author: JOHNSON, J.

text:
    STATE of Louisiana v. Kenneth E. HICKS, III
    NO. 16-KA-462
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Orenthal J. Jasmin
    COUNSEL FOR DEFENDANT/APPELLANT, KENNETH E. HICKS, III, Bruce G. Whittaker
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

| defendant, Kenneth E. Hicks, III, appeals his conviction for second degree murder rendered in the 40th Judicial District Court, Division “B”. For the following reasons, we affirm Defendant’s conviction and sentence and remand the matter for correction of the Louisiana Uniform Commitment Order.

FACTS AND PROCEDURAL HISTORY

On April 15, 2013, the St. John the Baptist Grand Jury indicted Defendant, with second degree murder, in violation of La. R.S. 14:30.1. Defendant was arraigned and pleaded not guilty on April 16, 2013. On January 20-22, 2016, the ease was tried before a 12-person jury.

At trial, Dontae Bond, Defendant’s nephew, testified that on the night of February 20, 2013, he was at Alex’s Sports Bar with two friends. While having drinks and talking to people in the patio area of the bar, he heard a gunshot. Mr. Bond looked back and saw Defendant holding a gun, and he also saw a man on the ground. He did not see anyone else in that room with a gun after the gunfire. Mr. Bond identified the victim as his friend, “Turk.” He asserted that he and Defendant were not together that night, but he and Defendant were in the bar at the same time.

Mr. Bond testified that after the shooting, he and his friends left. They drove around and then went to Defendant’s house. Mr. Bond stated that he spoke to Defendant and asked him what happened, after which Defendant said, “Don’t say nothing.” The police arrived afterwards. Mr. Bond indicated that the police arrested him in connection with the shooting, and he gave three statements to them. He said he initially told them he did not know anything, but ultimately he told the police what happened because he did not want to be charged with a crime he did 1 ?not commit.

Wilfred Lewis testified that on February 20, 2013, he also was in Alex’s Sports Bar. He stated that he arrived at 10:15 p.m., after which his friend, “Turk,” asked him to give him a ride home. Mr. Lewis sat in the patio area of the bar and waited while “Turk” helped his uncle, the owner of the bar, clean the area. While sitting there, Mr. Lewis heard a voice and then “Turk’s” voice, after which Mr. Lewis looked down for a second and then heard a shot. Mr. Lewis testified that when he looked up, he saw “Turk” spin around and fall on a table. A man, whom he later identified as Defendant, turned around and had a gun in his right hand. Defendant put the gun in his pocket. Mr. Lewis explained that when Defendant passed by him to leave, he brushed against Defendant. Defendant then turned around and pointed a gun at Mr. Lewis, and Mr. Lewis held up his hands begging Defendant not to shoot him. Mr. Lewis testified that Defendant subsequently backed out the screen door, walked to a car across the street, and left the scene.

Mr. Lewis recalled that Defendant was not upset and had no emotional response after the shooting. He stated that he did not know Defendant’s name, but he would never forget his face. He also stated that no one else had a gun that night. Mr. Lewis was positive that Defendant was in the bar that night, and Defendant shot “Turk.” Mr. Lewis admitted that he had seven convictions for possession of cocaine and other non-drug convictions. Mr. Lewis insisted that no one made promises to him for his testimony.

The victim, Anthony Young, died as a result of the shooting. Dr. Samantha Huber, who was accepted as an expert in forensic pathology, testified that she performed the autopsy on the victim. She determined that the cause of death was a gunshot wound to the inner aspect of his left eye with a bullet going through the base of his skull through his brain and coming to rest in a fracture at the back right of his skull. Dr. Huber stated that she retrieved the projectile and gave it to a crime Rscene technician. Dr. Huber testified that the gunshot wound was from an intermediate range of six inches to two feet away. She further stated that the toxicology report reflected that there was cocaine and alcohol in the victim’s system. Dr. Huber asserted that there was evidence of recent drug use because there was “parent cocaine” in his blood.

Detective Michael Pugh of the St. John Parish Sheriffs Office crime scene division testified that on the night of February 20, 2013, he responded to a call involving a homicide at Alex’s Sports Bar. When he arrived, he collected evidence and,took photographs. He identified the contents of the victim’s pockets, which included cocaine. Detective Pugh stated that he searched Defendant’s home but found no guns or ammunition inside. He further stated that he searched the Nissan vehicle parked in front of Defendant’s home and seized a 9mm Taurus handgun from the trunk and two phones from the interior of the vehicle. Detective Pugh asserted that he collected a Winchester .45 caliber shell casing from the floor of the bar. He maintained that no gun was ever found that linked Defendant to the crime.

Detective Walter Stevens, Jr. of the St. John Parish Sheriffs Office testified that on February 20, 2013, he responded to a call involving a homicide at Alex’s Sports Bar. His investigation led him to arrest Defendant and Mr. Bond. Defendant did not give a statement and wanted an attorney. Mr. Bond initially denied knowing anything but later admitted that Defendant shot the victim. Detective Stevens testified that Mr. Lewis later contacted him and positively identified Defendant in a photographic lineup as the shooter. He further testified that Mr. Lewis'also positively identified Mr. Bond as being present at the time of the shooting.

Detective Juan Watkins of the St. John Parish Sheriffs Office testified that |4he interviewed Mr. Lewis in connection with the homicide that occurred on February 20, 2013. Mr. Lewis recounted the events of the evening in question to the detective. Detective - Watkins presented Mr. Lewis with a photographic lineup, after which Mr. Lewis positively identified Defendant.

Laneka Frank-Hicks, Defendant’s wife, provided an alibi for Defendant. She testified that on February 20, 2013, at 9:15 p.m., she contacted Defendant and told him that she was on her way home. She arrived home at 9:30 p.m. When she got inside, Defendant was sitting on the sofa, watching television and eating. Mrs. Frank-Hicks testified that she got in the bathtub at 10:00 p.m., and she and Defendant went to bed no later than 11:00 p.m. She recounted that at approximately 2:30 a.m., her daughter called and told her the police were looking for her and Defendant. Mrs. Frank-Hicks explained that she heard a knock at the door, and when she opened it, officers were present. She further explained that the police subsequently obtained a search warrant and searched her house and her vehicle. Mrs. Frank-Hicks testified that she told an officer that Defendant told her he had gone to Alex’s Sport’s Bar earlier that day.

Detective Stevens testified in rebuttal that when he went to Defendant’s house, he observed four black males congregated around a Nissan Maxima vehicle, and Defendant was standing right by the vehicle. He further testified that when he informed Defendant that he and the other subjects were to come with him to the Criminal Investigations Division for an interview, Defendant wanted to notify his wife that he was going to be leaving with them. Detective Stevens testified that he believed Defendant knocked on the bedroom door to awaken his wife, and she followed them outside.

At the conclusion of the presentation of evidence at trial, the jury found Defendant guilty as charged. On February 16, 2016, Defendant filed a Motion for New Trial, which was denied on February 22, 2016. Also on February 22, 2016, [¡¡Defendant waived sentencing delays, after which the trial judge sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Subsequently, Defendant filed a Motion for Appeal, which was granted. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the trial court erred by prohibiting the jury from learning of the victim’s criminal conviction record, which denied him his Sixth Amendment right to present a defense, and 2) it was an error for the prosecutor to personally attack defense counsel in closing argument by suggesting that his defense amounted to a denigration of the value of the life of the victim.

LAW AND ANALYSIS

Victim’s Criminal Record

Defendant argues the trial judge erred by prohibiting him from presenting to the jury reliable evidence of the victim’s felony conviction record, as that evidence was relevant and probative to his defense. Defendant asserts that, since his defense was that he did not kill anyone and this was not a claim of self-defense, it was error to prohibit him from presenting such evidence where the record tended to support the defense that other individuals may have had a motive to kill the victim. He claims that the victim was a convicted felon with a long record of narcotics distribution, a notoriously violent activity, and that, at the time of his death, he was carrying cocaine on his person packaged for retail distribution and was intoxicated on the drug. Defendant contends that the trial judge’s ruling excluding this evidence violated his Sixth Amendment right to present a defense.

The State responds that the trial judge’s ruling in this matter was proper. The State further responds that the victim’s criminal conviction record is inadmissible because there has been neither a claim of self-defense nor a claim of an overt act on the part of the victim.

