged from public access, the records of felony convictions can never be destroyed as they are needed to prevent repeated use of the statute and to determine status if the person offends again, which is not at issue here. See La.Code Crim.P. art. 893; La.R.S. 44:9; La.R.S. 13:5304. As indicated, Paragraph (E) does not contain the language that equates a “deferral” with a “sentence” because a deferred sentence is one that has never been imposed. In addition to the dismissal and acquittal granted under Paragraph (E) of La.Code Crim.P. art. 893, Mr. Merrill obtained an expungement of his record under La.R.S. 44:9, which provides in subpara-graph (E)(1) (emphasis added):

(b) After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894-

As previously discussed, the only condition on the acquittal granted in Article 893, which applies to felonies only, is that the dismissed conviction can be used for purposes of deciding penalties in the case of a multiple offender. The reference to Article 894 is inapplicable as it applies to misdemeanors only. In further support of the defendant’s restoration of rights in La.R.S. 44:9(E)(l)(b) above, La.R.S. 44:9(1) provides that expungement relieves the person from having to disclose that he was arrested or convicted for the subject offense or that his record was expunged, except as to entities listed in subsection G.

]10In numerous cases not involving drug division programs, the courts have denied expungement claims because the first offender’s sentence was found to have been imposed and suspended rather than deferred under La.Code Crim.P. art. 893. See, e.g., State v. Hodge, 38,796 (La.App. 2 Cir. 8/18/04), 880 So.2d 983; State v. Oliver, 38,520 (La.App. 2 Cir. 5/12/04), 874 So.2d 365; State v. Tumblin, 03-1193 (La.App. 5 Cir. 2/23/04), 868 So.2d 902; and State v. Williams, 11-708 (La.App. 3 Cir. 2/1/12), 82 So.3d 1290. For those cases, dismissal and acquittal under La.Code Crim.P. art. 893, which was prerequisite to expungement under La.R.S. 44:9(E), was only available if the defendant’s sentence had been deferred. Deferral was the key to dismissal and expungement, and the courts looked hard at the criminal proceeding to determine whether dismissal was appropriate.

Two such cases dealt with candidates for public office. In Horton v. Curry, 45,871 (La.App. 2 Cir. 7/22/10), 44 So.3d 830, a candidate for the office of police chief was disqualified under La. Const, art. 1, § 10, on the basis of his felony conviction for illegal possession of stolen things. In affirming disqualification by the district court, the second circuit found that the judge in the 2007 criminal proceeding had imposed and then suspended Curry’s sentence, rather than opting to defer sentencing. The court further found that the 2009 amended judgment failed to dismiss the conviction and order expungement of the record because it did not declare that the 2007 prosecution was dismissed pursuant to the statutory provision that triggers the restoration of all rights lost or suspended by the felony conviction. In determining that the amended judgment was also insufficient to Incorrect the sentence under La. Code Crim.P. art. 881.1(A)(3), the second circuit stated:

The procedures for the deferral of sentence under La.C.Cr.P. art. 893 E and the expungement of records under La. R.S. 44:9 are clearly spelled out in the statutes and have been the subject of much discussion in the jurisprudence; see, e.g., In re Elloie, 2005-1499 (La.1/19/06), 921 So.2d 882. Likewise, La.C.Cr.P. art. 881.1 A(3) sets out the proper procedure by which a person convicted of a felony may correct an error in the imposition of his original sentence regarding the deferral of sentence under La.C.Cr.P. art. 893 E.
Indeed, it appears that the 2007 sentence was imposed under La.C.Cr.P. art. 893, but the sentence was imposed under Section A of that statute, not Section E. The trial court imposed sentence but suspended the hard labor portion of the sentence in favor of probation. The 2009 judgment does not order the 2007 judgment of conviction to be amended to reflect that sentence was deferred under La.C.Cr.P. art. 893 E nor does it otherwise declare that Curry was entitled to the benefits of that article per La. C.Cr.P. art. 881.1 A(3).

Horton v. Curry, 44 So.3d at 836 (emphasis added). In conclusion, the second circuit stated:

Because the 2009 judgment does not actually set aside Curry’s felony conviction pursuant to La.C.Cr.P. art. 893 E, Curry is not entitled to the benefits of La. R.S. 44:9 E | ^provided to persons whose convictions [sic] have been dismissed, including the restoration of rights.
Since the 2009 judgment amending Curry’s 2007 judgment of conviction and sentence is ineffective as a deferral under La.C.Cr.P. art. 893 E that could arguably allow him to qualify as a candidate for public office for purposes of La. Const. Art. 1, § 10, the judgment of the district court is affirmed at appellant’s cost.

Id. at 837 (emphasis added).

Similarly, the second circuit, in an earlier case, affirmed the disqualification of a candidate for the city council in Turner v. James, 37,405 (La.App.2d Cir.2/27/03), 840 So.2d 662, writ denied, 03-0618 (La.3/3/03), 839 So.2d 20. James pled guilty to attempted obstruction of justice in 1989. When his candidacy was challenged in 2003, he filed a “Motion for Benefit of Article 893” and obtained an “Order Providing for 893 Benefits” according to the court’s minutes. The minutes of court for the 1989 conviction were also amended to show “charge of Attempted Obstruction of Justice: Dismissal of the Prosecution by the State of Louisiana. Accordingly the conviction is hereby set aside and the prosecution is dismissed.” Id. at 663.

