author: EZELL, Judge.

text:
    STATE of Louisiana v. Patrick LEVIER.
    No. 09-238.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Michael Harson, District Attorney, Fifteenth Judicial District, Lafayette, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendani/Ap-pellant, Patrick Levier.
    Patrick D. Magee, Lafayette, LA, for Appellee, State of Louisiana.
    Patrick Levier, Angola, LA, pro se.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

_JjThe Defendant, Patrick Levier, was charged by indictment with second degree murder, a violation of La.R.S. 14:30.1. On November 29, 2007, the jury rendered a verdict of guilty as charged in a ten-out-of-twelve decision. On January 28, 2008, the Defendant was sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence.

The Defendant filed a “Motion for Post Verdict Judgment of Acquittal or Modification of Verdict.” After a hearing on the matter, the trial court denied the motion. On appeal, the Defendant asserts the State presented insufficient evidence to convict him of second degree murder.

FACTS

On June 18, 2006, the Defendant shot and killed Nelson Lewis. At trial, the forty-year-old Defendant testified he was five foot six and one-hundred and thirty-nine pounds. He worked in the construction business, specifically building bridges, as a “rise buster” for seventeen years. The Defendant admitted he had two prior misdemeanor convictions. The Defendant explained he first met Mr. Lewis at a night club, and they became friends. The. Defendant testified he and Mr. Lewis would meet and that he visited Mr. Lewis’s home.

In June 2004, the Defendant and Mr. Lewis were working together and had a confrontation. The Defendant testified he asked Mr. Lewis if he could get on the bulldozer because he was cold. According to the Defendant, Mr. Lewis refused, got off the machine, pulled a knife, and threatened to cut the Defendant. The Defendant stated Mr. Lewis was several inches taller than he and weighed about one-hundred pounds more than he.

12The Defendant recalled another incident in which the victim pulled a knife occurring at the Defendant’s home. The Defendant explained Mr. Lewis came to his house, exited the car, walked up to Jerry Tezeno, a friend of the Defendant’s, pulled a knife, and threatened to make an “X” on Mr. Tezeno’s forehead. Mr. Tez-eno testified at trial corroborating the incident.

The Defendant testified that three months before the incident, Mr. Lewis began calling his girlfriend, Brenda Thibo-deaux. During these phone calls Mr. Lewis accused the Defendant of cheating with other women, and he made advances toward Ms. Thibodeaux. The Defendant stated he asked Mr. Lewis to stop calling Ms. Thibodeaux, but Mr. Lewis continued to call. Consequently, as a result of Mr. Lewis’s actions, the Defendant went to the police twice. According to the Defendant, after the second complaint to the police, the police visited Mr. Lewis.

Ms. Thibodeaux testified that on the morning of June 18, 2006, she and the Defendant were arguing. During the argument, she told the Defendant that Mr. Lewis offered to take her to the casino and to give her money. Ms. Thibodeaux testified she refused the offer.

Around 6:30 p.m., on the evening of June 18, 2006, the Defendant was riding on Simcoe Street in Lafayette, when according to the Defendant, Mr. Lewis flagged him down and asked him to meet him in the parking lot between Simcoe and Louisiana Avenue. The Defendant denied he went looking for Mr. Lewis. The Defendant testified when he arrived at the parking lot, Mr. Lewis was there. Both men exited their vehicles, and the Defendant told him “I went to Mr. Will’s house and tell Mr. Will I had called the cop on you for you to leave me alone. That’s what I want you to do, just leave me alone.” According to the Defendant, Mr. Lewis walked up to him, and the Defendant pushed Mr. Lewis. The Defendant testified he told Mr. |3Lewis to stop because he did not want any trouble. The Defendant stated Mr. Lewis reached in his pocket, grabbed his knife, and walked “on me.” The Defendant testified he saw the knife when Mr. Lewis grabbed it from his pocket and pulled it up. At that time, the Defendant drew his gun and said “stop.” The Defendant testified Mr. Lewis did not stop, and he shot him. According to the Defendant, Mr. Lewis continued coming toward him, and he shot him again. Mr. Lewis then spun around, and the Defendant shot him two more times.

When asked why he was carrying his gun when he met Mr. Lewis, the Defendant explained he kept his gun in the console of his truck, and he put his gun in his pocket because Mr. Lewis always carried his knife. Ms. Thibodeaux testified she had once seen a gun in the Defendant’s truck in the glove compartment.

The Defendant further explained why he was carrying the gun, stating in pertinent part:

Q And tell me again, why was this in your pocket?
A I put it — I put it in my pocket for protection, and — and I knew Nelson — he always carry his knife with him. He never leaves his knife with him — he always carry his knife with him. And I just went there, like to say, you know, I thought we was just going to just talk, you know. He just got all out of control with me.
Q You knew at the time that you put this gun in your pocket that you were going to talk with him?
A Well, I didn’t — -like I say, I put it in my pocket. I ain’t never thought that was going — like we was going to have no altercation or nothing.
Q But you also had in your mind the fact that at least twice before, once against you and once against Gerald [Jerry] Tezeno, you had seen—
A Well, I seen what he did to Gerald [Jerry], and I seen what he had did to me. I couldn’t trust him, you know. I put my gun in my pocket.
LQ What did you think would happen to you if Nelson had pulled his knife out?
A Nelson was going to stab me. If I stay there, he was going to stab me up. I probably never been here today now.
Q When you pulled your pistol out and started pulling the trigger, did you feel that you were in danger?
A I feel — I was in fear for my life. I was feeling danger. I was.
Q Did you know that this very sharp knife was in his pocket?
A No, not that knife there.
Q But you knew that he had some knife?
A Well, I knew he had a knife. He always carry a big pocket knife with him.
Q And it’s this danger that you were trying to protect yourself from?
A I was trying to protect myself from that, you know, for him not cutting me with his knife. And I was [sic] feared for my life.

After he shot Mr. Lewis, the Defendant drove to Ms. Thibodeaux’s house and told her what happened. Also, he phoned his friends Clay Bertrand, Al Malveaux, Harold Lazard, and his mother to tell them about the incident.

Next, he went home to change his clothes and went to his neighbor’s, Elsie Boutte’s, house. The Defendant told Ms. Boutte what happened and asked her to take him to the police station.

At the police station on the evening of the shooting, the Defendant gave a statement to the police admitting he shot Ms. Lewis. During the trial, the statement was admitted into evidence and read to the jury. This statement provided in pertinent part:

