author: GRAVOIS, J.

text:
    STATE of Louisiana v. Patricia A. MEADOWS
    NO. 16-KA-553
    C/W 16-KP-628
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, PATRICIA A. MEADOWS, Patricia Meadows, Bruce G. Whittaker
    Panel composed of Jude G. Gravois, Robert A. Chaisson, and Robert M.. Murphy
   GRAVOIS, J.

1 defendant, Patricia A. Meadows, appeals her convictions and sentences for armed robbery (count one), attempted armed robbery (count two), and four counts of forgery (counts three, four, five, and six). She also appeals her adjudication as a second felony offender under La. R.S. 15:529.1 and her ensuing enhanced sentence on count two. For the following reasons, we affirm defendant’s convictions and sentences on counts one and two, and finding errors patent, we vacate the indeterminate sentences imposed by the trial court on counts three, four, five, and six, and remand the matter to the trial court for resentencing on counts three, four, five, and six, and for imposition of an enhanced sentence on count two under La. R.S. 15:529.1. Further, we grant.appellate counsel’s motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY

On February 4, 2015, the Jefferson Parish District Attorney filed a six-count bill of information charging defendant, Patricia A. Meadows, with armed robbery, a violation of La. R.S. 14:64 (count. one); attempted armed robbery, a violation of La. R.S. 14:27 and 14:64 (count two); and forgery, a violation of La. R.S. 14:72 (counts three, four, five, and six). Defendant pled not guilty at her arraignment that same day.

On August 27, 2015, defendant withdrew her pleas of not guilty, and after being advised of her Boykin rights, pled guilty as charged to all six counts. In accordance with the plea agreement, defendant was sentenced to twenty-five years imprisonment with the Department of Corrections on count one; 24.75 years |2(twenty-four years and nine months) imprisonment with the Department of Corrections on count two; and purportedly ten years imprisonment with the Department of Corrections on counts three, four, five, and six., All counts were ordered to be served concurrently with one another, and counts one and two were ordered to be served without the benefit of probation, parole, or suspension of sentence.

Also on August 27, 2015, the State filed a habitual offender bill of information on count two, alleging defendant to be a second felony offender. Defendant stipulated to the habitual offender bill of information after being advised of her rights. Prior to accepting defendant’s stipulation, the trial court advised defendant that she would be “sentenced to incarceration for 24.75 years with the Department of Corrections” on count two, pursuant to the habitual offender plea agreement, as a second felony offender under La. R.S. 15:529.1, without the benefit of probation, parole, or suspension of sentence.

On August 17, 2016, defendant filed an application for post-conviction relief. The trial court construed defendant’s application for post-conviction relief as a request for an out-of-time appeal, and on August 22, 2016, granted defendant an out-of-time appeal. Defendant’s appeal follows.

FACTS

Because defendant’s convictions were the result of guilty pleas, the facts underlying the crimes of conviction are not fully developed in the record. Thus, lathe facts were gleaned from the factual basis for the offenses provided by the State at the , guilty plea proceeding.

The State submitted that if it had proceeded to trial, it would have proven beyond a reasonable doubt that defendant, on November 22, 2014, while in the Parish of Jefferson, “violated Louisiana Revised Statute 14:64 in that she did rob the Smoothie King while armed with a dangerous weapon”—a knife. The State further asserted that- it would have also proven beyond a reasonable doubt that on that same date, while in the Parish of Jefferson, defendant violated La. R.S. 14:27 and 14:64 “in that she did attempt to rob Planet Beach while armed with a dangerous weapon”—a knife. Lastly, the State maintained that it would have proven beyond a reasonable doubt that defendant committed four counts of forgery, in violation of La. R.S. 14:72. Specifically, with respect to count three, the State argued it would have proven that between October 20, 2014 and October 21, 2014, while in the Parish of Jefferson, defendant violated La. R.S. 14:72 in that she did “issue, transfer, possess with the intent to defraud a forged writing known by Patricia Meadows to be forged.” Furthermore, with respect to counts four, five, and six, the State argued that it would have proven beyond a reasonable doubt that between May 11, 2005 and June 14, 2014, defendant “violated Louisiana Revised Statute 14:72 three times while in the Parish of Jefferson in that she did issue, transfer, or possess with the intent to defraud a forged check for TriCity Body Shop. Those check numbers were Check Number 5215, Check Number 5219, and Check Number 5216.”

ERRORS PATENT REVIEW

Initially, upon our errors patent review, we have noticed errors patent on the face of the record concerning 1) the purported sentences defendant received on | ¿counts three, four, five, and six; and 2) the lack of imposition of an enhanced sentence on count two under La. R.S. 15:529.1.

First, the record is unclear as to whether defendant received separate, individual sentences on counts three, four, five, and six, respectively. The transcript reflects that the trial court stated: “On Counts 3 through 6, you’re sentenced as follows: You’re sentenced to 10 years with the. Department of Corrections. We order that you receive credit for time served while awaiting trial in this matter. This sentence runs concurrent with all other counts filed herein .... ” Thus, it is unclear as to whether defendant was sentenced to 10 years on each of the four counts of forgery, or 10 years total on all four counts. Defendant’s convictions of four counts of forgery require the imposition of four separate sentences. See State v. Soco, 94-1099 (La.App. 1 Cir. 6/23/95), 657 So.2d 603. Further, it is well settled that a defendant can appeal from a final judgment of conviction only where sentence has actually been imposed. La. C.Cr.P. art. 912(C)(1); State v. Chapman, 471 So.2d 716 (La. 1985) (per curiam). Thus, based on the transcript, we find defendant’s sentences on counts three, four, five, and six to be indeterminate. Defendant’s appeal of her convictions and sentences .on counts three, four, five, and six is thus not properly before this Court at the present time.

Second, the record reflects that the trial court failed to actually impose an enhanced sentence on count two under La. R.S. 15:529.1. The transcript indicates that after defendant was advised of her habitual offender rights, the following discussion took place:

THE COURT: Oh, okay. And you had left out the amount of the sentence. Is it 25 years that she’s agreeing to or y’all agreed to the 24.75?
THE STATE: 24.75, Your Honor.
LTHE COURT: Okay. And that you will be sentenced to incarceration for 24.75 years with the Department of Corrections, that this entire sentence is without benefits of probation, parole, or suspension of sentence. Have you been coerced or forced into entering this plea?
DEFENDANT: No, sir.
THE COURT: ■ Are you satisfied with the representation by your counsel?
DEFENDANT: Yes, sir.
THE COURT: I’m entirely satisfied that the defendant understands the consequences of her plea, she’s made a knowing, intelligent, free, and voluntary act of plead- • ing guilty, there’s a factual basis for the plea. I inform the defendant that she has 30 days from this date to appeal this conviction and two years after the judgment of conviction and sentence become final to seek post-conviction relief. Good luck. . ■ ,
(END OF PROCEEDINGS)

(Emphasis added.)

Thus, according to the transcript,' defendant was advised by the trial court of what her enhanced sentence would be; however, after accepting defendant’s stipulation to the habitual offender bill of information as knowing, intelligent, free, and voluntary, the trial court failed to actually sentence defendant to her enhanced, sentence of 24.75 years as a second felony offender on count, two. Defendant’s appeal of her adjudication as a habitual offender under La. R.S. 15:529.1 is thus not properly before this Court at the present time.

Thus, in light these errors patent on the face of the record, we vacate the indeter-mínate sentences imposed by the trial court on counts three, four, five, and six, and remand the matter to the trial court for resentencing on counts three, four, five, and six, and for imposition of an enhanced sentence on count two under La. R.S. 15:529.1.

|f|ANALYSIS OF CONVICTIONS AND SENTENCES ON COUNTS ONE AND TWO

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 886 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 appellate counsel requests permission to withdraw as counsel of record, for defendant.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw as counsel of record for defendant 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) (quotation omitted).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court • stated that an Anders brief need not tediously catalog every mer-itless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The court explained that an Anders brief must demonstrate by full |7discussion 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, 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.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel asserts that defendant entered an unqualified guilty plea to both the original charging document and to the habitual offender pleading, waiving all non-jurisdictional defects. He further notes that while defendant in her application for post-conviction relief contends that her pleas are constitutionally infirm due to errors in the prosecutor’s recitation of facts, defendant has waived her. right to seek review of this claim on appeal because she entered an unqualified guilty plea, and failed to object to the charged offenses listed by the- State during the -plea proceedings. Appellate counsel also maintains that although it appears defendant was erroneously advised as to the potential maximum sentence available on the habitual offender bill filed on count . two, there is no indication that this error violated due process, rendered her pleas involuntary, or was in.any way meaningful in the plea bargaining process. He also avers that although the 1 ^transcript does not indicate defendant’s original sentence on count two was vacated prior to imposing the enhanced sentence, the minute entry/commitment makes clear that the original sentence on count two was vacated, eliminating any confusion as to the terms of defendant’s confinement. Finally, appellate counsel asserts that there does not appear to be anything in the record to support a claim that defendant’s pleas were not knowing and intelligent. He concludes that defendant’s plea bargain áppears to have been advantageous to defendant and that the sentences were imposed in accordance with the plea agreement.