In affirming the trial court’s disqualification of James for candidacy under La. Const, art. 1, § 10, the second circuit found that the record did not contain a copy of the motion and the order for 893 benefits that were referenced in the minutes. The court further found that the criminal court judge who signed the order could not validly set aside James’s conviction and dismiss the prosecution because the sentence had actually been imposed and suspended, not deferred under Article 893(D) — (now E). Thus, his argument that he had been acquitted under Article 893 was rejected. However, the court stated: “[W]e do not reach the 11squestion of the effect of a legitimate art. 893 proceeding on the qualifications for an elected office.” Id. at 665 n. 2 (emphasis added).

In the present case, we have a legitimate 893 proceeding. In the 2003 criminal proceeding, wherein Mr. Merrill was required to plead guilty in order to enter the court’s drug division probation program, the trial judge explained the range of “possible” sentences but made it clear that he was not imposing sentence. In addressing Mr. Merrill, the court stated: “In exchange for your guilty plea, I have agreed not to impose sentence but to place you on five years of probation, the main condition being that you enter into and successfully complete the drug court program together with these other conditions in your plea agreement.” Shortly thereafter, the court stated: “In accordance with your plea agreement, under Code of Criminal Procedure Article 893, I’m not going to impose sentence.” The court then went through the extensive requirements of the drug probation agreement. Ten years later, in the present civil proceeding, the same trial judge specifically referred to his prior adjudication as a deferral of Mr. Merrill’s sentence.

Therefore, because Mr. Merrill’s sentence was deferred, meeting the requirements of (E)(1) and (2), Mr. Merrill was properly granted a dismissal and acquittal under La.Code Crim.P. art. 893, and he was properly granted expungement and restoration of rights under La.R.S. 44:9(E). Additionally, Mr. Merrill obtained those benefits under 893(E)(3)(a), which was enacted in 2008 with retroactive effect, because in 2005 he had successfully completed the drug division probation program of La.R.S. 13:5304. This particular subparagraph relating to drug court probationers specifically provides for dismissal and acquittal, whether the probationer’s sentence was deferred under (E) or suspended under (A); |14and (E)(3)(c) again makes the acquittal effective for purposes of expungement under La.R.S. 44:9.

The requirements under La.R.S. 13:5304 are stringent, and probationers enter the program through the combined efforts of the District Attorney and the presiding judge after detailed interviews and determinations regarding eligibility. Pursuant to La.R.S. 13:5304(B)(ll)(a), the trial judge makes the final determination for entry into the program; pursuant to La.R.S. 13:5304(D)(l)-(2), the District Attorney makes the determination at completion regarding dismissal and acquittal pursuant to La.Code Crim.P. art. 893 and 894. Assistant District Attorney R. Vines made that determination in Mr. Merrill’s case on June 14, 2005, when he signed the “Waiver of Objection to Motion to Dismiss and Expunge.” In fact, the State in this case is not objecting to the fact or the validity of the deferral in Mr. Merrill’s ease or to the processes used.

Instead, the State’s assignment of error is based on a perceived conflict between the disqualification provisions of La. Const, art. 1, § 10, and the dismissal, acquittal, and restoration of rights provisions of La. Code Crim.P. art. 89B and La.R.S. 44:9. As previously indicated, La. Const. art. 1, § 10, repeatedly references felony convictions resulting in sentences imposed and served. No sentence was ever imposed upon or served by Mr. Merrill. In the only two cases discussing the same issues, Horton v. Curry and Turner v. James, the candidates were disqualified based upon the fact that sentences were imposed. The second circuit in those eases specifically limited their holdings and indicated that a legitimate deferral of sentence under Article 893 could allow the candidates to qualify for office under La. Const, art. 1, § 10.

|15We find no error on the part of the trial court in finding that the deferral, acquittal, and restoration of rights in Mr. Merrill’s case, removes him from the purview of La. Const, art. 1, § 10.

V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court with costs assessed to the appellant.

AFFIRMED.

      . The District Attorney's Office is not challenging the legitimacy of the application of La.Code Crim.P. art. 893 or the expungement granted under La.R.S. 44:9 in Mr. Merrill's case. Its position is that the relief granted by this legislation is in conflict with La. Const, art. 1, § 10.

      . (3) In the event a defendant alleges mutual mistake in that the sentence imposed upon conviction pursuant to Code of Criminal Procedure Article 893 was in error and the prosecuting authority, the court, and the defendant intended that the imposition of sentence was to be deferred pursuant to Code of Criminal Procedure Article 893(E), such defendant may file a motion to reconsider the sentence for the sole purpose of considering that issue. Such motion shall be filed within two years of the date of successful completion of the probation imposed by the court. If the court finds that a mutual mistake exists and that the defendant was in all other respects eligible for the benefits of Code of Criminal Procedure Article 893(E), the defendant shall be entitled to the benefits thereof, in accordance with law.
      La.Code Crim.P. art. 881.1(A)(3).