IfiThe record reflects that Defendant filed a Motion in Limine to Admit Evidence of Victim’s Criminal Convictions. In that motion, Defendant moved the trial court for a pre-trial ruling allowing admissibility of the victim’s criminal convictions, as supplied by the St. John Parish Clerk of Court, and the victim’s rap sheet, which was furnished by the District Attorney’s Office. Defendant asserted in his motion that no motive had been ascribed to Defendant to explain the victim’s killing by him. He stated that the victim was found with cocaine in his blood and urine and with cocaine and other drugs on his person. Defendant also stated that the victim had at least three felony convictions for drug distribution, as well as illegal discharge of a weapon, simple possession of marijuana and paraphernalia, and was scheduled to be in court the day following his death for proceedings in St. John case no. 2012-CR0190 “A,” for “aggravated assault on a police officer.” Defendant noted in his motion that the Sheriffs Office failed to send the drugs found in the victim’s possession to the State Crime Lab until the defense filed a motion for the testing and requested a court hearing on the matter. He contended that he had a fundamental right to present a defense that included the presentation of circumstances that were relevant in the context of this case.

On September 2, 2015, Defendant filed a Memorandum in Support of Defendant’s Motion in Limine to Introduce Victim’s Rap Sheet at Trial. In that memorandum, citing La. C.E. art. 406, Defendant stated that he desired to introduce evidence of the victim’s criminal convictions showing that the victim had a habit and routine practice of conducting narcotics transactions, with the attendant dangers therein. He listed the convictions as follows: (1) St. John Case No. 2000-CR-543, on September 5, 2002, the victim pleaded guilty to possession of cocaine; (2) in St. John Case No. 1997-CR-153, on November 3, 1997, the victim pleaded guilty to distribution of cocaine; (3) in St. John Case No. 1996-CR-483, the victim pleaded guilty to illegal discharge of a weapon; (4) in St. John Case |7No. 2001-CR-555, the victim pleaded guilty to possession of marijuana and possession of paraphernalia; and (5) in St. John Case No. 2005-CRr-452, the victim pleaded guilty to possession with intent to distribute cocaine. Defendant notes that this list of convictions was taken from the St. John Clerk of Court’s database and did not include any convictions that might have occurred outside St. John Parish.

In that memorandum, Defendant also asserted that the State’s principal witness, Dontae Bond, had several convictions involving crimes of violence by firearm and that the persons accompanying Mr. Bond on the night of the murder, “Snowman” and “Clickem,” each had several drug violation convictions. Defendant maintained that the purpose for the introduction of the victim’s criminal convictions was to bolster his defense that the victim’s habitual and routine criminal behavior involving illegal drug transactions created a situation where a jury could find the victim had many enemies. He further maintained that, in the absence of a motive, forensic evidence, or eyewitness testimony, presentation of such evidence was relevant to establish reasonable doubt that Defendant was the aggressor. Defendant noted that he had no interest in establishing the vie-tim’s bad character but rather the life the victim had chosen to live was a circumstance Defendant should have been allowed to exhibit to the jury.

The State filed a Memorandum in Opposition of Defendant’s Motion in Limine to Introduce Victim’s Rap Sheet at Trial on September 25, 2015. In its memorandum, the State argued that the victim’s alleged lifestyle of drug distribution, use, and abuse and weapons could easily be viewed by a jury as dangerous character that should not be admissible at trial. The State further argued that there is no indication of a hostile demonstration or overt act by the victim at the time of the offense. As such, the State contended that under La. C.E. art. 404(A)(2), such evidence was inadmissible.

On September 29, 2015, the trial judge issued a written judgment with |8Reasons ruling that the victim’s criminal record was inadmissible. The trial judge stated in pertinent part:

In the instant case, the victim’s criminal record is not relevant because Defendant is not claiming self-defense nor has an “overt act” by the victim been alleged. Defendant has not laid a foundation supporting any relevance of such character evidence. There was no showing made that Defendant was aware of the victim’s criminal record. Moreover, the victim’s criminal record, as alleged by Defendant, does not include any prior specific incidents of aggression conducted by the victim, but rather it specifies only acts of conducting narcotics transactions. Accordingly, evidence of the victim’s criminal record offered for the purpose of explaining defendant’s state of mind should be excluded, as the victim’s alleged drug habit is not relevant to prove a violent habit existed that was a routine practice or to defend Defendant’s case. LSA C.E. art. 406. Comment (b) of La. C.E. art. 406 provides that this code article is included in order to distinguish treatment of habit and routine evidence from that of character evidence, which generally is inadmissible. Therefore, the victim’s criminal record is not admissible.

The trial judge concluded:

Defendant bears the burden of laying a foundation to support the relevance of such character evidence .to prove why disclosure of the victim’s criminal record is necessary, and this Court finds that he failed to meet his burden. After considering Defendant’s motion and balancing the competing interests, this Court concludes that Defendant’s need for disclosure of the victim’s criminal record and its admissibility at trial is not essential to a fair trial.

After he was convicted, Defendant filed a motion for new trial, arguing inter alia, that the trial judge erred by denying his motion to admit the victim’s rap sheet. Defendant contended that had the victim’s criminal history been admitted, the jury may well have considered that the shooting involved a drug deal gone bad, and the jury might have been swayed by the fact that Mr. Lewis had seven convictions for possession of cocaine, among other things. In his motion, Defendant asserted that La. C.E. art. 406 allowed evidence which is relevant to prove that the conduct of a person on a particular occasion was in conformity with habit or routine practice. Defendant further asserted that his effort to identify the habit or routine practice by way of presentation of a long criminal history of convictions should have been granted.

In At the hearing on the motion, Defendant made arguments similar to those he made in his written motion for new trial, including arguments regarding the trial judge’s denial of his request for admission of the victim’s criminal convictions. The prosecutor responded that there was a pre-trial motion regarding the motion to admit the victim’s rap sheet, that the trial judge had denied it, and that he did not think Defendant sought review of that ruling. The trial judge subsequently denied the motion for new trial, stating in pertinent part:

The victim’s rap sheet, of course, is a little bit more of a, of a, I think, a fuzzy area but I don’t think that there is a, in my own mind, there’s a rational connection between the fact that he may have been in possession of drugs and had a history of possession of drugs and had a history of possession of drugs and possession of weapons—there was no claim of self-defense in this trial. So even if he had a reputation for having been armed in the past, I don’t know what, what that would have tended to show in the, in the trial because there was no issue of self-defense. Plus to be able to use it they would have had to, as I appreciate it, have had to been some display of an overt action on his step before, I mean on his part before that even could have been introduced under the Code of Evidence Article 404 A, I think it was. But I don’t see the connection between the mere certainly possession of drugs, which he was clearly, the evidence revealed had drugs on his person, as well as in his system. The jury, it if were so inclined, could have inferred something about his character from that. I don’t know how it could make the leap to infer that that somehow justified or mitigated a homicide.
Again, even the mere fact that he had a reputation or, I’m sorry, not a reputation, but a record, I guess, from one, from which one could have assumed a reputation for possession, possessing weapons, I don’t see how that could lead them to conclude that that justified a, or excused a homicide in the facts of this case. There’s,' there’s no evidence that there was, in fact, a gun or a weapon on, firearm on his person, so.

Both the Sixth Amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12); 102 So.3d 801, 813, writ denied, 12-1694 (La. 2/22/13); 108 So.3d 763. This right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by|inother legitimate considerations in the administration of justice. Id. The trial court is accorded great discretion in evidentiary rulings and, absent a clear abuse of that discretion, rulings regarding the relevancy and admissibility of evidence will not be disturbed on appeal. State v. Sandoval, 02-230 (La. App. 5 Cir. 2/25/03); 841 So.2d 977, 985, writ denied, 03-853 (La. 10/3/03); 855 So.2d 308.

La. C.E. art. 404(A)(2) governs admissibility of character evidence of a victim and states, in pertinent part:

(2) Character of victim, (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence •of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible, [footnote added].

In State v. Brown, 46,669 (La. App. 2 Cir. 2/29/12); 86 So.3d 726, writs denied, 12-0724 (La. 9/14/12); 97 So.3d 1016 and 14-0321 (La. 10/24/14); 161 So.3d 693, the defendant argued that the trial court erred by prohibiting him from presenting a full defense. He contended that critical to his defense was his ability to prove, through pertinent character traits of the victim and the victim’s criminal record, that other people had a motive to kill the victim. The appellate court found that a review of the record indicated that the trial court ruled that the defendant could not admit evidence concerning the criminal history of the victim unless he first laid a foundation supporting the relevance of such character evidence. The appellate court further found that the trial court did not prevent the defendant from presenting a defense, because the defendant failed to lay a foundation sufficient to support the admission of the victim’s criminal record. Id., 86 So.3d at 734-35.