Appellate counsel has also filed a motion to withdraw as counsel of record for defendant which states that an appeal would be wholly frivolous for the reasons stated in the accompanying brief. He further submits that a copy of his motion to withdraw, accompanying Anders brief, and a Pro Se Briefing Notice have been mailed to defendant. Additionally, this Court sent defendant a letter by certified mail informing her that an Anders brief had been filed on her behalf and that she had until November 16,- 2016, to file a pro se supplemental brief. On November 7, 2016, this Court granted defendant’s motion for an extension of time within which to file a supplemental brief, ordering therein that defendant had until December 7, 2016 to file a pro se supplemental brief. After one additional extension, a final extension was granted ordering that defendant had until February 3, 2017 to file a pro se supplemental brief in this matter. On January 30, 2017, defendant filed a pro se supplemental brief in this matter raising two assignments of error.

The State responds that appellate counsel has shown a conscientious and thorough review of the procedural history of the case with references to the record. The State agrees that appellate counsel has “cast an advocate’s eye” over the record and has correctly determined there are no non-frivolous issues to raise on appeal. Accordingly, the State concludes that appellate counsel has conformed 19with and followed the procedures set forth in Anders and Jyles, supra, and should be granted permission 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 as to counts one and two.

The bill of information properly charged •defendant and plainly and concisely stated the essential facts constituting the charged offenses. It also sufficiently identified defendant and the crimes.charged. See generally La. C.Cr.P. arts. 464-466.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against her. She attended her arraignment, her guilty plea proceeding, her sentencing, and her habitual offender bill proceeding. As such, defendant’s presence does not appear to present any issues that would support an appeal.

Further, defendant pled guilty as charged to armed robbery (count one) and attempted armed robbery (count two). If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 6 Cir. 3/14/06), 926 So.2d 662, 664, An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304. The record also indicates that defendant filed a pre-torial motion to sever offenses for trial, which was granted by the trial court. There were no other pre-trial motions filed, ruled upon, or preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

| ^Additionally, a review of the record reveal's no irregularities in defendant’s guilty pleas as to counts one and •two. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).

The record shows that defendant was aware that she was pleading guilty to one count of armed robbery in violation of La. R.S. 14:64 (count one), and one count of attempted armed robbery in violation of La. R.S. 14:27 and 14:64 (count two). Defendant was also properly advised of her Boykin rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of her right to a judge or jury trial, her right to confrontation, and her privilege against self-incrimination. On the waiver of rights form, defendant made an affirmative notation next to these rights and placed her signature at the end of the form, indicating that she understood she was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that she understood that she was waiving these rights.

Defendant admitted that she committed the charged offenses. Defendant indicated that she understood the possible legal consequences of pleading guilty and confirmed that she had not been foreed, coerced, or intimidated into entering her guilty pleas. Defendant was also informed that her guilty pleas could be used to enhance a penalty for any future conviction. Further, defendant was informed during the colloquy and by means of the waiver of rights form of the sentencing Inranges for the offenses as well as the actual penalties that would be imposed upon acceptance of her guilty pleas. After his colloquy with defendant, the trial judge accepted defendant’s guilty pleas as knowingly, intelligently, freely, and voluntarily made.

Lastly, defendant’s sentences on counts one and two do not appear to present issues for appeal. Her sentence on count one falls within the sentencing ranges prescribed by statute. See La. R.S. 14:64. Her sentence on count two falls within the sentencing ranges prescribed by statute. See La. R.S. 14:27 and 14:64. Further, defendant’s sentences on counts one and two were imposed pursuant to, and in conformity with the plea agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of her sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir, 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

For the foregoing reasons, defendant’s convictions and sentences on counts one and two are affirmed.

Further, because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he 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 hereby grant appellate counsel’s motion to withdraw as counsel of record for defendant.

j j¿PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In her first pro se assignment of error, defendant argues that her guilty pleas are constitutionally infirm having not been entered freely and voluntarily. She alleges two ■ grounds in support of her claim: 1) that the State and the trial court failed to articulate the essential elements of the charged offenses; and 2) that she was misinformed of , the mandatory minimum and maximum sentencing range as a second felony .offender on her conviction for attempted armed robbery (count two). Accordingly, defendant' avers that based on these deficiencies, she did not enter into her guilty pleas intelligently and knowingly-

To the extent defendant is arguing about an inadequate factual basis given for her guilty pleas as to counts one and two, it is well established that under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal. State v. Johnson, 08-449 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-0787 (La. 12/18/09), 23 So.3d 932. In the present case, defendant entered unqualified guilty pleas as to counts one and two, waiving all non-jurisdictional defects. Defendant neither objected to the factual basis for the charged offenses on counts one and two given by the State during the plea proceedings, nor to the trial court’s acceptance of it. Therefore, defendant waived her right to now seek review of this claim on appeal.

Moreover, the trial court was not required to ascertain a factual basis before accepting the guilty pleas as to counts one and two. When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a -need for such an inquiry. Only in that-event does due process require a judicial-finding of significant factual basis for the defendant’s I isplea. State v. Smith, 09-769 (La.App. 5 Cir. 3/9/10), 38 So.3d 894, 896 n.1, writ denied, 10-843 (La. 11/5/10), 50 So.3d 812; State v. Yates, 41,247 (La.App. 2 Cir. 9/27/06), 940 So.2d 147, 150-151; State v. Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724, 730, writ denied, 04-2634 (La. 2/18/05), 896 So.2d 30.

Here, defendant was represented by counsel, entered unqualified pleas of guilty as to counts one and two, and at no point in the proceedings did she proclaim her innocence. Defendant admitted that she committed the charged offenses as to counts one and two, and indicated that she understood the consequences of pleading guilty to counts one and two. Based on a review of the record, we .find that -the trial court was not required to ascertain a factual basis before accepting defendant’s guilty pleas to counts one and two. .

Moreover, to the extent defendant is also arguing that the trial court failed to personally inform her of the “essential elements” of the charged offenses as to counts one and two, her argument is misplaced. La. C.Cr.P. art. 556.1 outlines the duty of the court when accepting a plea of guilty in felony cases, providing, in pertinent part, the following:

A. In a felony ease, the court shall not accept a plea of guilty or nolo conten-dere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided -by law.

La. C.Cr.P. art. 556.1(A)(1). (Emphasis added.)

Further, in State v. Respert, 14-769 (La. App. 5 Cir. 2/25/15), 168 So.3d 839, 845, writ denied, 15-604, (La. 1/25/16), 184 So.3d 1288, this Court stated the following:

The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, .the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. Violations of Article 556.1 that do not rise to the level of 1 uBoykin violations are subject to harmless error analysis. To determine whether a violation of Article 556.1 is harmless, the proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty.

Respert, supra (citing State v. Wilson, 12-819 (La.App. 5 Cir. 5/16/13), 118 So.3d 1175, 1177).

Subsection E of La. C.Cr.P. art. 556.1 further provides that “[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the- plea.” The failure to fully comply with Article 556.1 is a statutory breach, rather than a constitutional breach, and thus, the defendant is required to show prejudice as a result of the error. Respert, supra (citing Wilson, supra).

In the present case, defendant acknowledged that she understood the nature of the charges against her as to counts one and two. The State provided a detailed factual basis for the charged offenses as to counts one and two, and defendant admitted to having committed the offenses as to counts one and two as described by the State. Having found defendant to be aware of the nature, of the crimes as to counts one and two to which she. was pleading guilty, .the trial court found a factual basis for the pleas and accepted her pleas of guilty- to counts one and- two as knowing and intelligent. The transcript also reflects defendant never asked any questions regarding the nature of the charges as to counts one ánd two' during the plea colloquy or made any indication that she did not understand the nature of the charges or any of the elements.

Therefore, we find that defendant' has failed to establish that she'lacked awareness of the elements or' that this unawareness resulted in her miscomprehension of the éssential nature of the offenses as to counts one and two to which she pled. Further, we find that the record’ does not show sufficient prejudice to support defendant’s claim. See Respert, 168 So.3d at 846; Wilson, 118 15So.3d at 1179. Accordingly, defendant’s first argument in this assignment of error is without merit.