PL: All right all this happened when I use [sic] to work with Nelson for the city, I had worked with him probably about two months if I’m not mistaken and uh he, he keep fussing in the field. Hey man. I say you change on me, why you do that why you fussing at me. You know I understand I know I’m operating the dozer and stuff and uh he kept |r,fussing at me man, kept fussing at me you know and you know and then me and him got in a big argument in the field and uh, and then after that we got to start fussing again you know and then he pulled a knife on me.It was just me, it was just me and him and uh I never made a big deal out of it you know and that after that I, we kept, we made back friends after that you know we kept you know I kept I went by his house a few times, he came by mine you know and then after that my old lady calls telling me how....
PL: And she kept telling me things about I would be with this girl and I know I wasn’t you know. I know me and Nelson use to go to different places you know and she kept telling me that and so I put two and two together I knew it was Nelson kept telling my lady all the things was going on about me saying I was messing ... or I cheated this and that and I know I wasn’t. And uh that kept on going. She kept throwing things in my face what Nelson said, Nelson said, I keep cheating on that’s why you and me, that you and me, just (inaudible) like that you need to be with me. I wouldn’t mind giving you $300.00, maybe $300.00 or $400.00 to be with you, you don’t need that dude you know....
PL: Nelson. And uh he said meet me on the next street and uh I then met him on the next street and uh..
BR: What vehicle was Nelson in?
PL: He was in a lil’red, a hired Sunfire.
SR: And what were you in?
PL: I was in my blue Chevrolet truck a (inaudible) ...
BR: Okay.
PL: I had uh I had met you know to go talk to him. I asked him why he doing that. He didn’t (inaudible) he kept coming on me. I said stop.
BR: “What do you mean coming on you?
PL: Well he kept walking on me. He say yeah.
BR: Walking toward you?
PL: Walking towards me.
BR: Okay.
|(jPL: And he came in my face. I said look stop man and I pushed him out my way. I said no, don’t come on me like this. I don’t know what you gon’ do and he, he kept coming again and uh he, then he dug in his back pocket and then I pull my gun out and then I shot him. BR: Where did you [sic] gun from?
PL: Oh I been bought my gun.
BR: Now what..
PL: Well I had my gun in my back pocket.
BR: Okay.
PL: In my, in my left pocket.
BR: Was it in your right [sic] pocket the whole day today or?
PL: No I just took it out of my console and put it in my pocket.
BR: The console of your truck?
PL: Yeah, Just out my truck, put it in my pocket, I didn’t know, I know he always carry his knife with him you know.
BR: Uh-huh.
PL: You know I didn’t know what he was gon’ do when I was gon’ talk to him you know.
BR: So before right before you met with him and you took it out of the console of your truck..
PL: I took it out of the console of my truck and put it in my back pocket. BR. When did you do that?
PL: Well when I parked my truck, when he drove up and I got down I put my gun in my back, in my back pocket, I didn’t know what he was gon’ do.
PL: Well what happened like I said he was coming, I said look you know I said why you going around telling Brenda all kinds of things about me. I said yeah you went told Will all this and that what I’m doing. He kept coming. I say don’t come on me like this you know. I said stay away from me. He kept coming on me and then I pushed him out my way. I say don’t come walking on me like that, what you gon’ 17do, then he dug in his back pocket where he usually keep his knife in his back pocket.
BR: His right?
PL: In his right pocket. That’s how he did it the last time to me in the field. He had it in his right pocket. I just took a chance with him you know I knew he got, he, he like ...
BR: How far were y’all?
PL: He was kind of, well I mean he was coming on me when I had pushed him and he dug in his pocket he was coming on me.
BR: How far back was he whenever ... PL: Well like, say like this him and I had push him, he came on, then I back up and then, it was chance [sic] for me to get my gun. I said look you need to back up. I say I don’t want to shoot you man just back up. He kept coming on me and then I just shot him.
BR: Where did you shoot him?
PL: Somewhere in his stomach (inaudible) ...
BR: How many times did you shoot?
PL: I think I shot like three or four times with the gun.
BR: Why did you shoot him?
PL: Well I didn’t chance [sic] he was digging in his back pocket, he was coming on me you know.
BR: Did you ever see him come out with anything?
PL: Well when he, when he dug in his pocket and he was coming on me I knew I, I back out the way you know and I grabbed my gun and I said stop man. He kept coming on me.
BR: So, but did you ever see him ...
PL: I never seen him when he ... when he dig, when he dug in his pocket when he was coming on me, I hurried up and back [sic] and ran out the way and back up and pull the gun and I say stop, he kept coming on me with this [sic] hands still in his pocket.
BR: So the reason why you shot him is what?
|SPL: He had his hand in his pocket I thought he was coming to pull his knife out. I know he usually keep his knife in his pocket.
BR: Okay.
PL.: That’s why I shot him for him not to come and stab with the knife or nothing.
BR: Did you ever see him with this knife?
PL: Well I use to see him, well I never see him at the present time with the knife, with the knife at the time that I shot.
BR: On today?
PL: Today yeah when he dug in his pocket I never seen the knife in his pocket. I know he usually keep the knife and uh that’s when he dig in his pocket. I know he usually keep that knife in that pocket, in his back pocket.
BR: But you never saw it[.]
PL: I never seen him with the knife, I don’t know man, I don’t know if the knife was in his pocket. He dug in, in his pocket to grab something.
BR: So he could have been grabbing for his wallet....
PL: Oh no.
BR: But your perception was....
PL: I perceive it like I know he did it once to me already in the field when I was with him in the city you know.

Brenda Thibodeaux testified Mr. Lewis started calling her three months before the incident telling her the Defendant was messing around with other women. Ms. Thibodeaux acknowledged that the Defendant went to the police twice about Mr. Lewis harassing her. On the morning of the incident, Ms. Thibodeaux recalled arguing with the Defendant and telling him, Mr. Lewis asked her to go to the casino with him and he offered to give her money. Later that evening, Mr. Lewis came to her home and told her about the shooting. He explained that they were in a heated ^argument when Mr. Lewis reached for something and the Defendant shot him. Ms. Thibodeaux described the Defendant as nervous and crying.

Harold Lazard, a family friend of the Defendant for about twenty-five years, testified the Defendant called him and told him he shot Mr. Lewis four times. According to Mr. Lazard, the reason the Defendant gave for shooting Mr. Lewis was he was tired of Mr. Lewis saying stuff about him to his girlfriend. Mr. Lazard stated that the Defendant did not tell him anything about a knife. Mr. Lazard testified the Defendant told him prior to the day of the shooting about Mr. Lewis pulling a knife on him at work. Additionally, the Defendant had previously told him about Mr. Lewis harassing his girlfriend and going to the police about the harassment.

Elsie Boutte testified the Defendant told her he shot Mr. Lewis after Mr. Lewis called him all kinds of names and stuck his hand in his pocket like he was going to cut him with a knife. The Defendant, prior to the day of the shooting, told her about Mr. Lewis harassing his girlfriend and going to the police about the harassment.

Clay Bertrand, a former employer of the Defendant, testified on the day of incident, the Defendant called him very upset and told him he shot Mr. Lewis. The Defendant explained they met in the parking lot and walked toward each other. When he saw Mr. Lewis reaching in his pocket, the Defendant shot him because he knew Mr. Lewis carried a knife.

Hebert John Cross, a good friend of Mr. Lewis, was with Mr. Lewis on the evening of the incident. He and Mr. Lewis went down to Simcoe Street in Lafayette by the night clubs. According to Mr. Cross, the Defendant pulled alongside Mr. Lewis’s car and asked Mr. Lewis to meet him around the corner at the intersection of Simcoe and Louisiana Avenue. Mr. Cross testified the Defendant did not ask in an angry manner. Mr. Cross recalled the Defendant and Mr. Lewis exited their vehicles. | ipMr. Cross remained in the car, a Sunbird, with the windows up, except for a small crack. Mr. Cross stated neither the radio nor the air conditioner were on. Mr. Cross testified when the two men met each other the Defendant hollered “You told my old lady,” reached in his pocket, and shot Mr. Lewis four times. Mr. Cross explained that after the first and second shot, Mr. Lewis was standing. Then, Mr. Lewis started backing up and turning; the Defendant shot again. Mr. Lewis turned all the way around, and the Defendant shot the fourth time. Mr. Cross testified Mr. Lewis did not say anything to the Defendant or make an aggressive move toward the Defendant. Mr. Cross admitted seeing a knife in Mr. Lewis’ possession on the evening of the shooting, but not around the Defendant.

During the search of Mr. Lewis’s car, the police found a large pocket knife. Corporal Kevern Stoute, with the Lafayette Parish Sheriffs Office, testified the knife, which was closed, was found on the driver’s side between the seat and the door frame. Additionally, the State stipulated that a knife was found in Mr. Lewis’s pocket during the autopsy. There was no testimony as to which pocket the knife was found or whether the knife was closed or opened.

Dr. Collie Trant, a forensic pathologist for the Lafayette Parish Corner’s Office, testified he performed the autopsy on Mr. Lewis. His findings indicated gun shot wounds to the left abdomen, to the back, and two to the upper chest.

Additionally, three witnesses who were passing by the intersection at the time of the shooting testified they saw the Defendant shoot Mr. Lewis. None of the witnesses recalled seeing any aggressive behavior by Mr. Lewis.

In ASSIGNMENT OF ERROR

The Defendant asserts the State presented insufficient evidence to convict him of second degree murder. Specifically, the State failed to disprove his claim of self-defense.

In the motion seeking a post-verdict judgment of acquittal or modification of the verdict, the Defendant asserted the State failed to disprove the validity of his claim of self-defense. The Defendant noted that during trial he had shown the following:

(a) Mr. Lewis had, as known to Defendant, engaged in two separate knife attacks upon persons.
(b) Mr. Lewis had engaged in one prior knife attack on Defendant.
(c) Mr. Lewis had earned a reputation for carrying his knife(s).
(d) Mr. Lewis brought, not one, but two knives to the scene of the incident in which he lost his life.
(e) Mr. Lewis had embarked on a three month reign of terror and harassment against Defendant Levier and Levier’s girlfriend. So great was the harassment that Mr. Levier contacted the police for assistance and protection, but the harassment persisted.
(f) Mr. Lewis participated in a meeting with Defendant and at that meeting, Mr. Lewis reached for the knife in his pocket.