In State v. Keating, 00-51 (La. App. 5 Cir. 10/18/00); 772 So.2d 740, writ denied, 00-3150 (La. 10/12/01); 799 So.2d 494, the defendant contended that the trial court violated his right to fully present a defense when it refused to allow him |nto put on evidence of the victim’s criminal convictions. This Court found that there was no evidence produced that the victim made a hostile demonstration or committed an overt act against the defendant at the time of the incident. Thus, this Court found that the trial court did not err in refusing to allow evidence of the victim’s prior convictions, citing La. C.E. art. 404(A)(2)(a). This Court further found that even assuming that the trial judge erred by excluding such evidence, the defendant was not prejudiced by the ruling since the jury heard testimony regarding the victim’s violent propensities as well as his criminal record. Id., 772 So.2d at 746-47.

In State v. Young, 99-1054 (La. App. 5 Cir. 2/16/00); 757 So.2d 797, the defendant argued that the trial court erred by not allowing him to introduce evidence of the character of Willie Henderson, a friend of the victim who was present at the time of the offense, particularly his propensity for violent behavior, pursuant to La. C.E. art. 404(A)(2). This Court found that a violation of the statute in question did not create a specific victim, but that even if Mr. Henderson was considered a victim for purposes of Article 404, the requirements for admission of character evidence under that article were not met. This Court stated that the testimony indicated that it was the defendant who committed the initial hostile act. It asserted that the trial court did not err in excluding the character evidence and that the defendant was not prejudiced by the ruling. This Court noted that the defendant testified that Mr. Henderson had been involved in several shootings and armed robberies and that Mr. Henderson had a gun with him every time he saw him. This Court found that the jury heard the defendant’s testimony and apparently rejected it. Id., 757 So.2d at 800-01.

In the instant case, as in Brown, Keat-ing, and Young, there was no evidence admitted at trial showing that the victim made a hostile demonstration or committed an overt act against Defendant at the time of the incident pursuant to | iaLa. C.E. art. 404(A)(2)(a). Defendant did not argue self-defense at trial; thus, evidence of the victim’s prior convictions was not relevant. Even assuming the trial judge erred in excluding the evidence in question, we find that Defendant was not prejudiced by the ruling. Although the trial judge did not allow court records of the victim’s convictions, the jury heard testimony that the victim had cocaine in his system and narcotics packaged in three plastic bags on his person at the time of his death. Also, even if evidence of the victim’s criminal convictions had been admitted into evidence, we find that it would not have made much difference, since there were two eyewitnesses who indicated at trial that Defendant shot the victim.

Therefore, we find that the trial judge did not err by refusing to allow evidence of the victim’s prior convictions.

Personal Attacks against Defense Counsel

Defendant argues that it was error for the prosecutor in closing argument to personally attack defense counsel by suggesting that his defense amounted to a denigration of the value of the life of the victim. First, he contends that the prosecutor’s claim was made in closing argument and was thus not in response to anything defense counsel said in argument. Second, Defendant asserts that the coroner testified to the presence of cocaine in the system of the victim in response to direct examination by the prosecutor. Third, he argues that the prosecutor cynically and falsely suggested that the victim was a mere casual user of cocaine when the prosecutor knew that the victim had done more than “make a mistake” but rather was a career offender with multiple cocaine distribution convictions on his record, a record that the prosecutor refused to let the jury see. As such, Defendant contends that the prosecutor’s argument was so improper as to warrant reversal.

The State responds that the prosecutor’s statements do not warrant a reversal of the trial court’s ruling. It further responds that the prosecutor’s comments were 1 ^merely a retort to defense counsel’s “crafty” method of suggesting that the victim engaged in long-term cocaine use. The State notes that the trial court properly addressed the prosecutor’s comments before the jury when the objection was raised by stating that he had already told the jury that it was their memory of what the testimony and the facts were that controlled. Lastly, the State asserts that Defendant has offered no jurisprudence to suggest that such comments constitute reversible error.

During closing argument, the prosecutor stated:

The defense has somehow tried to diminish him by suggesting, because he might have had some chemicals in his system, that somehow his life—

Defense counsel then objected to the photo of the victim with his daughter remaining on the screen. The objection was overruled.

The prosecutor continued, stating:

The defense subtly tried to, to suggest that maybe his life wasn’t worth so much or he’s dispensable because he had a substance in his system. Well, that’s not an element and it certainly is not appropriate to bring up, to suggest that somehow his life was less valuable. We all know people who make mistakes and that doesn’t mean that they should be murdered,

Defense counsel objected, stating that he never suggested or implied in any way that the victim’s life was not equally valuable to that of every other person. The prosecutor replied that this was closing argument. The trial judge told defense counsel that he had the right to respond, that this was argument, and that he had already told the jury “it’s their memory of what the testimony and the facts are that controls.” The trial judge then told the prosecutor to proceed.

The prosecutor subsequently stated in pertinent part:

As I, as I was saying, we all know people who have made mistakes but their lives are just as valuable. They’re family members, they’re friends, they’re people we know, and nobody’s lives should be taken for no reason, and that’s what happened in this case.

After he was convicted, Defendant filed a motion for new trial arguing, |14mter alia, that the trial judge erred by overruling defense counsel’s objection to the prosecutor’s personal attack on defense counsel. Defendant claimed that the prosecutor contended that defense counsel fashioned his defense on a theory that the victim’s life had no value because the victim was found possessing drugs. Defendant argued that his counsel never suggested this and that it was an ad hominem attack on his character calculated to prejudice the jury against the defense.

At the hearing on the motion, Defendant made arguments similar to those made in his written motion for new trial, including arguments regarding the prosecutor’s characterization of his defense as a character attack on the victim. The prosecutor responded that it was only argument and that he thought it prudent to. address the issue of drugs before the jury. He added that the jury was instructed that it was just argument and not facts and that it did not prejudice anyone. After hearing arguments of counsel, the trial judge denied the motion for new trial, stating in pertinent part:

The argument to the jury, while I understand and I recall counsel’s indignation about that, I do believe that that is certainly a tempest in a teapot. The jury was instructed that what, what counsel said was their contentions, it was not evidence, and I, I just don’t think that it, it was as important as the significance that Mr. Goza puts on. it.

The scope of argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case. La. C.Cr.P. art. 774. The argument shall not appeal to prejudice. Id. The State’s rebuttal shall be confined to answering the defendant’s argument. Id. However, a prosecutor retains “considerable latitude” when making closing arguments. State v. Taylor, 93-2201 (La. 2/28/96); 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). Further, the trial judge has broad discretion in controlling the scope of closing arguments. State v. Greenup, 12-881 (La.App. 5 Cir. 8/27/13); 123 So.3d 768, 775, writ denied, 13-2300 (La. 3/21/14); 135 So.3d 617.

Nevertheless, even if the State’s argument was improper, a conviction or sentence will not be reversed for improper closing argument unless the court is thoroughly convinced the remarks influenced the jury and contributed to. the verdict. Taylor, 93-2201; 669 So.2d at 375. The Louisiana Supreme Court has recognized that “much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Mitchell, 94-2078 (La. 5/21/96); 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996).

In the instant case, the record reflects that during the direct examination of the coroner, Dr. Huber, the prosecution elicited testimony that the toxicology report showed cocaine in the victim’s system. On cross-examination, defense counsel said that he had the impression that the cocaine metabolites found in the blood, urine, and fluid behind the eyes meant that the victim was engaged in both short and long-term use of that.drug. Dr. Huber testified that it was possible that the victim could have had some long-term use, but that the presence of cocaine metabolites in those areas did not necessarily mean there was long-term use. Also on cross-examination, defense counsel elicited testimony from Dr. Huber indicating that the victim had cocaine on his person at the time of his death. Dr. Huber testified that the coroner’s office wrote in the report that the sheriffs office had “coke” in evidence.

Additionally, during the cross-examination of Detective Pugh, defense counsel elicited testimony from him that State’s Exhibit 6 was the contents of the victim’s pocket. During cross-examination, Detective Pugh identified a Louisiana State Police Crime Laboratory evidence submittal form and testified that “E-6” was “a sealed evidence envelope with a clear plastic bag containing three clear |inplastic bags containing one white powder, second bag containing one white powder and the third containing a white pill.” Detective Pugh stated that it was sent to the State Police Crime Lab for a drug analysis but that he was not furnished any results.