As noted above, in this assignment of error, defendant also argues that she was misinformed of the mandatory minimum and maximum sentencing range as a second felony offender on her conviction for attempted armed robbery (count two), and thus, based on this deficiency, she argues that she did not enter into her guilty pleas intelligently and knowingly. However, considering our finding in our error’s patent review regarding defendant’s enhanced sentence—that the trial court failed to actually impose an enhanced sentence on count, two—and the fact that the matter is being remanded for imposition of an enhanced sentence on count two under La. R;S. 15:529.1, we pretermit any review of defendant’s argument in this assignment of error regarding her enhanced sentence.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In her final pro se assignment of error, defendant contends her counsel was ineffective based on the alleged errors raised in defendant’s first pro se assignment of error. Namely, defendant asserts that her counsel was ineffective for allowing her to plead guilty without the State or the judge having first explained the elements of the charged offenses, and for misinforming the court regarding the mandatory maximum sentence she would be exposed to as a second felony offender for her attempted armed robbery conviction. Accordingly, she prays that this Court allow her to withdraw her guilty pleas, or order an evidentiary/contradictory hearing to allow for further development of her ineffective assistance of counsel claim.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance | inof trial counsel. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient; and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924-930.8. Taylor, supra.

Upon review, we find that the record in the instant matter contains sufficient evidence to rule on the merits of defendant’s claim, and thus, we will address it in the interest of judicial economy. Defendant’s contention that her trial counsel was ineffective for allowing her to plead guilty without the State or the judge having explained the elements of the charged offenses to her, as described above in defendant’s pro se assignment of error number one, lacks merit, and therefore did not prejudice defendant. Further, defendant’s plea and stipulation are supported by the record and appear to be an advantageous consequence of the plea-bargaining |17process. Accordingly, the record is devoid of any indication that defendant has been prejudiced by an inadequate advisal regarding the nature of the charges to which she pled guilty; thus, we find that defendant cannot meet the second prong of the Strickland test. State v. Ott, 12-111 (La.App. 5 Cir. 10/16/12), 102 So.3d 944, 954, writ denied, 15-0230 (La. 11/06/15), 181 So.3d 697. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences on counts one and two are affirmed, and finding errors patent, the indeterminate sentences imposed by the trial court on counts three, four, five, and six are vacated, and the matter is remanded to the trial court for resentencing on counts three, four, five, and six, and for imposition of an enhanced sentence on count two under La. R.S. 15:529.1. We further grant appellate counsel’s motion to withdraw as counsel of record for defendant.

CONVICTIONS ÁND SENTENCES ON COUNTS ONE AND TWO AFFIRMED; SENTENCES ON COUNTS THREE, FOUR, FIVE, AND SIX VACATED; REMANDED FOR RESEN-TENCING ON COUNTS THREE, FOUR, FIVE, AND SIX AND FOR IMPOSITION OF ENHANCED SENTENCE ON COUNT TWO; MOTION TO WITHDRAW GRANTED

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

      . On thát same day, defendant pled guilty to two counts of misdemeanor theft. An appeal was lodged with respect to defendant’s misdemeanor convictions. On November 23, 2016, this Court converted defendant’s misdemean- or appeal into a writ application—designated as 16-KP-628—and consolidated defendant's writ application for docketing and opinion with the appeal of defendant’s felony convictions lodged in the instant matter, designated as docket number 16-KA-553. On January 3, 2017, this Court provided defendant with a final extension until February 3, 2017 to file a supplemental pro se appellate brief and a pro se application for supervisory review in the consolidated matters. To date, defendant has only filed a pro se supplemental appellate brief in the appeal for her felony convictions. Accordingly, defendant’s misdemeanor convictions'are not before us for review.

      . Although the trial court did not say “at hard labor” when sentencing defendant, the court did state that defendant’s sentences were to be served "with the Department of Corrections.” This Court has previously held that when the trial judge states that the defendant is sentenced to the "Department of Corrections,” the sentence is necessarily at hard labor; therefore, no corrective action is necessary. See State v. Martin, 10-710 (La.App. 5 Cir. 5/24/11), 70 So.3d 41, writ denied, 11-1367 (La. 2/3/12), 79 So.3d 1023, cert. denied, 568 U.S. 839, 133 S.Ct. 142, 184 L.Ed.2d 69 (2012).

      . See errors patent discussion, infra, concerning errors patent regarding defendant’s sentencing on counts three, four, five, and six.

      . The trial court further recommended that defendant participate in any and all treatment programs available through the Department of Corrections.

      . The habitual offender bill alleged that on January 15, 2010, defendant pled guilty in Division "F” of the Twenty-Fourth Judicial District Court, Parish of Jefferson, under case number 08-4156, to violating La. R.S, 14:67.10—theft of goods over three hundred dollars—and was sentenced on that same date to serve two years imprisonment at hard labor.

      . See errors patent discussion, infra, concerning errors patent regarding defendant’s enhanced sentencing on count two.

      . The transcript reflects the incorrect statute (La. R.S. 14:62) was referenced with respect to this count of forgery. It appears that the State either misspoke or there is a typographical error in the transcript. La. R.S. 14:62 relates to the crime of simple burglary and does not match the forgery description provided by the State in reference to the charged offense. Further, the correct statute—La. R.S. 14:72—is charged in the bill of information with respect to count three.

      . Moreover, although the commitment reflects that an enhanced sentence was imposed, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

      . We note that prior to imposing an enhanced sentence on courit two under La. R.S. 15:529.1, the trial court will be required to vacate the underlying sentence on count two.

      . 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 (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).

      . At the time the offenses were committed, a conviction under La. R.S. 14:64 carried a term of imprisonment at hard labor for not less than ten nor more than ninety-nine years without the benefit of probation, parole, or suspension of sentence.

      . La. R.S. 14:27 provides, in pertinent part: D. Whoever attempts to commit any crime shall be punished as follows:

      (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fíne, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

      . Notably, defendant did not enter her guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 30, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which would have required a factual basis to support the pleas.

      . As previously noted, considering our finding in our error's patent review regarding defendant's enhanced sentence—that the trial court failed to actually impose an enhanced sentence on count two—and the fact that the matter is being remanded for imposition of an enhanced sentence on count two under La. R.S. 15:529.1, we pretermit any review of defendant's argument in this assignment of error regarding her enhanced sentence.


source: Caselaw Access Project

author: LILJEBERG, J,

license: Public Domain

text:
    STATE of Louisiana v. Alejandro BRAVO
    NO. 16-KA-562
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA: Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Gretna, Andrea F. Long, Michael D. Smith, Jr., Lindsay Truhe
    COUNSEL FOR DEFENDANT/APPELLANT, ALEJANDRO BRAVO: Bruce G. Whittaker
    Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. . Liljeberg . ,
   LILJEBERG, J,

| defendant appeals his conviction for sexual battery upon a juvenile under the age of thirteen. For the following reasons, we affirm..

FACTS AND PROCEDURAL HISTORY

On September 23, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Alejandro Bravo, with sexual battery upon a juvenile under the age of thirteen by touching the victim’s. genitals in violation of La. R.S. 14:43.1. On that same date, defendant was arraigned and pleaded not guilty. On May 16 and 17, 2016, the case was tried before a twelve-person jury, which found defendant guilty as charged.

On June 1, 20.16, defendant, filed a Motion for New Trial and a Motion to Declare Article 782(A) Unconstitutional Because It Allows For a Non-Unanimous Verdict. On June 2, 2016, the trial judge denied both motions. On June 6, 2016, the trial judge sentenced defendant to imprisonment at hard labor for thirty years without the benefit of parole, probation, or suspension of sentence and advised defendant of the sex offender registration requirements. The trial judge granted defendant’s motion for appeal on June 9,2016.

FACTS

On March 9, 2013, K.O. asked her mother-in-law, S.M., to take care of her young daughters, N.R. and V.O., so she could take her mother to a baby shower. N.R. was seven years old at that time. S.M. and defendant, her live-in boyfriend of five years, picked up N.R. and V.O. from KO.’s house and brought them back to their apartment in Metairie. N.R. testified that she was sitting on the couch next to defendant while S.M. was on. a computer, located in the same room, searching for a video .they could watch. N.R. testified that defendant touched her on her vagina Land hurt her by putting his finger in her vagina. N.R. complained that this hurt and defendant moved his hand away.

N.R. also testified that defendant touched her “private’-’ before March 9, 2013. She remembered once that she and defendant were alone in the. kitchen at her grandmother’s house where she and her parents lived. N.R. stated she was sitting on defendant’s lap at the kitchen table. N.R. testified that defendant touched her “private spot” under, her panties and that it hurt..