At the hearing on the motion, the Defendant argued in pertinent part:

The circumstances were that there was one prior attack on the defendant by Mr. Lewis, and another act by Mr. Lewis on someone else at the defendant’s home and in the defendant’s presence. Mr. Lewis had two (2) knives at the scene, one that he had just readied apparently and set inside his vehicle door, the other in his pocket. Mr. Lewis reached for the knife which was in the pocket.
There are two threats, specific threats, that would decry [sic] criminal intent by Mr. Levier. The first threat, Mr. Lewis reaching for the knife, which he had prepared in his pocket, and Mr. Lewis’ aggressive nature and aggressive acts ...
|12As to the matter of jury deliberation, clearly the jury — there was reasonable doubt. Five-and-a-half (5⅜) hours of deliberation, and we could hear — all of — those of us who were in the courtroom could heai' the yelling and loud and intense conversations that were taking place behind the door. Clearly, someone was deprived of their vote, and Mr. Levier [sic] deprived of his right to their vote and their opinion. Some person or persons just harangued and harassed, wore down, brow beat some jury members into voting with — with them, and that is exactly what took place behind that door.
The State had an obligation to prove its case beyond a reasonable doubt. Viewed — all of these circumstances viewed in the most favorable light to the State, no rational trier of fact could have found a verdict of second degree murder.

The State countered:

[T]he jury rendered a verdict of ten (10) to two (2), Your Honor, for second degree murder. After hearing all the facts and circumstances surrounding this horrific incident, they still came back ten/ two (10/2) for second degree murder.
There was no testimony, outside of the defendant’s self-serving testimony, that there was an aggressive act by the victim....

The trial court denied the motion stating:

There was evidence at the trial that the confrontation was created by Mr. Levier. Some of that testimony came from the passers — by on Louisiana Avenue or Simcoe Street, but the strongest testimony was from Mr. Lewis’ passenger, who said that Mr. Levier approached Mr. Lewis and, without being provoked, said something about Mr. Lewis having told Mr. Levier’s girlfriend something, and then without provocation, [shot] him four (4) times.
The jury was entitled to accept that testimony, if that’s what they wanted to do. They apparently did. And I realize that the jury deliberations were lengthy. They were animated, as anyone near the courtroom — could tell. But there’s no evidence that there was any jury misconduct or that anyone was deprived of their own convictions and their own vote.

On appeal, the Defendant admits that he shot the Victim but argues his actions were justifiable. The Defendant asserts other than the testimony of Mr. Cross, the State failed to produce any evidence to support the Defendant’s contention that its theory there was no aggressive behavior on the part of the Victim. The Defendant 113argues Mr. Cross was in shock, a good friend of the Victim, and did not have a good angle to see what happened.

The State counters there were no eyewitnesses to support the Victim was aggressive. Additionally, the physical evidence showing that the Victim was shot four times, including one shot to his back, supported the State’s theory.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. ■ 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 0citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,1371.

In State v. Richards, 06-1553, p. 16 (La. App. 3 Cir. 5/2/07), 956 So.2d 160, 170-71, writ denied, 07-1129 (La.12/14/07), 970 So.2d 529, the court held in pertinent part:

Homicide is justifiable in some instances: in cases of self defense; if necessary to prevent a violent or forcible felony involving danger to life or great bodily harm; in situations where the offender reasonably believes the victim is likely to use unlawful force against a person present in a dwelling, business, or motor vehicle; and when the offender is lawfully inside a dwelling, business, or motor vehicle and the offender reasonably believes that deadly force is necessary to either repel an intruder or force the intruder to leave the premises. La. R.S. 14:20. “When a defendant claims self-defense in a homicide case, the State bears the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense.” State v. Loston, 03-977, p. 9 |14(La.App. 1 Cir. 2/23/04), 874 So.2d 197, 204, writ denied, 04-792 (La.9/24/04), 882 So.2d 1167. In examining a claim of self-defense, it is necessary to consider: (1) whether the defendant had a reasonable belief that he was in immediate danger of death or great bodily harm; (2) whether, under circumstances such as the possibility of escape, killing was necessary to prevent that death or great bodily harm; and (3) whether the defendant was the aggressor in the conflict. State v. Jenkins, 98-1603 (La.App. 4 Cir. 12/29/99), 750 So.2d 366, writ denied, 00-556 (La.11/13/00), 773 So.2d 157. “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La.R.S. 14:21.

Recently, in State v. Mincey, 08-1315 (La.App. 3 Cir. 6/3/09), 14 So.3d 613, this court reviewed whether or not the State presented sufficient evidence to disprove the defendant’s defense of justification. In Mincey, the victim, Jerome Dejean, was at a nightclub. While at the club, the defendant bumped into Dejean on his way to and from the bathroom. The two exchanged words, and the defendant exited the club followed by two of the victim’s friends, Jones and Doucet. The two friends confronted the defendant about the incident. An argument ensued, and the defendant advised them he had a gun. Dejean came out and confronted the defendant. The Defendant’s mother, who was also at the club, intervened and stood between the defendant and Dejean in an attempt to mediate the dispute. As she placed her hand on Dejean’s chest, he pushed her hand aside and attempted to punch the defendant. The defendant shot him in the chest and fled. “According to the defendant’s mother, Dejean was in ‘mid-swing whenever he got shot.’ ” Id. at 614.

On appeal, the defendant did not deny that he shot and killed the victim, but argued that the State failed to disprove that he acted in self-defense. Specifically, the defendant argued that the killing was justifiable because he had his back against the wall, and was surrounded by the victim and the victim’s two friends. Additionally, |1Bhe contended that shooting the victim was the only way he could escape. Furthermore, the defendant claimed that one of the victim’s friends had a firearm, but this was disputed by both of the victim’s friends at trial. This court held in pertinent part:

The essence of his defense is that he was justified in responding to an attempted punch by shooting his opponent in the chest at close range. We recognize that Dejean had two friends with him. Thus, Defendant may have genuinely felt endangered; further, some level of fear was objectively reasonable. However, the level of force he used to defend himself was far beyond what was necessary under the circumstances.
This analysis applies even if the jury believed the testimony of Defendant’s most favorable witness, Ms. Bryant, the Defendant’s mother.
[A]s mentioned earlier, responding to an oncoming punch by shooting the other person in the chest is an excessive response. Thus, the jury’s determinations in the present case were not unreasonable. Therefore, the Defendant’s reliance on self-defense is meritless.

Id. at 616.

In this case, the essence of the Defendant’s defense is that he was justified in shooting Mr. Lewis because Mr. Lewis was reaching in his pocket, and the Defendant knew or saw he had a knife. According to the trial court, the jury apparently rejected the Defendant’s testimony. Nevertheless, even if the jury believed the Defendant’s testimony that Mr. Lewis dug in his pocket for the knife and Mr. Lewis was coming toward him, the level of force used by the Defendant was far beyond what was necessary. Consequently, this court finds the State presented sufficient evidence to disprove the Defendant’s claim of self-defense. Accordingly, this assignment of error lacks merit.

^CONCLUSION

The Defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Tory LANDRY.
    No. 09-260.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Alfred F. Boustany, II, Lafayette, LA, for Defendant/Appellant, Tory Landry.
    J. Phillip Haney, District Attorney, Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

11 The defendant entered a guilty plea to the charge of vehicular homicide. The defendant was subsequently sentenced to thirty years at hard labor, all but eighteen years suspended. The first five years of this sentence is to be served without the benefit of probation, parole, or suspension of sentence. Upon release, the defendant will be on supervised probation with special conditions for five years. He was ordered to make restitution to the victim’s family. The defendant appeals this sentence, asserting it is excessive and that the trial judge failed to adequately consider the mitigating factors present. For the following reasons, we affirm the defendant’s sentence and remand with instructions.