After reviewing the foregoing testimony, we find that the trial judge properly addressed the prosecutor’s comments. The prosecutor was simply pointing out that the victim’s life had value, even if he was an illegal drug user. Additionally, the trial judge gave the jury the preliminary instructions that what the lawyers said in their closing arguments was not evidence. Further, during the jury instructions, the trial judge told the jury that they must decide the facts from the testimony and other evidence and then apply the law to those facts in reaching their verdict. The trial judge explained to the jury again that the closing arguments were not evidence.

Therefore, we do not find that the trial judge abused his discretion by effectively overruling defense counsel’s objections to the prosecutor’s closing argument comments.

Errors Patent Review

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

Post-Conviction Relief Advisal

The trial judge failed to properly notify Defendant of the two-year prescriptive period for filing an application for post-conviction relief, as required by La. C.Cr.P. art. 930.8(C). The transcript reflects that the trial judge advised Defendant that he had the right to file an application for post-conviction l-elief within two years of the time when his conviction became final.

This Court has held that the failure to advise a Defendant that the 117prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341 (La. App. 5 Cir. 10/26/04); 887 So.2d 596, 598. As such, by means of this opinion, we correct that error and inform Defendant that “no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of [La. C.Cr.P.] Article 914 or 922.” See State v. Drewery, 12-236 (La. App. 5 Cir. 1/20/13); 108 So.3d 1246, 1257.

Commitment

The State of Louisiana Uniform Commitment Order improperly reflects that Defendant was convicted of second degree murder in violation of La. R.S. 40:30.1. The correct statutory citation is La. R.S. 14:30.1. Also, the uniform commitment order improperly reflects that Defendant pleaded guilty when the record clearly shows that Defendant was convicted by a jury. As such, we remand this matter and order that the uniform commitment order be corrected to reflect the proper statutory citation and to reflect that Defendant was convicted by a jury. Furthermore, we direct the Clerk of Court for the 40th Judicial District Court to transmit the original of the corrected uniform commitment order to the officer in charge of the institution to which Defendant has been sentenced and the Department of Corrections’ legal department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2)).

DECREE

For the foregoing reasons, Kenneth E. Hicks, Ill’s conviction and sentence are affirmed. The matter is remanded to the trial court for correction of the Louisiana Uniform Commitment Order.

AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER

      . Amanda Roh, a former employee of the St. John Parish Sheriff’s Office, testified that Alex’s Sports Bar was located at 119 East 24th Street in Reserve, Louisiana.

      . Ms. Roh testified that the victim’s name was Anthony Young.

      . Dr. Huber testified that the coroner’s office wrote in the report that the Sheriffs Office had "coke” in evidence. Detective Pugh identified the contents of the victim’s pocket. He also identified “a sealed evidence envelope with a clear plastic bag containing three clear plastic bags containing one white powder, second bag containing one white powder and the third containing a white pill." Detective Pugh stated that it was sent to the Louisiana State Police Crime Lab for a drug analysis, but he was not furnished any results from that analysis.

      . La. C.E. Article 412 is not applicable to the instant case.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Rockey A. BURNHAM
    NO. 16-KA-468
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      Paul D. Conniek, Jr., Terry M. Bou-dreaux, Andrea F. Long, Lynn Schiffman, Marko Marjanovic, Counsel for Plaintiff/Appellee, State of Louisiana.
    Prentice L. White, Counsel for Defendant/Appellant, Rockey A. Burnham.
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

hln this appeal, defendant, Rockey Burnham, challenges the sufficiency of the evidence used to convict him of fourth offense driving while intoxicated. For the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter with instructions.

PROCEDURAL BACKGROUND

On June 9, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with fourth offense operating a vehicle while intoxicated, having received the benefit of parole, probation, or suspension of sentence on a previous fourth offense driving while intoxicated conviction, in violation of La. R.S. 14:98(A) and La. R.S. 14:98.4(C). At the arraignment, defendant pled not guilty.

The matter proceeded to trial before a twelve-person jury on April 18, 2016. After considering the evidence presented, the jury, on April 20, 2016, found defendant guilty as charged. Defendant thereafter filed a motion for post-verdict judgment of acquittal and a motion for new trial, in which he alleged generally that “there was insufficient evidence from which to convict.” On May 6, 2016, the trial court denied defendant’s two motions.

After defendant waived sentencing delays, the trial court sentenced him to imprisonment at hard labor for twenty years without the benefit of parole, probation, or suspension of sentence. Defendant thereafter filed a motion to reconsider sentence, which the trial court denied. Defendant now appeals.

FACTS

On the morning of April 28, 2015, Louis Dassau parked his commercial shrimping vessel, “Cajun Star,” at a dock at Dean Seafood Plant in Bayou Rigaud near Grand Isle, Louisiana. Mr. Dassau planned to go fishing that day, and defendant, who had worked on Mr. Dassau’s shrimping boat as a deckhand on and|2 off since 2007, was helping Mr. Dassau get the boat ready. Needing supplies for the day, Mr. Dassau positioned his boat in the crowded marina while defendant tied it to the pier, and Mr. Dassau headed to the store. Before he left, Mr. Dassau asked defendant, who had never previously piloted the vessel, to move the boat approximately fifty feet so that the boat could be loaded with ice.

At trial, Greg Blanchard, who helps to manage Dean Seafood, testified that he was standing on the dock as defendant moved Mr. Dassau’s boat. Mr. Blanchard speculated that the wind “pulled the bow out,” and therefore, as defendant turned the boat, he did not have enough room. Mr. Blanchard screamed at defendant to slow down and stop. He then saw defendant run to the back deck of the boat and pull the control lever backwards to go in reverse. As the lever controls had been improperly installed, the boat moved forward and hit another vessel and the dock. Mr. Blanchard and others grabbed a rope and tied the boat back to the dock.

Sergeant Ezekial Talbert, Jr., an agent with the Louisiana Department of Wildlife and Fisheries, responded to the scene after receiving a call from the Coast Guard to investigate a possible driving while intoxicated violation following a boating accident. Upon arriving at the scene, Sergeant Talbert spoke to defendant who advised him that he was operating the vessel at the time of the incident. According to Sergeant Talbert, defendant did not smell of alcohol, but he did have difficulty maintaining focus on the conversation. Sergeant Talbert recalled that as he spoke to defendant, defendant paused, stared, and asked the agent to repeat his questions. Sergeant Talbert further observed that defendant mumbled, slurred his words, and was “borderline incoherent.” In addition, Sergeant Talbert described that defendant was swaying and unsteady, unable to maintain his balance, and | ¡¡leaned against a post to stay upright. Based on his observations, Sergeant Talbert suspected that defendant was under the influence of some intoxicating substance and thereafter advised defendant of his rights. During their interaction, defendant informed Sergeant Talbert that he was a recovering drug addict and showed him a prescription for Suboxone. After ascertaining that defendant had not been injured in the accident, Sergeant Tal-bert began to administer the field sobriety testing. First, he performed the horizontal gaze nystagmus test and observed the involuntary jerking of defendant’s eyes, which occurs when an individual is intoxicated or under the influence. However, Sergeant Talbert was concerned about defendant’s safety and did not have him perform the one-legged stand test or the "walk and turn test as defendant “kept falling over” and was unable to maintain his balance. Based on his observations, Sergeant Talbert believed that defendant was under the influence, arrested him for driving while intoxicated, and transported him to the police station in Grand Isle.

At the police station, defendant executed an arrestee’s rights form relating to chemical testing, signed a consent form to give a blood sample, and was overall very cooperative. While there, Sergeant Talbert had defendant blow into an Intoxilyzer machine that recorded all zeroes, thereby confirming the agent’s belief that defendant was not intoxicated from consuming alcohol. In addition, defendant gave a blood sample and attempted to provide a urine sample but was unable to do so.

At trial, Cate Sanford, a crime lab analyst in the toxicology division at the Louisiana State Police Crime Lab, testified that she performed a toxicological analysis on defendant’s blood sample and reported that defendant’s blood contained diazepam, nordiazepam, and methamphetamine; however, Suboxone, which defendant claimed that he had taken, was not found in defendant’s blood.

^SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error on appeal, defendant argues that the trial court erred in denying his motion for post-verdict judgment of acquittal since-the evidence was insufficient for any rational trier of fact, viewing the evidence in the light most favorable to the .prosecution, to find the elements of the crime were proven beyond a reasonable doubt. Defendant points to several factors to support this argument. Specifically, he asserts that he was suffering from a debilitating back condition that required him to take prescription medication, and his pain, not alcohol consumption, caused his inability to complete the field sobriety tests. Further, defendant maintains that the boat’s incorrectly installed controls caused him to hit the dock and another vessel and that the windy weather conditions contributed to the accident. Defendant argues that the sole evidence presented against him was the agent’s testimony about his slurred speech and his inability to maintain his balance, and therefore, the evidence was insufficient to convict him. We find no merit to these arguments.

In reviewing the sufficiency of the evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Reeder, 15-68 (La.App. 5 Cir. 8/25/15), 189 So.3d 401, 406. Under the Jackson standard, a review of the record for the sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of | ¿fact could have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Reeder, 189 So.3d at 406-07. Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745.

In the present case, defendant was convicted of fourth offense operating a ve-hide while intoxicated, having received the benefit of parole, probation, or suspension of sentence on a previous fourth offense driving while intoxicated conviction. At the time of the offense, the crime of driving while intoxicated was defined, in pertinent part, as “the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when ... the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.” See La. R.S. 14:98(A)(l)(c).

Thus, in order to convict a defendant of driving while intoxicated, the State must prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Vidal, 04-1139 (La.App. 5 Cir. 3/29/05), 901 So.2d 484, 487. To convict a defendant of a fourth offense driving while intoxicated, the State must also show that the defendant had three other valid convictions. State v. Delanueville, 11-379 (La.App. 5 Cir. 2/14/12), 90 So.3d 15, 20, writ denied, 12-630 (La. 9/21/12), 98 So.3d 325. In the present case, there is no dispute that defendant was operating a vehicle and that he had three priofl fi driving while intoxicated convictions. Accordingly, the State needed only to prove that defendant was under the influence of a controlled dangerous substance.

Intoxication is defined as the impairment, however slight, to the ability of a person to operate a motor vehicle. The impairment need not be whole but only to the extent that the influence caused a person to operate his vehicle in a way different from that in which it would be operated by an ordinarily cautious and prudent person. State v. Reeder, 189 So.3d at 407.

The jurisprudence has established that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify, and some behavioral signs, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. The behavioral manifestations which are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. State v. Davis, 13-313 (La.App. 5 Cir. 10/30/13), 128 So.3d 1195, 1202, writ denied, 13-2748 (La. 5/16/14), 139 So.3d 1023.

In the present case, the jury was presented with conflicting testimony about defendant’s condition surrounding the time of the incident. According to Sergeant Tal-bert, when he first encountered defendant at the dock, defendant did not smell of alcohol, but he did have difficulty maintaining focus on the conversation. Sergeant Talbert recalled that as he spoke to defendant, defendant paused, stared, and asked the agent to repeat his questions. Sergeant Talbert further observed that defendant mumbled, slurred his words, and was “borderline incoherent.” In addition, Sergeant Talbert described that defendant was swaying and unsteady, unable to maintain his balance, and leaned against a post to stay upright. Sergeant |7Talbert further testified that he performed the horizontal gaze nystagmus test on defendant and observed the involuntary jerking of his eyes, which occurs when an individual is intoxicated or under the influence. However, Sergeant Talbert was concerned about defendant’s safety and did not have defendant perform the one-legged stand test or the walk and turn test as defendant “kept falling over” and was unable to maintain his balance.

Agent Michael Marques, a senior sergeant with the Louisiana Department of Wildlife and Fisheries who assisted in the investigation of defendant, also testified at trial for the State. While at the police station, Agent Marques observed that defendant’s speech was slurred, his eyes were droopy, and he could not walk that well. In addition to this testimony regarding defendant’s condition, the State also produced evidence that defendant’s blood contained methamphetamine, a Schedule II controlled dangerous substance, but not Suboxone, the prescription medicine that defendant claimed he had taken.

After the State rested, defendant called several witnesses to attempt to show that he was not under the influence of a controlled dangerous substance at the time of the boating accident. Mr. Dassau, the owner of the boat, testified that on the day of the incident, defendant, whom he had known for about fifteen years, seemed to be seaworthy and did not appear intoxicated. Further, he maintained that defendant “always has balance issues due to a broken back.” He also testified about mechanical problems with his boat that made it difficult to operate. In particular, Mr. Dassau explained that he does the mechanical work on the boat himself and admitted that when he installed the Morris controls, which move the boat forward and backwards and control the speed of the engine, he installed the lever backwards. As a result, when the lever was pushed forward, the boat actually moved in reverse and vice versa. Mr. Dassau also testified that at the time of the accident, the boat was about one quart low on steering oil.

|sMr. Greg Blanchard, who helped manage Dean Seafood, testified that he was standing on the dock when defendant moved Mr. Dassau’s boat. He asserted that boats frequently hit the dock and speculated that the wind had “pulled the bow out” when defendant untied the boat to move it. He recalled that as defendant turned the boat, he did not have enough room. He screamed at defendant to slow down and stop but then saw defendant run to the back deck of the boat and pull the lever backwards. The boat then moved forward and hit another vessel.

Lance Santiny, a fireman and ambulance driver with the Grand Isle Fire Department, testified that he spoke to defendant at the police station before the blood sample was drawn. Mr. Santiny knew defendant his whole life and has seen defendant intoxicated in the past. He testified that on April 28, 2015, defendant was not incoherent and did not appear to be under the influence of any alcohol or pharmaceutical substance. Lastly, Terry Blanchard, a paramedic with the Grand Isle Emergency Service who drew blood from defendant, testified that defendant was cooperative, his words were not slurred or incoherent, and he did not appear to have trouble standing.

In the present case, the jury heard the testimony from both the State and the defense witnesses, and by its verdict, obviously afforded more credibility to the testimony'of the State witnesses. The evidence presented at trial clearly supports the jury’s credibility determinations. We particularly note the testimony of State witnesses that defendant’s speech was slurred and was “borderline incoherent,” that defendant was unsteady and unable to maintain his balance, and that defendant’s eyes involuntarily jerked during the horizontal gaze nystagmus test. Further, defendant’s blood sample revealed the presence of methamphetamine in his system. Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of fourth offense driving while! 3 intoxicated. Thus, the trial court did not err in denying defendant’s post-verdict judgment of acquittal.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and Slate v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). We first note that defendant’s sentence is illegally lenient because the trial court failed to impose the mandatory fine of five thousand • dollars set forth in La. R.S. 14:98.4(C). An illegal sentence may be corrected at any time by an appellate court on review. See La. C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. State v. Davis, 128 So.3d at Í204. Since defendant is apparently indigent, as reflected by his representation in this matter by the Louisiana Appellate Project, we decline to order the imposition of the mandatory fíne. See State v. Robinson, 15-610 (La.App. 5 Cir. 1/27/16), 185 So.3d 212, 215.

Next, we note a discrepancy between the minute entry/commitment and the sentencing transcript. Specifically, the minute entry/commitment provides that defendant was advised his “Guilty Plea can be used to enhance the penalty of a subsequent offense,” whereas the sentencing transcript correctly provides that “[a]ny subsequent convictions may carry an enhanced penalty as a result of this conviction.” To ensure accuracy in the record, we remand the matter to the district court to correct the minute entry/commitment to reflect that defendant’s conviction could be used to enhance the penalty of a subsequent offense. See State v. Rivet, 01-353 (La. App. 5 Cir. 9/25/01), 798 So.2d 219, 227.

Lastly, we note an error in the State of Louisiana Uniform Commitment Order. The Uniform Commitment Order reflects that defendant’s sentence “shall be concurrent with any or every sentence the offender is now serving.” However, neither the transcript nor the minute entry/commitment indicates that the trial court ordered defendant’s sentence to run concurrently with any other sentence he is serving. Therefore, we remand the matter for correction of the Uniform Commitment Order to delete the provision relating to the concurrent nature of defendant’s sentence. We further direct the Clerk of Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ Legal Department. State v. Robinson, 185 So.3d at 216.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter with instructions.