N.R. also recalled that another time, they were in the living room at her great-grandmother’s home. She explained that her mother and father were on the couch and that defendant was “doing it” under the blanket. N.R. said that defendant did not hurt her that time. N.R. testified that it was hard to remember every time defendant did this to her and every detail from when she was seven years old; however, she noted that she would not lie about something so serious and that she was telling the truth about the times defendant touched her.

S.M. testified that when they arrived at her apartment on March 9, 2013, N.R. jumped onto defendant’s lap for a second, but S.M. told N.R. to get off. S.M. recalled saying in her statement that N.R. then said, “Don’t touch my hooha,” which meant “private” or “vagina” to N.R. S.M. testified that N.R. told her that defendant had touched her several times before, but that N.R. told her that it did not happen that day. S.M. also stated that defendant later told her nothing had happened. S.M. said she then called K.O. and told her what N.R. said about defendant touching her vagina. Afterward, S.M. took N.R. and V.O. home.

When N.R. arrived home, KO.’s husband spoke to N.R. and based on that conversation, K.O. decided to call 9-1-1. She explained that S.M. tried to stop her and asked her'to give defendant a week so he could run. While K.O. was calling 9-1-1, S.M. ran out of the door and got into her van. KOI overheard S.M. telling defendant on the phone to “get out now and run” because K.O. was calling the Rpolice. The police arrived at K.O’s home and after conducting interviews, they instructed K.O. to bring N.R. to the emergency room at Children’s Hospital.

Sergeant Terri Danna of the Jefferson Parish Sheriffs Office Juvenile Crime Division testified that, on March 11, 2013, she was assigned to follow-up on the investigation in the instant case. She further testified that she went to K.O.’s house the next day and talked to K.O., who told her that she sent her daughters to her mother-in-law’s apartment and that her mother-in-law .called her later in the afternoon to tell her that N.R. said that defendant touched her inappropriately. Sergeant Danna then went into N.R.’s bedroom and spoke to N.R. alone. When Sergeant Danna asked N.R. if she liked visiting S.M. and defendant, N.R. responded affirmatively, but said that sometimes defendant “digs in my private place and sometimes it hurts.”

Based on that information, Sergeant Danna scheduled an interview for N.R. at the Jefferson Children’s Advocacy Center, which occurred on March 27, 2013. Sergeant Danna monitored the interview in an adjacent office. She explained that N.R.’s statements at the Advocacy- Center were consistent with what N.R. told her on March 12, 2018, Afterward, Sergeant Dan-na obtained an arrest warrant for defendant; however, she was unable to arrest him because she could not find him. She spoke to S.M., who said' that defendant had moved and she did not know where he went. Sergeant Danna was unable to locate defendant through his employer and suspended the investigation pending defendant’s apprehension. Defendant was eventually apprehended in Minnesota in May 2015.

"Erika Dupepe testified that she was employed by the District Attorney’s Office and assigned to the Advocacy Center. Ms. Dupepe conducted a videotaped interview of N.R. at the Advocacy Center. In that videotaped interview, N.R, explained that defendant put his finger in her vagina more than one time. N.R. asserted that sometimes it happened in the kitchen at her house when she was |4sitting on his lap. N.R. explained that defendant was sitting on a chair at a table and he touched her vagina under the table. N.R. stated that the last time it happened was at S.M.’s apartment while they were sitting on the couch in the living room. At that time, N.R. was sitting on defendant’s lap and S.M. was looking at her computer. She stated that defendant “digged” in her vagina on the couch.

Defendant testified that on the day of the alleged incident, he was sitting with S.M. on the couch. S.M. told N.R. to pick up her toys, but she would not. Defendant explained that N.R: stood up, came by him, and tried to sit on his .lap, but S.M. said, “No.” Defendant stated that N.R. kept walking, stood up by his side, and said, “Why are you touching me?” He testified that he did not touch N.R. inappropriately. Defendant said that S.M. screamed, “What did you say?,” and N.R. said defendant touched her. Defendant recalled S.M. stating that was not true and that she did not see anything. Afterward, S.M. brought N.R. to the bathroom and then home.

Defendant testified that shortly thereafter, he received a call from S.M. informing him that N.R.’s family called the police. Defendant was afraid and called his friend, who picked him up. He claimed he was in Louisiana for approximately six weeks, after which he left. Defendant stated that he got jobs in New York and Minnesota, respectively, and stayed one year in each place. Defendant claimed he left Louisiana because he had two daughters, one of whom had many medical bills. Defendant testified that he never touched N.R. inappropriately at any time and that he was never alone with N.R.

LAW AND DISCUSSION

In his first assignment of error, defendant argues the trial judge erred by allowing the State to ask prospective jurors hypothetical questions during voir dire, which sought a commitment regarding evidence and issues to be decided in the Lease. Defendant specifically objects to questions regarding (1) whether the prospective jurors could rely on witness testimony in the absence of DNA evidence; (2) whether the prospective jurors would expect there to be physical evidence in a crime of a sexual nature and whether they would need such evidence in order to find someone guilty as charged; (3) whether the prospective jurors would be less likely to believe the victim in this case if the victim did not immediately report the crime; and (4) whether the trial judge improperly asked a prospective juror if she would be able-to find a person guilty based upon the testimony of one witness or one victim.

During voir dire, the State told the prospective jurors they would not hear DNA evidence in this case and asked them whether they could rely on witness testimony in the absence of DNA evidence. Defense counsel objected, arguing that the State was getting into possible facts of the case. The trial judge overruled the objection.

The record also reflects that later in voir dire, the State asked prospective jurors whether in a crime of a sexual nature, they would expect to see physical evidence, whether the prospective jurors would need physical evidence in order to find someone guilty as charged, and whether anyone would expect there to be DNA evidence in a sexual battery' case where an adult touched a child’s penis. The State also asked prospective jurors if the victim in this case did not immediately report the crime, would that make thém less likely to believe her. Defense counsel did not lodge objections to any of these inquires.

Lastly, the record indicates that during a bench conference, the trial judge asked whether there were any challenges for cause, and the State responded that -it was challenging Ms. Bodden, a prospective juror. The trial judge asked Ms. Bodden to approach the bench and to confirm whether she said that she could not find'a defendant guilty based on the testimony of one witness or victim. Ms. |fiBodden confirmed that this was her position. The trial judge asked defense counsel if he had any questions. Defense counsel stated that he objected to the form of the question because there would be more- than one witness testifying in the instant matter, and the trial judge noted his objection.

.In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841; State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La. 10/3/03), 855 So.2d 294. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. Id. Also, a defendant is limited to the grounds for objection that he articulated in the trial court, ’ and a new’ basis for the objection may not be raised for the first time on appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594.

..In the instant case,, the record indicates that defense counsel only lodged an objection to the State’s, inquiry as to whether the prospective jurors could rely on witness testimony in the absence of DNA evidence. He did not lodge objections to the State’s other inquiries regarding other physical evidence and the failure to immediately report a crime, which he now raises on appeal.

Additionally, with respect to the trial judge’s question to Ms. Bodden, defense counsel only objected to the form of the question asked by the trial judge based on counsel’s position that the hypothetical was inaccurate because more than one witness was expected to testify at trial. On appeal, defendant now contends the trial judge’s question was improper because his hypothetical sought, a commitment from the prospective juror on an issue to be decided at trial. This is different from the ground raised , during voir dire. Therefore, we find that |7defendant only, preserved the first issue regarding the DNA evidence for appeal and all other issues raised regarding the voir dire questions are waived.

The Sixth' Amendment of the United States Constitution guarantees the accused the right to a trial by an impartial jury. State v. Nelson, 09-807 (La.App. 5 Cir. 3/23/10), 39 So.3d 658, 661. Included in this right to an impartial jury is the right to an adequate voir dire to identify unqualified jurors. United States v. Beckner, 69 F.3d 1290, 1291 (5th Cir. 1995). Article I, § 17(A) of the Louisiana Constitution grants a criminal defendant the right to a full ahd complete voir dire. “The court, the state, and the defendant shall have the right to examine prospective jurors.” La. C.Cr.P. art. 786. The purpose of voir dire is to give counsel the opportunity to determine the qualifications of prospective jurors by testing their competency and impartiality and to formulate’ reasons for cause and peremptory challenges. State v. Ball, 00-2277 (La. 1/25/02), 824 So.2d 1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002).

Although a court has discretion to restrict voir dire, it must nevertheless afford the attorneys wide latitude in examining prospective jurors as a means of giving effect to an accused’s right to a full voir dire. State v. Thibodeaux, 98-1673 (La. 9/8/99), 750 So.2d 916, 924, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). It is permissible for voir dire questions to “reasonably explore the juror’s potential prejudices, predispositions or misunderstandings relevant to the central issues of the particular case.” State v. Duplessis, 457 So.2d 604, 606 (La. 1984). Nevertheless, Louisiana law provides that a party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case. Id.