Factual and Procedural Background

This matter stems from an automobile accident occurring on the evening of May 8, 2005. The defendant and his friend, Patrick Clay Terry, were drinking together at Mr. Terry’s home. The two then went to a friend’s house where both of them continued drinking. Later in the evening, the defendant and Terry left the friend’s house, with the defendant driving. The defendant admitted to drinking with Mr. Terry what he believed to be “over a fifth” of alcohol, however, the defendant “figured [he] was not impaired[.]” The defendant testified at his sentencing hearing that he believed, as the two headed back home, Mr. Terry remembered leaving his cell phone at the friend’s house and wanted to return to the friend’s house to retrieve the phone. The defendant testified that he turned around to return to the friend’s house and that he “must have passed out at the wheel.” Tragically, the defendant’s vehicle struck another vehicle in the opposing lane of travel. The driver of the other vehicle received moderate injuries. Mr. Terry was killed in the crash. At the plea hearing, the defendant admitted to having a blood alcohol content of .231.

|2The defendant was originally charged with vehicular homicide, a violation of La. R.S. 14:32.1; vehicular negligent injuring, a violation of La.R.S. 14:39.1; operating a vehicle while intoxicated, a violation of La. R.S. 14:98; driving the wrong way on a one-way roadway, a violation of La.R.S. 32:78; and having no proof of insurance, a violation of La.R.S. 32:863.1. Pursuant to a guilty plea, an amended bill of information was filed charging the defendant with vehicular homicide and negligent injuring. The defendant then pleaded guilty to vehicular homicide and no contest to the vehicular injuring charge.

At the sentencing hearing, the defendant presented witnesses, and Mr. Terry’s family read prepared statements. After listening to testimony and reviewing the defendant’s criminal history, the trial court sentenced the defendant, on the vehicular homicide charge, to thirty years at hard labor, all but eighteen years suspended. The first five years of this sentence was ordered served without the benefit of probation, parole, or suspension of sentence.

After sentencing, the defendant filed an application for post-conviction relief, seeking an out-of-time appeal and asking the court to sentence him on the negligent injuring charge. Based upon the agreement of the parties, the trial court entered judgment dismissing the charge of vehicular negligent injuring and granted this out-of-time appeal. This judgment allowed the defendant thirty days to file a motion to reconsider his sentence, and thirty days from the court’s ruling on that motion, to file a motion for appeal.

The defendant filed a motion to reconsider his sentence in which he proposed an alternative sentence. The trial court denied the motion to reconsider the defendant’s sentence, and the defendant moved for this appeal. He assigns as error |3that the trial court failed to consider the appropriate aggravating and mitigating factors in particularizing his sentence, and that the trial court erred in imposing the maximum sentence.

Discussion

Errors Patent

Louisiana Code of Criminal Procedure Article 920 requires that all appeals be reviewed for errors patent on the face of the record. Our review reveals three errors patent; however, two of the errors do not require correction on appeal. The third error requires a remand.

First, in the same bill of information, the defendant was charged with vehicular homicide and vehicular negligent injuring. The offense of vehicular homicide is triable by a jury, whereas, the offense of vehicular negligent injuring is triable by a judge only. Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances, namely, if the offenses joined are triable by the same mode of trial. Thus, these two offenses should not have been joined in the same bill of information. However, because the defendant failed to file a motion to quash the bill of information based on the misjoinder, he waived all objections to the error. See La.Code Crim.P. art. 495 and State v. Mallett, 357 So.2d 1105 (La.1978), cert denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979). Additionally, by entering an unqualified guilty plea, the defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976).

Next, because the misdemeanor would not have been triable by a jury, the proper mode of appellate review for this offense would have been an application for | ¿writ of review, rather than an appeal. La.Code Crim.P art. 912.1. However, because the State dismissed this offense, any procedural issue regarding this charge is moot.

Lastly, the trial court ordered the defendant to pay $9,404.05 in restitution to Mr. Terry’s family. Louisiana Code of Criminal Procedure Article 895.1(A)(1) provides that “[t]he restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” In the present case, the trial court did not provide how the restitution was to be paid. Accordingly, we remand this matter to the trial court for a determination of the manner in which restitution is to be paid pursuant to La. Code Crim.P. art. 895.1. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597; State v. Fontenot, 01-0540 (La. App. 3 Cir. 11/7/01), 799 So.2d 1255.

Excessiveness of Sentence

The defendant argues that the trial court did not properly consider aggravating and mitigating factors in particularizing his sentence. Specifically, the defendant argues:

The court, as required by [La.Code Crim.P art.] 894.1(C), stated for the record the considerations taken into account but those limited considerations show he did not give any weight to any of the factors listed in [La.Code Crim.P. art.] 894.1(B) because, other than fact of the conviction and the victim impact statement, the only other relevant factor given by the judge was the appellant’s criminal history which showed he is a first offender.

The record reflects that the defendant filed a motion to reconsider his sentence pursuant to La.Code Crim.P. art. 881.1. This article requires a defendant to set forth the specific grounds on which a motion to reconsider may be based. La.Code Crim.P. art. 881.1(E). In the present case, the defendant failed to set out the specific ground that the factors of La.Code Crim.P. art. 894.1 were not considered. Accordingly, this |sclaim cannot be reviewed here. Instead, we review this claim only as a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

This court has set out a standard to be used in reviewing excessive sentence claims, as follows:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied,, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original). At the time of this 2005 offense, La.R.S. 14:32.1(B) provided:

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than thirty years. At least one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. If the operator’s blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

| ñIn this case, the trial court imposed a sentence of thirty years at hard labor, with all but eighteen years suspended and the first five years to be served without benefit of probation, parole, or suspension of sentence. On the motion to reconsider, the trial court denied reconsideration of the sentence, but indicated that it would recommend the last portion of his sentence be served in the Steve Hoyle Treatment Center.

At the sentencing hearing, the trial court stated as follows:

The statute in question for vehicular homicide provides for a penalty of between five and thirty (30) years, five of which would be served without benefit of probation, parole or suspension of sentence.
The Court agrees with counsel that this is a case which is tragic to both families. The Court also agrees that the death of the decedent was an accident, but the Court disagrees that the whole episode was an accident. I don’t think that a person can consume what amounts to a fifth of alcohol, believe that they are not impaired and get into a vehicle, and attempt to drive it [sic] and that that kind of action is accidental. This Court believes that that kind of action is deliberate.
There is very little that a Court can do in a case like this. Certainly nothing that the Court can do for the family of the victim, and there’s very little that the Court can do for even the perpetrator or the perpetrators family. The only thing that the Court can do is try to fashion a sentence which it believes complies with the law and which is a fair sentence. In doing so[,]and having read the Victim Impact Statements that have been furnished to the court, having reviewed the criminal record of Tory Landry that the Court ordered, the Court has decided on the following sentence.
It is the sentence of the Court, Mr. Landry, that you serve thirty (30) years at hard labor with the Department of Safety and Corrections. I will suspend all but eighteen (18) years of that. The first five years, or at least five years of that sentence, will be served without benefit of probation, parole, or suspension of sentence. When you are released from imprisonment you will be on five years supervised probation with the Department of Safety and Corrections under the usual conditions of probation of [La.Code Crim.P. art.] 895 and the special conditions that you sign up for probation immediately upon your release; that you observe an in-home curfew from 6:00 p.m. to 6:00 a.m. with electronic monitoring; that as a condition of probation you attend no less than four A.A. meetings per week; that you consume no alcoholic beverages and that you remain drug free during the period of probation. While incarcerated you are to participate in whatever substance abuse 17programs are available to you. I will also order that you make restitution to the family of the victim in the amount of Nine Thousand Four-Hundred Dollars and five cents ($9,404.05).
Okay. Mr. Landry, this is a terrible thing, that’s what happens when people don’t have any regard for themselves or anybody else. So I hope it never happens again.

After reviewing the record, we find no abuse of the trial court’s discretion. First, the defendant admitted that his blood alcohol content was .231 at the time of the accident. Further, the defendant believed that he “passed out at the wheel” while the vehicle was going the wrong way on the highway. Finally, the record reveals that the court considered the fact that although the defendant was motivated and eager to enter alcohol abuse treatment, he had not voluntarily availed himself of the opportunity while in prison thus far.