AFFIRMED AND REMANDED

      . At trial, the testimony indicated that Mr. Dassau does the mechanical work on the boat himself. When he installed the Morris controls, which move the boat forward and backwards and control the speed of the engine, he installed the lever backwards. As a result, when the lever was pushed forward, the boat actually moved in reverse and vice versa.

      . - Notably, the proper procedural vehicle for raising the issue of the sufficiency of the evidence is a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 289 n.18, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154.

      . At trial, the State and defendant stipulated that on April 28, 2015, defendant was in control and operation of the vessel. The parties also stipulated that defendant had three prior driving while intoxicated convictions and had received the benefit of parole, probation, or suspension of sentence on a previous fourth offense driving while intoxicated conviction.

      . Methamphetamine is a Schedule II controlled dangerous substance. See La. R.S. 40:964. At trial, the State and defendant stipulated that methamphetamine was a controlled dangerous substance that was not obtainable by a prescription.


author: MURPHY, J.

text:
    STATE of Louisiana v. Courtney ABLES
    NO. 16-KA-538
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Thomas P. Sanderson, Joshua K. Vanderhooft
    COUNSEL FOR DEFENDANT/APPELLANT, COURTNEY ABLES, Jane L. Beebe
    DEFENDANT/APPELLANT, COURTNEY ABLES, In Proper Person

      Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   MURPHY, J.

[ t Defendant appeals his convictions and sentences following a Crosby plea and multiple offender adjudication. For the reasons that follow, defendant’s convictions, and his sentence for count two, are affirmed. Defendant’s enhanced sentence for his conviction of possession with intent to distribute Acetyl Fentanyl is vacated, and we remand for resentencing consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

This is defendant’s second appeal. In defendant’s prior appeal, we vacated the guilty plea, set aside defendant’s convictions and sentences, and remanded for further proceedings. State v. Ables, 15-720 (La.App. 5 Cir. 02/24/16), 186 So.3d 1274. On remand, after defendant’s motions to suppress evidence and statement were denied, defendant pled guilty pursuant to State v. Crosby to one count of possession with intent to distribute Acetyl Fentanyl, a violation of La. R.S. 40:966(A), and to one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. On July 12, 2016, in accordance with the plea agreement, defendant was sentenced to twenty years imprisonment in the Department of Corrections on counts one and two, and the sentences were ordered to run concurrently. On the same date, the State filed a multiple offender bill of information as to count one, alleging defendant to be a third felony offender. Defendant stipulated to the multiple offender bill and the trial court sentenced defendant under La. R.S. 15:529.1 to twenty years imprisonment without benefit of probation or suspension of sentence. The instant appeal follows.

LAW AND ANALYSIS

Both in his counseled and pro se assignments of error, defendant argues that the trial court erred in applying the inevitable discovery doctrine to deny his motions to suppress.

IgOn May 10, 2016, a hearing on defendant’s motions to suppress evidence and his statement was held. At the motion to suppress hearing, Deputy Glenn Webber of the Jefferson Parish Sheriffs Office testified that on March 8, 2015, at 1:30 a.m., he and Sergeant David Canas were dispatched to 4061 Indigo Court, Harvey, Louisiana, regarding a call concerning the illegal discharge of a firearm and criminal damage to property. Upon arrival, Deputy Webber spoke to Darren Barrier, who explained that his wife had heard “a loud popping noise” and that when walking through his home he observed what he believed to be a bullet hole in his wall. The officers confirmed the presence of the bullet hole in the wall and retrieved a projectile from the floor of the master bedroom. Based on the estimated trajectory of the bullet, the officers looked at the residence next door at 4065 Indigo and discovered a similar bullet hole on the exterior of the home. Upon discovery of the bullet hole on the exterior of the neighboring residence, Deputy Webber contacted his ranking officer, Sergeant Robert Fox. When Sergeant Fox arrived on the scene they attempted to speak to the residents at 4065 Indigo. After a prolonged period of time, the officers’ knocks were answered by the owners of the residence, Darrell Painter and his wife, Lisa Painter. The Painters were advised of the situation and indicated that they were unaware of a firearm having been discharged in their home. Mr. Painter then signed a consent to search “the residence for any signs of aggravated criminal damage and illegal discharge of a firearm.” They further advised the officers that their adult son, defendant, also lived at the residence but was not present at the time.

During a search of the residence, a bullet hole was observed in the wall of defendant’s bedroom, a bullet was found on the bed, a spent bullet casing was found on a night stand, and a concealed gun holster and an empty gun case were also discovered. Despite the Painters’ information to the contrary, during the search of their home, defendant was found in the dark master bathroom without Rpants or shoes. Defendant was patted down for officer safety, and a set of keys was removed from around his neck for safety reasons. He was then detained and- advised of his rights per Miranda, after which time defendant told the officers that his “friend” had discharged the firearm and that he could retrieve the “gun from him tomorrow.”

Having failed to locate the firearm, and once the occupants of the residence were secured, the officers continued their search. In the fenced in backyard of the Painters’ residence, Sergeant Fox located an overturned children’s pool. Underneath the pool was a gray locked box. The officers asked defendant whether any of the keys found around his neck would open the box. Defendant initially did not reply, but when asked a second time, responded, “/all see what’s in the box, once you open the box. Can I get my pants and my shoes?” The officers then used one of the keys found on the keychain retrieved from defendant’s person to open the box, revealing two firearms and a brown powdered substance. Deputy Webber testified on cross-examination that they opened the locked box to determine whether it contained a firearm. He noted that he would not have felt that they had adequately secured the residence until the box was opened and its contents discovered because of the presence of the minor child and other occupants of the house. Defendant was arrested and transported to the Correctional Center. During his transport defendant asked Deputy Webber whether the neighbors were “upset that a bullet went through their wall.”

Darrell Painter, defendant’s step-father, testified that his wife, their nine-year-old daughter, and defendant were living together on the night the police knocked on his door inquiring about the discharge of a firearm. Mr. Painter testified that he told the officers he was unaware of a gun being discharged in his home. Mr. Painter explained that he asked the officers to obtain a search warrant pbut ultimately signed a consent to search his residence after the officers told him that his wife and child would have to wait outside in the cold until one could be obtained. According to Mr. Painter, at no point did any of the officers advise him of what they were searching for. Mr. Painter further testified that he heard defendant tell the officers to obtain a search warrant. Lastly, Mr. Painter testified that he had never before seen the locked box and did not know to whom it belonged.

Sergeant Robert Fox testified for the State on rebuttal. Sergeant Fox testified that he explained to Mr. Painter that it was necessary to search his house for evidence concerning a gunshot that had been fired from inside his residence. It was explained to Mr. Painter that a consent to search could be executed or that they could obtain a search warrant for the residence after securing the residence by removing the occupants from the home until a warrant could be obtained so as to protect against the destruction of any evidence. Sergeant Fox testified that Mr. Painter ultimately signed the consent to search form, and at no point did he limit the scope of his consent regarding certain areas of his residence.

Defendant’s motion to suppress was taken under advisement. In his post-hearing memorandum in support of his motion to suppress, defendant argued that because Mr. Painter’s consent to search did not include consent to search the locked box found in the backyard (to which Mr. Painter did not claim ownership), the contents of the box should be considered fruit of the poisonous tree and suppressed. The State filed an opposition in response, arguing that the officers properly searched the locked box because: 1) Mr. Painter had apparent authority to consent to its search, 2) defendant provided his implied consent to search the locked box, and B) searching the locked box without a warrant was necessary due to the exigent circumstances calling officer safety and the safety of others in the ^residence into question. The State further argued that even if the officers did exceed constitutional bounds in searching the locked box, the evidence was not subject to the exclusionary rule because the actions taken by the officers were done in good faith, and thus, the evidence was properly admitted pursuant to the inevitable discovery doctrine.

On June 15, 2016, the trial court denied defendant’s motion to suppress, finding, in summary, the following: The police officers were justified in approaching the home in the first place based upon the evidence that they had become aware of and the fact that there was a bullet hole through the neighboring residence. Ultimately, the consent given by defendant’s stepfather to search the residence was a valid consent. Because the police were looking for a gun, they had the right to look underneath the pool at that time. Any container that was large enough to contain a gun would be a valid container as far as the search goes. The metal box as described by the officers was large enough to contain a gun and, therefore, it would be reasonable for the officers to want to look into that box or to seize that box until they had a warrant to look inside.