The trial court is granted broad discretion in regulating the conduct of voir dire, and its rulings will not be disturbed on appeal absent a clear showing of an | Sabuse of discretion. La. C.Cr.P. art. 786; Ball, 824 So.2d at 1110. In, eyaluating the fairness of the trial judge’s ¡ruling, the entire voir dire examination, should be considered. State v. Housley, 05-502 (La.App. 5 Cir. 1/31/06), 922 So.2d 669, 662, writ denied, 06-1183 (La. 11/17/06), 942 So.2d 531.

In State v. Munson, 12-327 (La.App. 5 Cir. 4/10/13), 115 So.3d 6, writ denied, 13-1083 (La. 11/22/13), 126 So.3d 476, during voir dire, the State explained the law regarding convictions based on witness testimony alone without corroborating physical evidence to prospective jurors. The State then questioned prospective jurors about their ability to apply this law since it was a relevant issue in the case. This Court found that the trial court did not allow improper hypothetical questioning because the State did not seek to acquire any prejudgment conclusions, concerning the facts of the case. Id. at 13.

In State v. Mitchell, 13-426 (La.App. 3 Cir. 11/6/13), 125 So.3d 586, writ denied, (La. 6/20/14), 141 So.3d 807, the State asked prospective jurors if they could convict based on eyewitness testimony alone and defense counsel objected ' on the grounds that the question was an improper hypothetical. The trial court overruled the objection. On appeal, the Third Circuit found the State’s questions wére permissible in order to allow the State to determine whether the prospective jurors could follow the law that a positive identification by a single witness was sufficient to support a conviction. Id. at 598.

Also, in State v. George, 08-1115 (La. App. 4 Cir. 1/28/09), 4 So.3d 175, 179-180, the State told the jurors that no fingerprint evidence would be presented and asked prospective jurors if they could return a guilty verdict if the- State proved the case beyond a reasonable doubt, .but did not submit fingerprint evidence. The Fourth Circuit concluded that such an inquiry was not improper and did not violate the proper scope of voir dire. Id. at 179-80,

Ijn the instant case, the record reflects that during ,voir dire, the State told the prospective jurors that they would not hear DNA evidence in this case and asked them whether they could rely on witness testimony in the absence of DNA evidence. Defense, counsel objected, arguing that the State was getting into possible facts of the case. Similar to Munson and George, supra,, the State in the instant case sought to evaluate the prospective jurors’ ability to apply the law regarding witness testimony in the absence of DNA evidence. As such, we find the State did not seek to acquire any pre-judgment conclusions concerning the facts of the instant ease and did not improperly allow hypothetical questioning. Therefore, this assignment of error is without merit. .

In his second assignment of error, defendant argues the trial judge erred by denying his motion challenging the constitutionality of La. C.Cr.P. art. 782(A), which provides that ten of twelve jurors must concur to render a verdict in cases where punishment is necessarily confinement at hard labor. He further argues that a non-unanimous verdict violates due process and the U.S. Sixth and Fourteenth Amendments.

The' State contends this claim should not be considered on appeal because defendant did not raise the issue prior to trial, and further failed to object when the trial court charged the jury on the voting requirements and when the jury returned its verdict. The State further responds that defendant failed to serve the Louisiana Attorney General with the motion he filed after trial. In addition, the record contains no reference tó or appearance by a representative of the Office of the Louisiana Attorney General at the post-trial hearing. The State finally contends that even if defendant properly preserved this issue for review, defendant would | mstill not be entitled to relief because the United States Supreme Court has determined that the United States Constitution does not require unanimous jury verdicts in felony criminal trials conducted in state court, and the argument has similarly been rejected by numerous Louisiana courts.

The record indicates' ten jurors found defendant guilty of sexual battery on a victim under the age of thirteen years and two jurors found defendant not guilty. Defendant did not challenge the constitutionality of La. C.Cr.P. art. 782(A) prior to trial. Defendant did not object to the jury charge instructing the jurors regarding the requirement that ten of the twelve jurors must concur to render a verdict. Finally, defendant did not object to the verdict at the time it was rendered. Rather, defendant challenged the constitutionality of La. C.Cr.P. art. 782(A) for the first time in the motion he filed two weeks after the jury found him guilty as charged.

La. C.Cr.P. art. 841 provides that an error. cannot be availed of 'after verdict unless it was objected to at the time of the occurrence. In order to seek appellate review of an alleged trial court error, a party must make a contemporaneous objection at trial, and he must state the grounds for the objection. La. C.Cr.P. art. 841; State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030; Gaal, 800 So.2d at 949. Furthermore, a post-conviction motion is not the proper procedural vehicle to attack the constitutionality of La. C.Cr.P. art. 782(A). See State v. Ellis, 13-1401 (La.App. 4 Cir. 2/4/15), 161 So.3d 64, 82, writ denied, 15-489 (La. 1/15/16), 184 So.3d 704 (“The Louisiana Code of Criminal Procedure makes no provision for the filing of a post-conviction motion to declare jury unanimity laws unconstitutional,”)

In addition, the record indicates that defendant failed to serve or otherwise notify the attorney general regarding the motion challenging the constitutionality of La. C.Cr.P. art. 782(A). In State v. Veal, 11-44 (La.App. 5 Cir. 12/28/11), 83 11So.3d 211, 213-14, writ denied, 12-2373 (La. 4/5/13), 110 So.3d 1072, this Court declined to address the merits of a similar assignment of error because defendant did not serve the attorney general with his motion challenging the constitutionality of the statute. Due to the failure to raise this issue prior to the verdict and the failure to properly serve the attorney general, defendant is not entitled to review by this Court.

ERROR PATENT DISCUSSION

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

Neither the transcript nor the commitment indicates that the trial court advised defendant of the time period for seeking post-conviction relief as provided in La. C.Cr.P. art. 930.8. It is well settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See Brooks, 103 So.3d at 615. Accordingly, we now advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

AFFIRMED

      . In accordance with La. R.S. 46:1844(W)(3), the victim, who is a minor, and the victim’s family members will be referred to by their initials to protect the victim’s identity. See State v. Hernandez, 14-863 (La.App. 5 Cir. 9/23/15), 177 So.3d 342, 345, n.1.

      . La. C.Cr.P. art. 797(4) provides that the State or the defendant may challenge a juror for cause on the ground that the juror will not accept the law as given to him by the court. Under Louisiana law, in the absence of internal contradiction or irreconcilable conflict with physical ¡evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75 (La.App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied, 05-2591 (La. 5/26/06), 930 So.2d 20.

      . La. C.C.P. art. 1880 provides that if a statute is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.

      . Even if this issue was properly before us on appellate review, the Louisiana Supreme Court and this Court have long held that non-unanimous jury verdicts for twelve-person juries are not unconstitutional in non-capital cases. State v. Edwards, 420 So.2d 663, 674 (La. 1982); State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 743; Brooks, 103 So.3d at 613-14.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Otis D. WASHINGTON
    NO. 16-KA-732
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Angel G. Varnado
    COUNSEL FOR DEFENDANT/APPELLANT, OTIS D. WASHINGTON, Bruce G. Whittaker
    Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

hln this appeal, Defendant seeks review of his convictions, claiming there was insufficient evidence to convict him. For the reasons that follow, we affirm Defendant’s convictions. ■

On July 10, 2015, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Otis D. Washington, with two counts of possession of a firearm by a convicted felon in violation of La. R.S. 14:95,1 (counts one and two); aggravated assault with a firearm in violation of La. R.S. 14:37.4 (count three); and aggravated criminal damage to property in violation of La. R.S. 14:55 (count four). Defendant pled not guilty and proceeded to trial on April 25, 2016. After a two-day trial, a 12-person jury found Defendant guilty as charged on all four counts. Two days later, the State filed a multiple bill of information as to count four, alleging Defendant to be a third felony offender based on a 2014 predicate conviction for unauthorized use of a movable and a 2010 predicate conviction for simple robbery.

On May 2, 2016, the trial court sentenced Defendant to 20 years at hard labor without benefit of parole, probation or suspension of sentence and a $5,000 fine each on counts one and two; 10 years at hard labor and a $5,000 fíne on count three; and 15 years at hard labor and a $5,000 fine on count four. The trial court ordered the sentences to run .concurrently with each other.