The defendant argues that because he is not the “worst offender,” the maximum sentence cannot be imposed. Although the defendant is exposed to the maximum period of incarceration in light of the thirty-year sentence, all but eighteen years of the sentence was suspended. Also, the statute provides a mandatory fine of at least two thousand dollars, yet the trial court did not impose this portion of the sentence. Accordingly, the defendant’s assertion that his sentence should be viewed as the maximum possible sentence is without merit.

The defendant points to State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66, wherein this court found the trial court abused its discretion in imposing the maximum sentence for the defendant’s vehicular homicide conviction. The present case is distinguishable. In that ease, Morain killed a motorist who was changing a tire on the side of the road. Morain’s blood alcohol content was measured at .10g. The | «defendant in the present case had a blood alcohol content of .231. See also State v. Morain, 08-1546 (La.App. 3 Cir. 6/3/09), 11 So.3d 733 (wherein this court on remand found that trial court did not abuse its discretion in sentencing the defendant to fifteen years at hard labor, eight years to be served without benefit of parole, probation or suspension of sentence, and to pay a fine of two thousand dollars). This court has upheld similar sentences for defendants with similar blood alcohol content levels to the defendant in the present case. See State v. Franco, 08-1071 (La. App. 3 Cir. 4/1/09), 8 So.3d 790 (this court upheld a sentence of twenty-four years at hard labor with five years being served without the benefit of probation, parole, or suspension of sentence, for a defendant who had a blood alcohol content of .26 when his vehicle collided with another causing the death of a seventeen-year old female); State v. Guillory, 93-1031 (La. App 3 Cir. 4/27/94), 640 So.2d 427, writ denied, 94-1380 (La.9/30/94), 642 So.2d 869 (this court affirmed a sentence of fifteen years at hard labor, the maximum sentence at the time, seven of which were without the benefit of probation or suspension of sentence for a defendant with a blood alcohol content of .29 who killed three persons in a car accident).

In light of these factors, we find that the trial court did not abuse its discretion in imposing its sentence.

DECREE

For these reasons, the defendant’s sentence is affirmed. We remand for the purposes of establishing a specific payment plan for the restitution of $9,404.00 in accordance with La.Code Crim.P. art. 895.1.

SENTENCE AFFIRMED. REMANDED WITH INSTRUCTIONS.

      . 2006 La. Acts No. 294, § 1, changed the law so that the minimum sentence is now five years at hard labor, a least three of which must be served without benefit of probation, parole or suspension of sentence.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Scotty L. WEBRE.
    No. 09-351.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      John Foster DeRosier, District Attorney, 14th Judicial District Court, Carla Sue Sigler, Assistant District Attorney, 14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Scotty L. Webre.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

|, Defendant, Scotty L. Webre, was originally charged with vehicular homicide, a violation of La.R.S. 14:32.1. The bill was later amended to negligent homicide, a violation of La.R.S. 14:32. Defendant pled guilty to the amended charge.

The trial court imposed a sentence of five years at hard labor with credit for time served. The trial court also “order[ed] that at some point” Defendant receive drug treatment if made available to him at the Louisiana Department of Corrections.

Defendant did not file a motion to reconsider sentence. He now comes before this court on appeal asserting his sentence is excessive and that he received ineffective assistance of counsel through failure to file a motion to reconsider. Neither claim has merit. We, therefore, affirm.

FACTS

The State recited the following facts at the guilty plea hearing:

Yes, Your Honor. If called to trial the State would show that on May 11th, 2005 Scotty Webre operated a motor vehicle upon the roads and highways of the state of Louisiana in a manner showing his disregard for the interests of others and that his conduct amounted to a gross deviation below the standard of care expected to be maintained by reasonably careful men under similar circumstances. His operation of that motor vehicle and the resulting gross negligence that he operated it with resulted in the death of an individual who was also operating on the roadway, thereby he killed a human being through gross negligence, all within the confínes of Calcasieu Parish.

DLAW AND DISCUSSION

Excessiveness of Sentence

Defendant joins his first and second assignments of error to challenge the excessiveness of his sentence, as follows:

1. The maximum sentence imposed on this first-time felony offender is nothing more than a needless imposition of pain and suffering and thus a violation of Article 1, § 20 of the Louisiana Constitution and the Eighth Amendment of the United States Constitution.
2. The reasons given by the trial court in support of the imposition of the maximum sentence are not supported by the record and are insufficient to satisfy the mandates of La.Code Crim.P. art. 894.1.

Defendant did not file a motion to reconsider sentence. “Failure to make or file a motion to reconsider sentence ... shall preclude the state or the defendant from raising an objection to the sentence.” La. Code Crim.P. art. 881.1(E). Accordingly, Defendant is relegated to a bare claim of excessiveness, as his arguments on appeal were not properly preserved for appellate review.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 [p. 5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, unit denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 [p. 3]j3(La.5/31/96); 674 So.2d 957, cert denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Defendant was convicted of negligent homicide, a violation of La.R.S. 14:32. This offense carries a maximum sentence of five years with or without hard labor and a possible fine of not more than five thousand dollars. Thus, Defendant received the maximum five years at hard labor.

In State v. Bwmaman, 03-1647, p. 5 (La.App. 3 Cir. 5/12/04), 872 So.2d 637, 641, this court considered the appropriateness oí the imposition of maximum sentences, explaining:
[M]aximum sentences are usually reserved for the most egregious and blameworthy of offenders. State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir.1991), writ denied, 620 So.2d 833 (La.1993). In reviewing the imposition |., of a maximum sentence, the First Circuit has held:
This Court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders, State v. Easley, 432 So.2d 910, 914 (La.App. 1 Cir.1983), or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Chaney, 537 So.2d 313, 318 (La.App. 1 Cir.1988), writ denied, 541 So.2d 870 (La.1989). A trial court’s reasons for imposing sentence, as required by La. Code Crim.P. art. 894.1, are an important aid to this court when reviewing a sentence alleged to be excessive. State v. McKnight, 98-1790 at p. 25, 739 So.2d [343] at 359 [(La.App. 1 Cir.1999) ].
State v. Runyon, [05-36, 05-104, pp. 22-23 (La.App. 3 Cir. 11/2/05),] 916 So.2d [407,] 423-24[,wii denied, 06-1348 (La.9/1/06), 936 So.2d 207],

State v. Runyon, 06-823, p. 12 (La.App. 3 Cir. 12/6/06), 944 So.2d 820, 830, writ denied, 07-49 (La.9/21/07), 964 So.2d 330.

A review of the record reflects that the fifty-year-old Defendant has a prior criminal history including a 1985 conviction for DWI and a 1997 conviction for hit and run. Defendant also has a record for assault, battery, and resisting arrest. The record reveals that the accident involved in this case occurred at 5:00 a.m. on a foggy morning before daybreak. Defendant was speeding on the lefthand side of the roadway, passing three consecutive vehicles, He ran a stop sign and struck the victim.

The trial court reviewed and considered Defendant’s pre-sentence investigation report. He also considered the death of the victim and the impact on the victim’s family. Additionally, the trial court observed that there was evidence of cocaine in Defendant’s system within nine hours of the accident. The court observed | ^Defendant’s lack of remorse, failure to accept accountability, and his continued drug use after the accident as aggravating factors.

Additionally, Defendant’s sentence is comparable to those imposed for the same or similar crimes. In State v. Rogers, 07-276 (La.App. 3 Cir. 10/3/07), 966 So.2d 1212, this court affirmed a sentence of three and one-half years for a conviction of negligent homicide where “[defendant took the victim’s infant son out of the car, hitchhiked home, left the boy on his grandmother’s porch at three o’clock in the morning, and never reported the accident.” Id. at 1215. In making this determination, the court observed the following jurisprudence:

In State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ denied, 04-663 (La.12/24/04), 882 So.2d 1165, the maximum sentence of five years imposed on a conviction for negligent homicide was found not to be excessive even though Hughes was a first time felony offender and the mother of four children. In that case, Hughes attempted to commit suicide by driving at a high rate of speed into the path of an oncoming pick-up truck. The driver of the pick-up was killed. This court stated:
The trial court cited the applicable factors set forth in La.Code Crim.P. art. 894.1, noted Defendant’s lack of a criminal record and letters of support in her favor; but, concluded Defendant’s “wanton and reckless disregard for .the lives and safety of others ... dictates a sentence that fits the nature of this offense.” The trial court did not abuse its discretion in sentencing this Defendant to the five-year maximum term of imprisonment.
In State v. Greg-rich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court affirmed a sentence of three years imposed on a conviction for negligent homicide. Gregrich, who was legally intoxicated at the time, drove his car left of center and hit an oncoming car head on, killing the driver. In State v. Clark, 529 So.2d 1353 (La.App. 5 Cir.1988), the fifth circuit affirmed a three-year sentence imposed on a conviction for negligent Lhomicide. In that case, Clark was also determined to be intoxicated at the time and drove through a stop sign, striking the victim’s vehicle. The victim died as a result of the accident. Clark had previous convictions for driving while intoxicated.