However, the trial court found that defendant did not consent to have the officers open the box. The trial court concluded:

Should the officers and I believe the officers should have—I should say, sought consent from Mr. Abies and that consent was denied, the Court believes that those officers certainly would have and I believe that was sufficient evidence to show that the officer would have obtained that warrant.
There is no question in this Court’s mind that probable cause existed at that point to obtain the warrant. Based upon all of the facts and circumstances involved I believe it is certainly reasonable and I think the State proved that the officers would, in fact, have obtained a warrant would they have been deprived from opening the box or had they not opened the box prematurely.
So for those reasons I do not believe that the opening of the box violates—or I do believe that the opening of the box constitutes an exception to the Exclusionary Rule despite the fact that there was a warrantless search. I believe the Exclusionary Rule in this case would not | fialso serve any particular purpose in that the officers conduct was not motivated by ill will or any type of ill practices, if you will.
I believe based upon the testimony that the Court heard that the officers actions were a mistake and not a pattern of conduct such that the Exclusionary Rule would benefit the suppression of evidence or the Exclusionary Rule justifies the suppression of the evidence in this particular case.
So for those reasons I do find that the Inevitable Discovery Doctrine has been met. That the State has carried its burden of proof in that regard and for those reasons despite the fact that it was a nonconsensual search of the box, I do believe that the evidence should not be suppressed.

Defendant argues on appeal that the trial court erroneously denied his motion to suppress on two grounds. One, that Mr. Painter’s consent to search the residence was vitiated when the officers coerced him into signing the consent form by threatening to place his family outside in the cold if a search warrant had to be obtained. And two, the inevitable discovery doctrine did not apply to the search of the locked box.

The Fourth Amendment and Article I § 5 of the Louisiana Constitution protect individuals against unreasonable searches and seizures. State v. Flagg, 99-1004, pp. 6-7 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 526, writ denied, 00-1510, (La. 3/9/01), 786 So.2d 117. In an effort to discourage police misconduct in violation of these standards, if evidence is derived from an um-easonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Tucker, 92-2093, 92-2130 (La. 5/24/93), 626 So.2d 707, 710; State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. The trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id; State v. Butler, 01-0907, p. 6 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 124.

Ultimately, the State bears the burden to show that a warrantless search falls within one of the exceptions to the rule that a warrantless search is, per se, unconstitutional. Flagg, 99-1004, 760 So.2d at 526. One such exception is consent 17to search when consent is given freely and voluntarily by one who possesses authority or other sufficient relationship to the premises or other effects sought to be inspected. State v. Joseph, 04-1240 (La. App. 5 Cir. 4/26/05), 901 So.2d 590, 597, writ denied, 05-1700 (La. 2/3/06), 922 So.2d 1176. “In the context of a premises search, generally consent may be obtained from one having mutual use of the premises.” State v. Shed, 36,321 (La.App. 2 Cir. 9/18/02), 828 So.2d 124, 131. The State has the burden of proving the consent was given freely and voluntarily when it relies on consent to justify a warrantless search. State v. Joseph, supra (citing State v. Taylor, 04-90 (La.App. 5 Cir. 5/26/04), 875 So.2d 962, 967, writ denied, 04-1649 (La. 11/19/04), 888 So.2d 193). Voluntariness is a question of fact to be determined by the trial judge under the totality of the circumstances. Id.

Here, the officers were investigating a call made by the residents at 4061 Indigo Court concerning the illegal discharge of a firearm and criminal damage to property. It was discovered that a bullet had passed through their residence and, based on the estimated trajectory of the bullet, was determined to have been fired from inside the neighboring residence at 4065 Indigo Court. When officers observed a similar bullet hole at 4065 Indigo, they sought the consent of the owner, Mr. Painter, to search his property. Mr. Painter testified that he initially advised the officers to obtain a search warrant, but later provided his consent to search only after being told that his family would have to wait outside in the cold while a search warrant was obtained.

A statement by police officers that they will apply for a warrant if refused consent for a search does not necessarily vitiate the voluntariness of the consent. State v. Franklin, 95-1876 (La. 1/14/97), 686 So.2d 38; State v. MacDonald, 390 So.2d 1276 (La. 1980). The determination of the voluntariness of the consent turns on the overall facts and circumstances of the particular case. State v. Edwards, 434 So.2d 395 (La. 1983). The trial judge’s factual determination on this issue is entitled to great weight on appellate review. Id.

Under Mr. Painter’s version of the events, his consent was coerced. However, the trial judge rejected his version and credited that given by the police officers. According to the officers, they merely advised Mr. Painter that a consent to search could be executed or that they would secure the house by removing the occupants until a warrant could be obtained so as to protect the destruction of any evidence. Under the officers’ version, we find the trial judge had a reasonable basis for finding Mr. Painter’s signed consent was given freely and voluntarily and that he did not err in finding the officer’s advisal vitiated Mr. Painter’s valid consent.

Defendant further contends the trial court erred in finding the inevitable discovery doctrine applicable to the search of the locked box found in the backyard.

At the outset, it is noted that while Mr. Painter consented to “a complete search of 4065 Indigo Drive, Harvey, LA 70058,” which included the search of his fenced in backyard, as the trial court appears to have properly found, his consent did not encompass the locked metal box found in the backyard to which Mr. Painter possessed neither actual nor apparent authority over.

It has long been held that another occupant of a home can provide valid consent for a search of the premises. In United State v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974), the Supreme Court held that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. Matlock, 94 S.Ct. at 993. A footnote to the foregoing continues:

| flCommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their, number might permit the common area to be searched.

Matlock, 94 S.Ct. at 993 n.7.

Here, the trial court found Mr. Painter did not have actual or apparent authority to consent to opening the locked box found to belong to his adult stepson. At the motion hearing, the State failed to demonstrate that a person of reasonable caution would believe Mr. Painter had actual or apparent authority to consent to the police search of the locked box. The locked box was found underneath an overturned children’s swimming pool in the backyard. Mr. Painter testified that when asked about the locked box, he denied ownership of the box, telling the officers that he had never before seen the box and did not know to whom it belonged. The only key found during the officers’ search of the residence which fit the lock on the box was removed from around a keychain hanging from defendant’s neck. Accordingly, the testimony at the suppression hearing did not establish that Mr. Painter had access to the box or had defendant’s permission to access the box.

Thus, without consent, in order for the evidence found in the locked box to be admissible, it must fall under one of the exceptions to the exclusionary rule. Under the facts and circumstances of this case, we find that the trial court correctly held the inevitable discovery doctrine applicable. The inevitable discovery doctrine permits the admission of evidence, which otherwise would have been excluded for police misconduct, if the prosecution can establish, by a preponderance of the evidence, that the tainted evidence “ultimately or inevitably would have been |indiscovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

In State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, the Louisiana Supreme Court explained the inevitable discovery rule as follows:

One of the theories courts use in addressing “fruit of the poisonous tree” issues is the inevitable discovery rule. The inevitable discovery doctrine “is in reality an extrapolation from the independent source doctrine: Because the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988). A functional similarity exists between the independent source and inevitable discovery doctrines because both seek to avoid excluding evidence the police “would have obtained ... if no misconduct had taken place.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). The State therefore bears the burden of proving by a preponderance of the evidence that “the information ultimately or inevitably would have been discovered by lawful means....” Id.; State v. Vigne, 01-2940 (La. 6/21/02), 820 So.2d 533, 539. Application of the inevitable discovery doctrine thus “involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment....” Nix v. Williams, 467 U.S. at 444, 104 S.Ct. at 2509 n. 5; State v. Vigne, 820 So.2d at 539.
Integral to the proper application of the inevitable discovery doctrine is a finding that law enforcement would have inevitably secured the evidence by lawful means, not simply that they could have. Thus, a mere showing that the police had probable cause for a search and could have secured a warrant from a neutral magistrate does not satisfy the doctrine, because it would effectively obviate the Fourth Amendment preference for warrants and reduce the exclusionary rule to cases in which the police lack probable cause. See United States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006)(“The usual understanding of that doctrine is that the exclusionary rule should not be applied when all the steps required to obtain a valid warrant have been taken before the premature search occurs [citing Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)] .... If probable cause alone—without putting in train the process of applying for a warrant— were enough to invoke the inevitable-discovery doctrine, that would have the same effect as limiting the exclusionary rule to searches conducted without probable cause.”)', see also 6 LaFave, Search and Seizure, § 11.4, at 278-79 (Fourth Ed.) (“Circumstances justifying application of the ‘inevitable discovery’ rule are most likely to be present if these [independent] investigative procedures were already in progress prior to the discovery via illegal means, as in Nix v. Williams, or where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later.”).