Defendant initially denied the allegations in the multiple bill, but subsequently stipulated to his status as a third felony offender at a multiple bill hearing on May 19, 2016. The trial court vacated Defendant’s original .sentence on count four and imposed an enhanced sentence under the multiple offender statute |Pof 20. years at hard labor without benefit of probation or suspension of sentence, to run concurrently with Defendant’s other sentences. -

FACTS

Sometime between 9:00 a.m. and 10:00 a.m. on April 28, 2015, the victim, David Quazel Roberts, and his friend, Cassandra, wént to get breakfast at Duncan’s, a corner store which is located down the street from Defendant’s mother’s house on Warren Street in Kenner. As they were leaving the store, Mr. Roberts heard Defendant’s voice. Mr. Roberts could not clearly see Defendant because he was not wearing his glasses. When Mr. Roberts asked Cassandra who it was, Cassandra stated that it was Defendant. According to Mr. Roberts,' Defendant was holding a gun, looked like he was crying “like somebody had made him mad,” and was “talking and saying a bunch of yackking [sic] what he was going to do,” specifically that he was going to kill Mr.. Roberts. Defendant paced back and forth across the street from the store while Mr. Roberts and Cassandra walked to Mr.. Roberts’ car, a 1997 gold Buick LeSabre.

Mr. Roberts testified that Cassandra told .Defendant not to shoot since she was in the car. Defendant responded to Cassandra with profanity. Mr. Roberts exchanged further profanities with Defendant and led Defendant to believe he was armed, even though he was not. Once Mr. Roberts and Cassandra were in the vehicle, Mr. Roberts started to back up and then hit the accelérator, at which time Defendant started firing. The first shot hit the door of the vehicle, and the second shot hit the window, breaking it. Through the rearview window, Mr. Roberts saw Defendant stop shooting and run towards his mother’s house on Warren Street. |sMr. Roberts then called his mother and asked her to call Defendant’s mother to tell Defendant “to chill.” .

The next day, April 29, 2015, Mr. Roberts was stopped at a red light on a two-lane road in Jefferson Parish when a red Suburban pulled alongside of him. Mr. Roberts saw Defendant, who was armed with a gun, hanging out of the window and waving. Mr. Roberts also saw several other people in the vehicle, all of whom were armed with guns. Fearing for his life, Mr. Roberts ran the red light.

Later that night, at approximately 11:20 p.m., Mr. Roberts called 9-1-1 from a parking lot near Zephyrs Stadium in Me-tairie to report the two incidents. Officer Danny Julian with the Jefferson Parish Sheriffs Office responded to the call and met with Mr. Roberts and his mother in the Zephyrs Stadium parking lot. Officer Julian testified that Mr. Roberts reported that Defendant, along with several males, drove up on the side of him, while he was sitting in his vehicle at a red light, and pointed an assault rifle at him. Mr. Roberts also reported an incident that occurred in Kenner where shots were fired at him while he was inside his vehicle. Officer Julian observed that Mr. Roberts’ vehicle had a bullet hole and shattered windows. Officer Julian described Mr. Roberts’ demeanor as very afraid and nervous. He took Mr. Roberts’ statement about the first reported incident and contacted the Kenner Police Department regarding the second reported incident since it occurred in Kenner.

Officer Joseph Scamardo with the Ken-ner Police Department responded to the Zephyrs Stadium parking lot on April 30, 2015, at 12:40 a.m. He took Mr. Roberts to the Kenner Police complex where he took Mr. Roberts’ statement and crime scene took photos of Mr. Roberts’ vehicle, which had several bullet holes and two shattered windows. No projectiles were located in the vehicle. Officer 14Scamardo stated that Mr. Roberts, via his cellphone, provided a photograph of Defendant obtained from Facebook. Mr. Roberts indicated that the handgun Defendant was brandishing in the Facebook photograph was the same handgun he observed Defendant use in the shooting incident.

After taking Mr. Roberts’ statement, Officer Scamardo went to Duncan’s to search the area in an attempt to locate shell casings or other stray projectiles. Officer Sca-mardo testified that he was unable to find any evidence, there was no available surveillance footage of the area, and no 9-1-1 calls were placed following the shots. Nonetheless, Officer Scamardo obtained an arrest warrant for Defendant.

Defendant was subsequently arrested on May 7, 2015, at his girlfriend’s apartment in Metairie by the United States Marshall’s Fugitive Task Force. At the time of his arrest, Defendant did not have any firearms on his person and no firearms were collected from the apartment in the arresting officer’s presence.

In his defense, Defendant presented the sole testimony of his employer, who testified that Defendant worked on both April 28th and 29th from approximately 3:00 p.m. until 10:00 p.m. Defendant’s employer did not know Defendant’s whereabouts before or after his shifts.

ISSUE

In his sole assignment of error, Defendant challenges the sufficiency of the evidence. Specifically, he argues that the State failed to prove the existence and use of a firearm, an essential element of each offense. He contends that no firearms, projectiles, casings, or ammunition were recovered at the scene of the crimes or at his girlfriend’s residence. Defendant argues that although the Facebook photographs were suggestive of guilt, they were not properly authenticated to prove that the object depicted was “in fact” a firearm. He further | ¡¡asserts that there were no witnesses to testify to the incident besides the uncorroborated testimony of the victim himself.

LAW & ANALYSIS

In reviewing the sufficiency of the evidence, an appellate court must determine 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). Under the Jackson standard, a review of the record for 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. Ohlsson, 12-708 (La.App. 5 Cir. 4/24/13), 115 So.3d 54, 60, writ denied, 13-1583 (La. 1/17/14); 130 So.3d 343.

Defendant was convicted of two counts of possession of a firearm by a convicted felon, one count of aggravated assault with a firearm, and one count of aggravated criminal damage to property. On appeal, he argues the State failed to prove an essential element of each offense, namely the existence and use of a firearm.

The crime of possession of a firearm by a convicted felon prohibits “any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony.. .to possess a firearm or carry a concealed weapon.” La. R.S. 14:95.1(A). A “firearm” is defined in La. R.S. 14:95.1(D) as “any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.”

[^Additionally, aggravated assault with a firearm is defined in La. R.S. 14:37.4 as “an assault committed with a firearm.” For purposes of the offense, a firearm is defined as “an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.” La. R.S. 14:37.4(B). Assault is “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. And, a battery is “the intentional use of force of violence upon the person of another.” La. R.S. 14:33,

Also, contrary to Defendant’s contention that all of the charged offenses required the existence or use of a firearm, aggravated criminal damage to property does not require the existence or use of a firearm. Rather, aggravated criminal damage to property “is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.”

The record shows that the victim testified that on two separate occasions he saw Defendant with a gun. In the first incident outside of Duncan’s, the victim testified that Defendant “pulled his pistol out” and that it had a “long clip.” The victim was later shown a photograph of Defendant holding a gun, and the victim identified the gun as the one Defendant had when he shot at the victim. The victim explained that Defendant fired his gun and struck his car, leaving a bullet hole in the car and shattering the windows. The responding police officers both testified that the victim’s car had a bullet hole in it and that its windows were shattered.

The victim also testified that Defendant had a gun in the second incident when Defendant pulled alongside his car. In his statement to the police, the victim specifically identified Defendant’s gun as an assault rifle.

Additionally, the State presented evidence of two jailhouse phone calls placed by Defendant the day after his arrest. In the first jailhouse phone call, Defendant stated:

[7Man tell her to go at dude with a stack and tell that ni**a to drop the charges, man, ya heard me. B*tch ass ni**a out his fucking mind...yea, man, say, make, sure you stay on that sh*t, you heard me? can’t let that man (inaudible) I’m the shooter man, you heard me
Yea, man, you heard me. F*ck around and whack that boy when I get out of here man, (inaudible)
Yea,, cuz cuz he had ratted, at first though, .you .heard me, you know what I’m saying. Say man get that ni**a to um, man you heard me, drop the charges, tell her ... Make a ni**a sign an .affidavit or something you heard me ... Cuz F*ck I already for the I already paid for the window you heard me
... I’m taking about Quazell man, you heard me? ... man the man, never paid the people that’s why the f*ck I’m in here. [Emphasis added.]

In the second jailhouse phone call, Defendant stated:

[T]hem batches just came in here, I gotta see the judge, them b*tches just came in here. Picture them batches said aggravated assault, aggravated criminal damage and felony with a firearm
where the criminal damage come in at? where they felony with a firearm? them b*tches ain’t got no firearm on me, you heard me. See what I’m saying?
***
Bruh you gotta make moves bruh. Don’t make no moves and I don’t come .out there.
***
Man Quazelh ... he the main character. The ■ people ain’t going to move off. ..Look, the people ain’t going to move off nobody else word but his[.]