Id. at 1215.

In light of the jurisprudence, Defendant’s maximum sentence of five years at hard labor does not fall outside the norms of Louisiana jurisprudence. Defendant has a prior criminal history, including a conviction for DWI and a conviction for hit and run. He expressed no remorse or responsibility for his actions. Given the trial court’s considerations in fashioning Defendant’s sentence, the court was in compliance with La.Code Crim.P. art. 894.1. Further, Defendant’s five year sentence is not grossly disproportionate to the seriousness of the crime nor does it shock one’s sense of justice. Accordingly, Defendant’s sentence is affirmed.

Ineffective Assistance of Counsel

Defendant contends that trial counsel rendered ineffective assistance of counsel when he failed to file a motion to reconsider the sentence. This court discussed ineffective assistance of counsel for failure to file a motion to reconsider sentence in State v. Findlay, 06-1050, p. 4 (La.App. 3 Cir. 2/7/07), 949 So.2d 609, 611-12. We explained:

This court considered a similar issue in State v. Prudhom/me, 02-511, p. 16 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, 1177, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324, stating:
Failure to file a motion to reconsider the sentence does not necessarily constitute ineffective assistance of counsel. State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99); 734 So.2d 854. Nevertheless, the defendant may have a basis to claim ineffective assistance of counsel when he can show a reasonable probability, but for defense counsel’s error, |7his sentence would have been different. Id. Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99); 748 So.2d 484, writ denied, 00-0544 (La.11/13/00); 773 So.2d 156, this court stated:
A claim of ineffective assistance of counsel is properly raised in an application for post conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.

Id.

After considering the circumstances of the case, the background of the defendant, and the trial court’s considerations of the pre-sentence investigation report and the factors of La.Code Crim.P. art. 894.1, the court in Findlay held that it was “not likely that the trial court would have reduced the Defendant’s sentence if a motion to reconsider had been made.” Id. at 614.

Likewise, given the factual circumstances of this case, Defendant’s criminal history, the impact on the victims, and the trial court’s considerations in fashioning Defendant’s sentence, we conclude that it is not likely that the court would have reduced Defendant’s sentence had defense counsel filed a motion to reconsider sentence. Thus, this assignment of error has no merit.

1 «ERROR PATENT

In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court vacated, as an error patent, the portion of the defendant’s penalty requiring him to participate in a substance abuse program. Whether this condition was imposed as part of his sentence for negligent homicide or his sentence for driving while intoxicated was not clear. Nevertheless, the court observed that “[n]either statute allows the trial court to require participation in a substance abuse program, absent part of the sentence being subject to probation requirements.” Id. at 696. Because Gregrich was not placed on probation, this court held that the trial court’s order to attend substance abuse evaluations was illegal. Id.

Here, the trial court ordered Defendant to undergo drug treatment if the Department of Corrections could accommodate him. The court did not suspend Defendant’s sentence, nor was he placed on probation. Thus, as in Gregrich, the court’s order to undergo drug treatment without placing Defendant on probation was illegal.

This court also noted in Gregrich that, under La.Code Crim.P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review, “when such correction does not involve the exercise of sentencing discretion,” quoting State v. Fraser, 484 So.2d 122 (La.1986). Accordingly, we amend the sentence imposed by the trial court to delete that portion requiring participation in drug treatment.

CONCLUSION

Defendant’s sentence is amended to delete the requirement that the Defendant receive drug treatment. Defendant’s sentence is otherwise affirmed as amended.

AFFIRMED AS AMENDED.


author: AMY, Judge. GENOVESE, J.,

text:
    STATE of Louisiana v. Daryl W. JOHNSON.
    No. 09-231.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Van Hardin Kyzar, District Attorney, R. Stuart Wright, Assistant District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Daryl W. Johnson.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

1 ,The defendant was charged by bill of information with one count of possession of cocaine and one count of obstruction of justice. The defendant was found guilty of possession of cocaine and attempted obstruction of justice. On the possession of cocaine conviction, the defendant was sentenced to five years at hard labor. On the attempted obstruction of justice charge, he was sentenced to one year at hard labor to run concurrently with the possession of cocaine sentence. The defendant now appeals, challenging the sufficiency of the evidence on both convictions. For the following reasons, we affirm.

Facts and Procedural Background

Corporal Keith McDonald of the Natchi-toches Police Department testified that on August 29, 2006, he was traveling on Powell Street when he noticed a pickup truck blocking the roadway. Officer McDonald pulled up behind the truck and observed the defendant, Daryl Johnson, standing outside the driver’s side of the truck. The driver was later identified as Albert Gene Isaac. Officer McDonald testified that he observed what appeared to be a drug transaction between Mr. Isaac and the defendant. Specifically, he testified that Mr. Isaac handed the defendant a clear plastic bag, followed by the defendant handing Mr. Isaac money. The officer testified that as soon as the exchange was made, the defendant noticed the officer and look startled. The defendant then walked in front of the vehicle, entered the vehicle on the passenger’s side, and the driver drove off. Officer McDonald called for backup and proceeded to follow the vehicle.

Lieutenant Brad Walker, with the Natchitoches City Police Department, responded to the call for backup. After Officer McDonald was sure that backup was secured, he turned on his police lights and initiated a traffic stop. Officer McDonald [ ¡.testified that after he initiated the traffic stop, he observed, what he believed to be, a small rock of cocaine fly out of the driver’s side window. Officer Walker also testified that he observed an object fly out of the driver’s side of the truck. Neither Officer McDonald nor Officer Walker could identify which of the two men actually threw the rock. The pickup truck stopped, and both Mr. Isaac and the defendant were arrested. Pursuant to a search of the truck, officers discovered a “baggie” containing white power and a ten dollar bill on the passenger side floorboard. The baggie tested positive for cocaine residue. Officer McDonald admitted he did not know if the baggie found in the truck was the same baggie he saw handed to the defendant. Officer McDonald also recovered a cocaine rock which he testified was the cocaine rock thrown from the pickup truck. Officer Walker and Officer McDonald testified that the street value for the rock of crack cocaine recovered was ten to fifteen dollars.

The defendant was charged by Bill of Information with one count of possession of a controlled dangerous substance classified in Schedule II (crack cocaine) in violation of La.R.S. 40:967(C) , and one count of obstruction of justice by throwing suspected crack rock out of vehicle window in violation of La.R.S. 14:130.1. The defendant entered a plea of not guilty, and the matter proceeded to a trial by jury. The jury returned a guilty verdict for possession of a controlled dangerous substance and a guilty verdict for attempted obstruction of justice. The defendant now appeals, asserting the evidence introduced by the State is insufficient as a matter of law to prove any possession of cocaine and any obstruction of justice on behalf of the defendant.

|sDiscussion

Errors Patent.

Having reviewed this matter in accordance with La.Code Crim.P. art. 920, we find no errors patent on the face of the record.

Possession of Cocaine.

When the issue of sufficiency of the evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert, denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

The defendant was convicted of possession of cocaine, which makes it unlawful for any person to knowingly and intentionally possess a controlled dangerous substance. The State is not required to prove that the defendant was in physical possession of the drug found; constructive possession is sufficient to support a conviction. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910. The law on constructive possession provides:

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it.... Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug....

\Jd. at 913 (quoting State v. Trahan, 425 So.2d 1222, 1226 (La.1983)). Whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: his knowledge that drugs were in the area; his relationship with the person found to be in actual possession; his access to the area where the drugs were found; evidence of recent drug use; his physical proximity to the drugs, and; evidence the area was frequented by drug users. Toups, 833 So.2d 910. The mere presence of someone in an area where a controlled dangerous substance is located or mere association with the person found to be in possession of a controlled dangerous substance does not constitute constructive possession. Id.