State v. Lee, 05-2098 at 23-24, 976 So.2d at 127-128.

InHere, in finding the evidence in the locked box would have eventually been legally discovered, the trial court reasoned that the officers were actively investigating an unauthorized discharge of a weapon. Pursuant to this investigation they located evidence of the firing of a weapon, namely, various bullet holes in the home, including one found in defendant’s bedroom. The officers also located a bullet on the bed, a spent bullet casing on a night stand, a concealed gun holster, and an empty gun case—evidence related to the crime being investigated. In their attempts to locate the weapon that had been used to allegedly fire the shot that entered the neighbor’s home, defendant was discovered in the dark master bathroom with a set of keys— with one key belonging to the locked box— around his neck. Thus, investigative procedures were well underway at the time the officers located the locked box in the backyard. Moreover, once the locked box was recovered, defendant was questioned about its contents, to which defendant replied, “/all see what’s in the box, once you open the box.” Knowing the object of their search could be contained in the locked box, according to the trial court, “it would have been unreasonable to believe that when the officers found the box to be locked that the investigation would have stopped at that point.” When all of these factors are combined, the officers possessed sufficient probable cause to obtain a search warrant for the contents of the locked box and a search warrant would have been obtained.

The Exclusionary Rule, which seeks to deprive the prosecution of evidence tainted by official wrongdoing in order to discourage further improprieties, would serve no purpose in this case where the officers’ conduct was found to have not been motivated by “ill will or any type of ill practices.” Accordingly, based on the foregoing, we find the trial court properly found that absent the officers’ error in prematurely opening the locked box, the contraband would eventually have been | ialegally discovered, and that exclusion under these circumstances would be inappropriate.

ERROR PATENT REVIEW

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

With respect to defendant’s enhanced sentence on count one, La. R.S. 40:966(B)(2) provides for a term of imprisonment at hard labor for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence. A defendant’s sentence under the Habitual Offender Law, La. R.S. 15:529.1, is determined by the sentencing provisions of both the underlying crime and the Habitual Offender Law. State v. Holmes, 12-351 (La.App. 5 Cir. 12/11/12), 106 So.3d 1076, 1081-82, writ denied, 13-86 (La. 6/14/13), 118 So.3d 1080. Here, while defendant was sentenced on count one as a third felony offender pursuant to La. R.S. 15:529.1 to twenty-years imprisonment without benefit of probation or suspension of sentence, the trial court failed to order that at least five years of defendant’s sentence is to be served without benefit of parole. •

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally ■ inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. Here, while defendant was aware of the sentencing range for the offense and was informed of the probation and suspension of sentence restrictions, he was not informed that his enhanced sentence would be imposed without the benefit of parole for at least five years. There is no indication in the record or suggestion by defendant that there was any inducement regarding the restriction of benefits in | tathis case. Thus, we find that defendant’s guilty pleas were constitutionally acceptable and were to his advantage as a result of effective plea-bargaining.

However, while La. R.S. 15:301.1 typically obviates the need to correct the sentence, where the statute gives the trial court discretion as to the number of years imposed to be served without benefits, the reviewing court should vacate the illegally lenient sentence and remand for resen-tencing. Because La. R.S. 40:966(B)(2) provides that “at least five years” of the sentence shall be served without benefit of probation, parole, or suspension of sentence, we vacate defendant’s enhanced sentence for his conviction of possession with intent to distribute Acetyl Fentanyl and remand for resentencing. See State v. Alfaro, 13-39 (La.App. 5 Cir. 10/30/13), 128 So.3d 515, 534, writ denied, 13-2793 (La. 5/16/14), 139 So.3d 1024.

DECREE

For the foregoing reasons, defendant’s convictions, and the sentence for count two, are affirmed. Defendant’s enhanced sentence for his conviction of possession with intent to distribute Acetyl Fentanyl is vacated, and we remand for resentencing consistent with this opinion.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT TWO AFFIRMED; ENHANCED SENTENCE ON COUNT ONE VACATED; REMANDED WITH INSTRUCTIONS

      . 338 So.2d 584 (La. 1976).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    STATE of Louisiana v. Matthew C. CARROLL
    NO. 16-KA-599
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, MATTHEW C. CARROLL, Gwendolyn K. Brown
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

[, Defendant, Matthew Carroll, appeals his convictions and sentences for battery of a police officer and battery of a correctional facility employee. For the reasons that follow, we affirm both convictions and sentences, and we grant appellate counsel’s motion to withdraw as attorney of record.

STATEMENT OF THE CASE

On November 6, 2014, the Jefferson Parish District Attorney’s office filed a bill of information charging defendant with two counts of battery upon a correctional facility employee, in violation of La. R.S. 14:34.5. Defendant pled not guilty to both charges at his arraignment on December 18, 2014. On February 2, 2015, defendant withdrew his not guilty pleas and pled guilty to an amended charge of battery of a police officer for count one, a violation of La. R.S. 14:34.2, and also pled guilty to battery of a correctional facility employee for count two. As part of his plea agreement, defendant was sentenced by the trial court to six months at hard labor for count one, with credit for time served and six months without benefit of probation or suspension of sentence. Defendant was sentenced to one year at hard labor for count two, without benefit of parole, probation or suspension of sentence. The sentence for count one was ordered to run consecutively to count two. Defendant thereafter filed an application for post-conviction relief, which the trial court converted to an out-of-time appeal on September 8, 2016. This timely appeal follows.

JgFACTS

Because the instant convictions were a result of guilty pleas, the underlying facts of the matter were not fully developed at trial. However, a probable cause affidavit in the record indicates that, while being transferred from an “inmate housing area,” defendant struck, bit, and kicked two Jefferson Parish Deputies.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (internal citation omitted).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

ANALYSIS

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel indicates that defendant pled guilty pursuant to a counseled plea agreement, and that the trial court’s colloquy was thorough and complete. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of his brief.

The State asserts that the record shows that prior to defendant’s guilty plea, the district court fully explained to him the rights he was waiving, and defendant | ¿affirmed his understanding. The State agrees with counsel that defendant made a knowing and voluntary act of pleading guilty. Further, defendant was informed of his right to appeal. The State concludes, therefore, that defendant’s convictions and sentences should be affirmed and that appellate counsel should be allowed to withdraw.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The record shows that defendant was present at the sentencing and was represented by counsel. Prior to sentencing, the trial court entered into a colloquy with defendant wherein the court advised defendant of his Boykin rights and asked defendant if he understood that he was waiving those rights by pleading guilty. Defendant was advised of the sentences he would receive if he pled guilty. Defendant’s sentences were in the statutory range for violations of La. R.S. 14:34.5 and 14:34.2 and, as appellate counsel notes, defendant’s plea bargain resulted in an agreement from the State not to file a multiple offender bill of information. Furthermore, La. C.Cr.P. Art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Defendant was also properly advised of the time limitations for filing post-conviction relief.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s sentences and convictions and grant appellate counsel’s motion to withdraw as attorney of record.

[¿ERROR PATENT DISCUSSION

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. Art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990) regardless of whether defendant makes such a request. Our review reveals no errors patent in this case which require correction.

DECREE

Accordingly, for the reasons provided herein, defendant’s convictions and sentences are affirmed and appellate counsel’s motion to withdraw as attorney of record is hereby granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The record shows that defendant was charged under La. R.S. 14:34.2(B)(1), which provides, "Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence," This Court’s appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164 (La.App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287 (citing La. Const. of 1974, Art. 5 § 10; La. C.Cr.P. Art. 912.1). Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess, 00-164 at 1-2, 762 So.2d at 1287 (citing La. Const. of 1974, Art. 1 § 17; La. C.Cr.P. Art. 779; State v. Robinson, 94-864, pp. 2-3 (La. App. 5 Cir. 3/15/95), 653 So.2d 669, 670. The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. See La. C.Cr.P. Art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, writ denied, 08-0784 (La. 10/24/08), 992 So.2d 1033. In this case, however, the misdemeanor and felony convictions appear intertwined to the point that the interest of justice is better served by considering the matters together. See State v. Jones, 12-640 (La.App. 5 Cir. 10/30/13), 128 So.3d 436.

        . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 5, 2016, to file a pro se sup-plemenial brief. Defendant did not file a pro se brief.

      . Boykin v. Alabama, 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).