Despite the fact no firearms, projectiles, casings, or ammunition were discovered during the investigation, we find the above evidence sufficient to show that Defendant was in possession of a firearm on two separate occasions, committed aggravated assault with a firearm, and committed aggravated criminal damage to property.

| sThe credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bonilla, 15-529 (La.App. 5 Cir. 2/24/16); 186 So.3d 1242, 1256, writ denied, 16-567 (La. 5/2/16); 206 So.3d 881, cert. denied, — U.S. -, 137 S.Ct. 239, 196 L.Ed.2d 183 (2016). It is not the function of the appellate court to second guess the credibility of witnesses as determined by the trier of fact absent impingement on the fundamental due process of law. Id. Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson, 11-12 (La.App. 5 Cir. 12/29/11); 87 So.3d 881, 893, writ denied, 12-279 (La. 6/15/12); 90 So.3d 1059.

We note that the mere fact that the State was unable to retrieve and produce the gun does not render the evidence insufficient to find Defendant guilty of possession of a firearm by a convicted felon. See State v. Gilliam, 14-228 (La.App. 3 Cir. 10/1/14); 149 So.3d 354, 359. The jury clearly believed the victim’s testimony that Defendant possessed a gun on two occasions and that Defendant fired a gun on one of those occasions, striking and damaging the victim’s car. The physical evidence, namely the photograph of the victim’s car showing a bullet hole and shattered windows, corroborated the victim’s testimony. Additionally, Defendant admitted the day after his. arrest in a jailhouse phone call that he was the shooter. Thus, regardless of whether a firearm was recovered, the victim’s testimony, the Defendant’s statement, and the physical evidence sufficiently show that Defendant possessed an instrument capable of firing ammunition under La. R.S. 14:95.1 and propelling bullets under La. R.S. 14:37.4.

IsViewing the evidence in a light.most favorable to the State, we find that a rational trier of fact could have concluded that Defendant possessed a firearm on two separate occasions and used a firearm to commit aggravated assault.

Although Defendant does not challenge the sufficiency of the evidence regarding any other element of the offenses for which he was convicted, We note the record sufficiently proves that Defendant intentionally placed the victim in reasonable apprehension of receiving a battery for purposes of aggravated assault. Defendant fired several shots at' the victim while he was in his car. Additionally, the victim testified that Defendant drove up alongside him armed with an assault rifle the day after shooting at him and after threatening to kill him.

We also find the evidence sufficiently proved aggravated criminal damage to property. The victim testified Defendant fired several shots at him while he was in his vehicle, striking the car and shattering the windows. Photographs of the victim’s car show a bullet hole and shattered windows. This is sufficient to show that the damage was inflicted when it was foreseeable that human life might be endangered. See State v. Bradstreet, 16-80 (La.App. 5 Cir. 6/30/16); 196 So.3d 876, 886-87, where this Court found sufficient evidence to support the defendant’s conviction for. aggravated criminal damage to property where photographs reflected multiple bullet holes to a vehicle parked in the,driveway at the scene of the crime.

Accordingly, we find the evidence presented sufficiently supports all four of Defendant’s convictions.

ERRORS PATENT

We reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 and find one error .that requires correction.

First, contrary to the sentencing transcript, the commitment fails to show that counts two, three,' and four were to be served at hard labor. While hard labor mandatory for count two (possession of a firearm by a convicted felon) under La. R.S. 14:95.1, the imposition of a sentence with hard labor is discretionary under counts three (aggravated assault with a firearm) and four (aggravated criminal damage to property). The commitment also fails to indicate that a fine of $5,000 was imposed on each count three and four. Under La. R.S. 14:37.4 (aggravated assault with a firearm) and La. R.S. 14:55 (aggravated criminal damage to property), the imposition of a fine is discretionary.’

When there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983). Accordingly, we find it necessary to remand the matter for correction of the commitment. While we recognize that Defendant’s original sentence as to count four was vacated whén he was resentenced as a multiple offender, we nonetheless order the trial court to correct the commitment in its entirety to ensure an accurate record.

Second, there is no corresponding count for the listed offense date “[o]n or between 04/28/2015 and 04/29/2015” on the uniform commitment order. It appears this listed offense date corresponds to count three (aggravated assault with a firearm), as indicated in the amended bill of information. Additionally, the uniform commitment order fails to reflect the $5,000 fine on each of the four counts. Thus, on remand, it is ordered that the uniform commitment order be corrected to reflect that the above offense date pertains to count three and to include the $5,000 fine on each count.

Upon correction of the original commitment and the original uniform commitment order, the Clerk of Court for the 24th Judicial District Court is ordered to transmit the corrected commitments to the officer in charge of the institution to which Defendant has been sentenced as well as to the Legal Department for the Louisiana Department of Public Safety and Corrections. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142.

| ^DECREE

For the above reasons, we find the presented evidence sufficiently supports Defendant’s convictions for two counts of possession of a firearm by a convicted felon, aggravated assault with a firearm, and aggravated criminal damage to property. Accordingly, Defendant’s convictions are affirmed. We remand the matter for correction of the original commitment and uniform commitment order as indicated above.

CONVICTIONS AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENTS

      . We note that the multiple offender bill was filed before Defendant was sentenced. Under La, R.S. 15:529.1(D)(1)(a), a multiple bill may be filed “at any time, either after conviction or sentence.”

      . Cassandra did not testify at trial. The victim stated that Cassandra refused to go to the police because she believed Defendant was crazy and she had outstanding warrants. He further stated that he did not give her name to the police.

      . Mr. Roberts testified that he and Defendant - - grew up together and were very close. He also testified that his mother and Defendant’s mother, Ms. Billy, were close.

      . Mr. Roberts testified that approximately one month earlier, he and Defendant had an argument during which Defendant accused Mr. Roberts and his brother of taking a gun from him. Mr. Roberts denied the accusation at the time, but Defendant "got hot headed” and said he was going to kill him. That was the .last time Mr. Roberts saw Defendant prior to the April 28, 2015 incident.

      .In his statement to the police, Mr. Roberts indicated he was at the intersection .of Wilker Neal and Jefferson Highway when the incident occurred. At trial, Mr. Roberts stated, "We was at the red light, I think it was Filmore whatever it was.” We note that Wilker Neal and Filmore are in the same area. They both intersect Jefferson Highway and are only two streets apart.

      . Although not challenged by Defendant,- we note that the State presented a certified conviction packet showing Defendant pled- guilty to simple robbery in 2010, which sufficiently established Defendant was a convicted felon for purposes of La. R.S. 14:95.1.


author: CHEHARDY, C.J.

text:
    Larry CLARKE, Jr. v. Juanita Narcisse CLARKE
    NO. 16-CA-669
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, LARRY CLARKE, JR., Floyd J. Falcon, Jr.
    COUNSEL FOR DEFENDANT/APPELLANT, JUANITA NARCISSE CLARKE, Anthony T. Marshall
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   CHEHARDY, C.J.

Lin this appeal, Juanita Narcisse Clarke appeals the trial court’s award of child custody, child support, and dependent tax credit. For the following reasons, we affirm in part, but vacate the August 1, 2016 judgment entirely and the child support award from the July 25, 2016 judgment, reinstate the child support award from the February 3, 2016 Order, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On March 31, 1989, Juanita and Larry Clarke, Jr. were married. Thereafter, the parties established their matrimonial domicile in St. James Parish. Three children were born of the marriage but only one child is a minor at the center of this matter.

On August 19, 2015, Larry filed a Petition for 102 Divorce seeking: joint custody of L.N.C., whose date of birth is April 2, 2002, with designation of himself as domiciliary parent; child support from Juanita; the right to declare L.N.C. as a dependent on Larry’s state and federal income taxes; exclusive use of the community home; and other demands not pertinent to this appeal. Juanita answered and reconvened, demanding joint custody with designation of herself as domiciliary parent; child support for L.N.C.; exclusive use of the community home; and interim and final spousal support.

On November 12, 2015, the trial judge ordered the parties to mediation and set a hearing on the pending motions for February 3, 2016.

On December 7, 2015, through new counsel of record, Juanita filed a Rule for Child Custody, Child Support, Spousal Support, and Use of the Family Home, asserting that it was in the best interest of the minor child, L.N.C., that the parties have joint custody with Jpanita designated as the domiciliary parent with reasonable visitation in favor of Larry. Juanita further prayed for child support, |2interim spousal support, final spousal support for 180 days after the judgment of divorce, use of the family home, and drug testing for Larry. This Rule was set for hearing on February 3, 2016.