Viewing the evidence in the light most favorable to the prosecution, pursuant to the Jackson standard, it is clear that a jury could reasonably conclude that sufficient evidence was presented to support the defendant’s conviction for possession of cocaine. Officer McDonald testified to observing the pickup truck driver hand the defendant a “baggie” in exchange for money. All of the officers who testified described the area, where this transaction took place, as a high drug trafficking area. Officer McDonald testified that he recovered a “baggie” from the passenger’s side of the vehicle, where the defendant was sitting. The baggie recovered contained white residue later confirmed by the crime lab to be cocaine. There was no testimony that other “baggies” were found in the truck or on the defendant’s person. The suspected rock of crack cocaine thrown from the vehicle was also confirmed to be cocaine. In light of this evidence, the defendant’s claim that the possession conviction is unsupported by evidence is without merit.

UAttempted Obstruction of Justice.

Louisiana’s obstruction of justice statute, La.R.S. 14:130.1, provides in pertinent part:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place of review of any such evidence.

Louisiana defines attempt at La.R.S. 14:27 as:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Attempted obstruction of justice is not a legislatively designated responsive verdict listed in La.Code Crim.P. art. 815. In State v. Hopkins, 96-1063, p. 3 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 539-40, this court explained in pertinent part:

Louisiana juries have the power to enter compromise verdicts, where the responsive verdict is legislatively authorized ... Where the defendant acquiesces in the submission of responsive verdicts. The evidence must support either the responsive verdict returned or the crime charged. State v. Porter, 93-1106 (La.7/5/94); 639 So.2d 1137.

| (/The record does not reflect that the defendant objected to the inclusion of the lesser-included offense. Therefore, this court must consider whether the evidence supports a conviction of obstruction of justice or attempted obstruction of justice.

The defendant asserts that the State presented insufficient evidence to support the conviction of attempted obstruction of justice. Both officers at the scene testified that they could not identify who threw the cocaine out of the window, but both definitely testified that the cocaine was thrown out of the driver’s side window.

The statutory rule in evaluating the sufficiency of circumstantial evidence is, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438. The Louisiana Supreme Court has explained the “hypothesis of innocence” stating:

Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

State v. Chism, 436 So.2d 464, 469 (La.1983). A reviewing court does not determine whether a hypothesis offers the defendant an exculpatory explanation of the event; rather, the reviewing court evaluates “evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson [443 U.S. 307, 99 S.Ct. 2781].” State v. Davis, 92-[1623,7 p. 11 (La.5/23/94), 637 So.2d 1012, cert, denied, 513 U.S. 975, 115 S.Ct. 450,130 L.Ed.2d 359 (1994).

In this case, the defendant’s hypothesis of innocence is that the driver of the vehicle threw the rock of cocaine out of the driver’s side window. However, if the evidence is viewed in the light most favorable to the prosecution, as the standard of review requires, the jury could have determined that, after the defendant was witnessed taking the bag from the driver and entering the car, that he took the rock of crack cocaine from the bag and, himself, threw it from the driver’s window. Alternatively, the jury could have concluded that the defendant took the rock of crack cocaine from the bag, and handed it to the driver so that he could throw it from the window. Either theory would satisfy La. R.S. 14:130.1’s definition. Here, the officers witnessed the defendant with the bag before he entered the car and, afterwards, they located only a ten dollar bill and a single baggie containing cocaine residue. This evidence supports the State’s case and does not render the alternative theory that the driver acted alone so likely that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. Accordingly, we find that the State presented sufficient evidence to support the defendant’s conviction of attempted obstruction of justice.

This assignment lacks merit.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions and sentences.

AFFIRMED.

GENOVESE, J., concurs in part, dissents in part, and assigns written reasons.

GENOVESE, J.,

concurs in part, dissents in part, and assigns the following reasons.

hi concur with the majority in the affirmation of Defendant’s conviction and sentence on the charge of possession of cocaine. However, I respectfully dissent from the majority as to the affirmation of Defendant’s conviction and sentence on the charge of attempted obstruction of justice.

The Defendant asserts that the State failed to present sufficient evidence to support his conviction of attempted obstruction of justice. I agree. The record clearly indicates that both eyewitnesses testified that they did not see the Defendant throw anything out of the window. One of the eyewitnesses wrote in the incident report that “the driver threw a crack rock.” This is the crux of the evidence in the record in support of Defendant’s conviction of attempted obstruction of justice. It is uncontroverted that the Defendant was seated in the front passenger’s seat of the vehicle alongside the driver of the vehicle, Albert Gene Isaac, and that the officers saw what appeared to be a rock of crack cocaine fly out of the driver’s window. Mr. Isaac did not testify. No one testified that it was the Defendant who threw the rock of cocaine out of the driver’s window. There was no evidence that he did so, and it cannot be presumed that he did so.

Even under the Jackson standard, the evidence presented by the State to the lyjury is insufficient to prove beyond a reasonable doubt that the Defendant had the specific intent to attempt to obstruct justice. I would reverse the Defendant’s conviction on the charge of attempted obstruction of justice, set aside his sentence, and enter a judgment of acquittal on that charge only.

      . The original Bill of Information read La. R.S. 40:967(A). At trial, the Bill of Information was amended to reflect La.R.S. 40:967(C). The defense did not object.


author: RANDOLPH, Justice,

text:
    Christopher Wayne WALTERS v. STATE of Mississippi.
    No. 2008-CP-01780-SCT.
    Supreme Court of Mississippi.
    Nov. 19, 2009.
    Christopher Wayne Walters (Pro Se).
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. In 2005, Christopher Wayne Walters pleaded guilty to “purchase, possession, transfer or distribution of listed chemical or drug with intent to unlawfully manufacture controlled substance” and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (“MDOC”), with all but one day of the sentence suspended and five years of post-release supervision. In 2007, Walters was arrested and charged with grand larceny. Based thereon, MDOC sought revocation of Walters’s post-release supervision. Thereafter, the Circuit Court of Lauderdale County entered an “Agreed Order of Revocation of Post Release Supervision,” signed by Walters, in which Walters agreed that he had violated conditions of his post-release supervision. According to the order, the State of Mississippi agreed not to present the grand-larceny charge, Walters’s post-release supervision was revoked, and he was ordered to serve the remaining time on his fifteen-year sentence. In July 2008, Walters filed a “Motion to Reinstate Probation” based upon the dismissal of the grand-larceny charge. The circuit court denied Walters’s motion and from that ruling, Walters appeals.

FACTS

¶ 2. On March 31, 2004, Walters was indicted for “purchase, possession, transfer or distribution of listed chemical or drug with intent to unlawfully manufacture controlled substance” pursuant to Mississippi Code Section 41-29-313. As Walters had a prior conviction under the Mississippi Uniform Controlled Substances Act, the State sought “enhanced sentencing” pursuant to Mississippi Code Section 41-29-147. See Miss.Code Ann. § 41-29-147 (Rev. 2009). On April 6, 2005, Walter pleaded guilty, and the circuit court entered its “Order Accepting Guilty Plea and Imposing Sentence.” Walters was:

sentenced to serve a term of fifteen (15) years in the custody of the [MDOC], one (1) days to serve[] ..., and five (5) years on Reporting Post Release Supervision according to the provisions of [S]ection 47-7-34[] ... under the supervision of the [MDOC]. After [Walters] has completed the service of one (1) day in the custody of the MDOC and is honorably discharged therefrom, [Walters] is remanded to the supervision of staff of the [MDOC] ... to serve the post release supervision portion of this sentence.

Regarding post-release supervision, the order provided that:

[y]ou shall comply with the following conditions. Failure to abide by any one of these conditions is sufficient to revoke the post release supervision portion of this order.... It may be revoked for the slightest violation of this order. The conditions are as follows:
(a) The Defendant shall hereafter commit no offense against the laws of this State....
You are hereby advised that under the laws of the State of Mississippi, the [c]ourt shall determine the terms and conditions of your post release supervision, and may at any time during the period of post release supervision alter, modify, extend, terminate, or direct the enforcement of the above sentence.