According to the minute entry, the trial court held a hearing on February 3, 2016. The record before us does not contain a transcript of that hearing. The record, does, however, contain the “Court Form Order,” signed by both parties, their counsel, and the trial judge. That Order awarded: “interim shared custody” of L.N.C. with week-to-week exchanges on Tuesday; child support of $279.34/month commencing 2/15/16 payable in bi-weekly equal installments; exclusive use of the community home' to Larry with responsibility for the mortgage; and other matters not subject to this appeal. Some evidence of Larry’s income was introduced at that hearing and is included in the record before this Court.

In that Order, the trial court also set trial for May 3, 2016, which was continued until June 23, 2016. At the June trial, two witnesses testified: Juanita and Larry. Further, three documents were entered into evidence: a pay statement for Larry for the pay period from 9/28/15 through 10/11/15; .a pay statement for Juanita for the pay period ending 10/17/2015; and a photograph of a vehicle. At the close of the evidence, the trial court took the matter under advisement.

On July 25, 2016, the trial judge rendered a “considered decree,” ordering that “the parties shall continue sharing custody of the minor child, [L.N.C.] equally on a week-tó-week basis with exchanges on Tuesday;” setting “final child support” at $3.87/month; awarding exclusive use of the family home to Larry; denying" Juanita’s request for spousal support; and awarding Larry the right to claim L.N.C. [¡¡on his federal and state income taxes during odd-numbered years. Juanita appeals that judgment.

DISCUSSION

■ On appeal, Juanita raises three assignments of error: first, the trial judge erred in ruling on child custody as the issue had already been agreed upon by consent of the parties; second, the trial judge erred in the calculation of child support by imputing the incorrect gross income amount to the appellee and in failing to apply the calculation of child support retroactively to the date of filing; and, third, the trial judge erred in failing to allow the appellant to claim the minor child on her federal and state income tax returns.

Due to a legal error by the trial court, we commence our analysis with. Juanita’s second assignment of error, in which- she argues that the trial judge erred in his calculation of child support. Our review reveals a legal error that requires that the final child support award be vacated and the matter remanded.

A legal error occurs when a trial court applies incorrect principles of law, and such errors are prejudicial. Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 247 (citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La. 1993)). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id- Where one or more legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the Lrecord is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731, 735; McCaffery v. McCaffery, 13-692 (La.App. 5 Cir. 4/9/14), 140 So.3d 105, 114.

In a shared custody - situation, such as this, the determination of an award of child support is made pursuant to Lá. R.S. 9:315.2, which states: ■.

A. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together- with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party, provided such request is filed in a-reasonable time prior to the hearing. Failure to timely file-the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
B. If a party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.11.
C. The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.
D. The court shall determine the basic child support obligation amount from the schedule in R.S. 9:315.19 by using the combined adjusted gross income of the parties and the number of children involved in the proceeding, but in no event shall the amount of child support be less than the amount provided in R.S. 9:315.14.
E. After the basic child support obligation has been established, the total child support obligation shall be determined as hereinafter provided in this Part. (Emphasis added.)

| Jn a shared custody arrangement, La. R.S. 9:315.9(B) provides that “Worksheet B reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this section.”

In the present case, at the June 23, 2016 trial, the parties introduced two documents regarding child support: a copy of a pay statement for Larry for the pay period from 9/28/15 through 10/11/15 and a copy of a pay statement for Juanita for the pay period ending 10/17/2015. Under direct examination, Larry testified that, by June 23, 2016, he had become disabled and his income had been significantly reduced. He testified that he received $910.00/month from his former job; $1,800.00/month from the Marine Corps; and $1,300.00/month from supplemental disability insurance, which is roughly $4,000.00/month. The pay statement for Larry was introduced to support the cost of health insurance that Larry paid per pay period. Based upon this testimony, the trial judge awarded “final child support” of $3.87 per month.

Upon review, we find that we must vacate that award because, in this record, there is no documentation to support that award. La. R.S. 9:315.2 requires, at the very least, verified income statements showing gross income and adjusted gross income, with documentation of current and past earnings for the parties, and both party’s most recent federal tax return. Further, there is no documentation to establish Larry’s disability status or reduced employability. Moreover, there is no indication that the trial judge used Worksheet B to calculate the final child support award in this case as required by La. R.S. 9:315.9(B).

In setting child support, the statutory requirements ensure that the trial judge has the appropriate information before him and eliminate guessing by an appellate court; noncompliance with them renders the figures reached almost meaningless. Oubre v. Oubre, 00-103 (La. App. 5 Cir. 05/17/00), 762 So.2d 239, 241. Based on the foregoing, we find that the trial judge erred in rendering a child support award |fiin this case, where the parties failed to introduce the statutorily required evidence. Accordingly, we vacate the child support award in the July 25, 2016 judgment and reinstate the child support award from the February 3, 2016 Order, retroactive to February 5, 2016 as previously ordered by the trial court.

Returning to Juanita’s first assignment of error, she contends that the trial court improperly issued a “considered decree” on the issue of child custody. In brief to this Court, Ms. Clarke asserts that the issue of child custody was (1) stipulated between the parties to avoid a “considered decree” and (2) was not before the court at the June 23, 2016 trial.

However, we find no merit in that specific argument as the February 3, 2016 Order clearly delineated the custody ruling as “interim shared custody” and set the matter for trial at a later date. Further, at the June 23, 2016 trial, Larry’s counsel questioned Larry concerning the parties’ custody arrangement and specifically asked whether he sought to have the interim custody order made final—Larry responded affirmatively and Juanita’s counsel did not object to that testimony. Thus, the trial court properly ruled on the custody of L.N.C. after trial.

Finally, in her third assignment of error, Juanita argues that the trial judge erred in allowing Larry to claim L.N.C. as a dependent on his income tax returns. We note that the trial judge ordered that the “parties shall alternate yearly claiming of the minor for income tax purposes” with Larry receiving the benefit for odd years. Juanita specifically argues that Larry was “obviously in arrears in child support” so the law precluded him from claiming the dependent tax credit. As noted, there was little evidence introduced at the June hearing and none to establish that Larry was in arrears on his child support.

17Further, this is a shared custody arrangement without a domiciliary parent. After a contradictory hearing, the trial court ordered that the parties were to alternate claiming the deduction. Based on the record before us, we decline to disturb that ruling.

DECREE

For the foregoing reasons, the August 1, 2016 amended judgment of the trial court is vacated; the July 25, 2016 award of child support is vacated, but that judgment is affirmed in all other respects; the February 3, 2016 Order of monthly child support of $279.34 is reinstated; and the matter is remanded for further proceedings.

AUGUST 1, 2016 JUDGMENT VACATED; JULY 25, 2016 JUDGMENT VACATED IN PART AND AFFIRMED IN PART; FEBRUARY 3, 2016 CHILD SUPPORT ORDER REINSTATED; REMANDED.

      . To protect the privacy of the minor child, we will use initials in referring to the child.

      . It is unclear whether the February 3, 2016 Order is a considered decree or a consent judgment. While the Order is signed by the trial judge and both parties and the minute entry from that date reflects that the parties "stipulated” to the matters addressed in the order, the typewritten title, "Court Form Stipulation” reflects that the term "Stipulation” is crossed out and is replaced with the term "Order.” Further, although child custody was designated as "interim shared" custody,” ho other issues, i.e. child ■ support or exclusive use of property, were designated as "interim.”

      . On August 1, 2016, the trial judge signed an “AMENDED JUDGMENT,”, noting that its original judgment contained the wrong case number and stating, "The filing of this amended judgment remedies that error.” Except for the mistaken case number and the reference to that mistake, the two judgments are identical in substance. However, the record does not reflect that the trial judge followed the statutory requirements set forth in La. C.C.P. art. 1951 before amending the judgment. La. .C.C.P. art. 1951, which was amended effective August 1, 2013, currently reads:
      On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and ■that no opposition has been received. ■
      . The record reflects neither a hearing before the amendment nor that the parties consented nor that "the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.” Because of this error, we hereby vacate the August 1, 2016 judgment. Accordingly, we will review the July 25¡ -2016 judgment, which, although it contains a typographical error in the docket number, is a valid judgment.

      . Until Jiily 31, 2016, which is the time period relevant in this appeal, La. R.S. 9:315.9(A)(1) defined "Shared custody” as "a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time,” Effective August 1, 2016, by Acts 2016, No. 432, § 1, La. R.S. 9:315.9(A)(1) was amended to define "Shared custody” as custody where "each parent has physical custody of the child for an approximately equal amount of time.”

      . La. R.S. 9:315.21(A) reads, "Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.” La. R.S. 9:315.21(E) reads, "In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.” Here, in the February 3, 2016 Order, the trial judge commenced the award on February 5, 2016, which indicates that the trial judge found that there was "good cause shown” to decline to award support retroactively. Because we do not have a transcript of the February hearing in the record, we cannot say that the trial court erred in that determination.