¶ 3. On July 25, 2007, the Wayne County Justice Court issued an arrest warrant for Walters, relating to the grand larceny of personal property of another having a value of $4,600 or more. Following Walters’s arrest, an MDOC field officer filed a petition requesting the revocation of Walters’s post-release supervision for violation of Condition (a). At the preliminary revocation hearing on October 22, 2007, Walters denied guilt. The hearing officer, however, concluded that there existed “sufficient reasonable cause to hold [Walters] for a formal revocation hearing” before the circuit court. The formal revocation hearing was scheduled for November 15, 2007.

¶ 4. On November 15, 2007, the circuit court entered an “Agreed Order of Revocation of Post Release Supervision” signed by both Walters and his attorney. The order provided, in pertinent part, that Walters “has not properly conducted himself and agrees that he has violated the conditions of his Post Release Supervision in material respect by: Condition (a) [t]hat [Walters] committed the felony offense of taking the personal property of another with a value in excess of $500.00 in Wayne County, Mississippi.” (Emphasis added.) Accordingly, Walters’s post-release supervision was revoked, and he was “ordered to serve [fourteen (14) years and [t]hree hundred and sixty four (364) days with the [MDOC] with credit for 107 days time served.... ” Additionally, the order stated that “[t]he State agrees not to present the [g]rand [l]arceny committed on July 23, 2007 to the Wayne County [cjourthouse.”

¶ 5. On July 29, 2008, Walters filed a “Motion to Reinstate Probation,” asserting that the grand-larceny charge “was dismissed on Nov[.] 15, 2007 for failure to provide [Walters] with a ... speedy trial....” On October 9, 2008, the circuit court denied Walters’s motion “due to the lack of jurisdiction of this [c]ourt.” Specifically, the circuit court determined that:

[plursuant to Mississippi law, the [c]ourt has no authority to change, reduce or clarify a sentence once the term of court in which the defendant was sentenced is over and the defendant begins serving said sentence.
The [c]ourt further finds that this Order is not a final judgment which may be appealed. [Walters] may not appeal this Order in forma pauperis without first obtaining written permission of this court.

¶ 6. On October 19, 2008, Walters filed both his “Notice of Appeal” and “Motion to Proceed In Forma Pauperis.” As to Walters’s “Notice of Appeal,” the circuit court reiterated that “[p]ursuant to Mississippi law, [o]rders denying or revoking the reinstatement of probation are not appeal-able.” The circuit court further dismissed Walters’s “Motion to Proceed In Forma Pauperis” as “frivolous.” By amended order, the circuit court added that Walters “may not appeal this Order in forma pau-peris without first obtaining written permission of this court.”

¶ 7. However, on January 5, 2009, an order of this Court provided that Walters’s “Motion to Reinstate Probation” was “within the purview of the Mississippi Uniform Post-Conviction Collateral Relief Act ” and, therefore, the circuit court was given thirty days in which “to determine Walters’ indigency status and whether Walters should be permitted to proceed in forma pauperis on appeal.” (Emphasis added.) On January 27, 2009, the circuit court entered its “Order Granting Petitioner Leave to Proceed In Forma Pauperis.”

ISSUE

¶ 8. This Court will consider:

Whether the circuit court erred in denying Walters’s “Motion to Reinstate Probation.”

ANALYSIS

¶ 9. Preliminarily, this Court addresses the issue of the circuit court’s jurisdiction. The January 5, 2009, order of this Court found that Walters’s “Motion to Reinstate Probation” was “within the purview of the Mississippi Uniform Post-Conviction Collateral Relief Act.” Mississippi Code Section 99-39-5(l)(h) provides, in pertinent part, that:

(1) Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation ... may file a motion to vacate, set aside or correct the judgment or sentence, ... if the person claims:
(h) That his sentence has expired; his probation, parole or conditional release [was] unlawfully revoked; or he is otherwise unlawfully held in custody....

Miss.Code Ann. § 99-39-5(l)(h) (Rev.2009) (emphasis added). The State maintains that this statute is inapplicable as Walters’s:

claim ... was not so much that his post-release supervision had been unlawfully revoked, as it was that it should have been reinstated in light of an event subsequent to that revocation, namely, that the grand larceny charge had been (allegedly) dismissed. [Walters] does not assert, so far as we can see, that the revocation, at the time it occurred was unlawful. He appears to assert that the alleged subsequent event of the dismissal of the grand larceny charge meant that he had the right to be reinstated to post-release supervision.

(Emphasis added.) However, the State concedes that this Court previously has considered a petition for reinstatement of parole under the Mississippi Uniform Post-Conviction Collateral Relief Act. See Williams v. Castilla, 585 So.2d 761, 763-64 (Miss.1991). Accordingly, this Court concludes that the circuit court should have construed Walters’s “Motion to Reinstate Probation” as a motion for post-conviction relief over which it retained jurisdiction. Therefore, the circuit court’s basis for denying post-conviction relief, insofar as it was based upon the lack of jurisdiction, was contrary to the law.

¶ 10. Thus, this Court considers whether the circuit court’s error was harmless, to the extent that Walters’s motion was without substantive merit. See Steen v. State, 933 So.2d 1052, 1056 (Miss.Ct.App. 2006) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)) (“[w]hile the circuit court may have erroneously based its denial of the petition for post-conviction relief as being time-barred, we are not restricted to the circuit court’s reasons for the result it reached”).

¶ 11. Mississippi Code Section 99-39-11(2) provides that “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal....” Miss.Code Ann. § 99-39-11(2) (Rev.2009). Whether or not Walters’s post-release supervision was “lawfully revoked” hinges upon whether there was a “sufficient showing” that Walters had violated a condition of thereof. Alexander v. State, 667 So.2d 1, 4 (Miss. 1995). In making that determination, Walters’s arrest alone is insufficient, rather there must be “proof of an actual conviction, or that a crime has been committed and that it is more likely than not that [Walters] committed the offense.” Brown v. State, 864 So.2d 1058, 1060 (Miss.Ct. App.2004). The State maintains that:

[w]hile certainly the basis for the action to revoke post-release supervision arose from the fact that [Walters] had been arrested for grand larceny, it is very clear that revocation was not ordered on the mere fact that [Walters] had been so arrested. The revocation was ordered in light of [Walters’s] agreement to revocation, evidently in return for the State’s agreement not to proceed with the grand larceny charge. In making that agreement — and it should be borne in mind that the prisoner does not say that he did not make that agreement or that it was in somewise defective — ’[Walters] necessarily admitted having committed grand larceny. This was a sufficient basis on which to revoke his post-release supervision.

(Emphasis added.) This Court agrees. According to the “Agreed Order of Revocation of Post Release Supervision,” signed by Walters, he agreed that he had violated Condition (a) of his post-release supervision by “committing] the felony offense” of grand larceny. In exchange for the revocation of post-release supervision and imposition of the fifteen-year sentence on the prior conviction, the State agreed “not to present the [g]rand [l]arceny” charge. Following entry of that agreement, Walters then reversed course, as the State argues, “attempting] to have the benefit of the bargain and to avoid his end of the bargain.” Based upon Walters’s admission within the “Agreed Order,” this Court finds there was a “sufficient showing” that Walters had violated a condition of his post-release supervision. Alexander, 667 So.2d at 4. Accordingly, this Court concludes that the circuit court’s denial of Walters’s “Motion to Reinstate Probation” was correct, albeit for different reasons than those stated by the circuit court.

CONCLUSION

¶ 12. Based upon the aforementioned analysis, this Court affirms the circuit court’s denial of Walters’s “Motion to Reinstate Probation.”

¶ 13. AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . See Miss.Code Ann. § 41-29-313 (Rev. 2009).

      .On September 13, 1996, Walters pleaded guilty to possession of methamphetamine in the Circuit Court for the Second Judicial District of Jones County, Mississippi, and was sentenced "to serve a term of one year in the custody of the [MDOC], to be served in the House Arrest Program....”

      . Therefore, fourteen years and 364 days of the sentence were suspended.

      . Post-release supervision is "conducted in the same manner as a like period of supervised probation....” See Miss.Code Ann. § 47-7-34(2) (Rev.2009).

      . This Court notes that the alleged order of dismissal is absent from the record.