author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Bernard Terrell FORREST
    NO. 2016 KA 1678
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 21, 2017

      Jason Rogers Williams, New Orleans, LA, Attorney for Defendant-Appellant, Bernard Terrell Forrest,
    Warren LeDoux Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, LA, Attorneys for Appellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

|aThe defendant, Bernard Terrell Forrest, was charged by bill of information with possession with intent to distribute a Schedule I' controlled dangerous substance (marijuana and/or synthetic cannabinoids), a violation of Louisiana Revised Statutes 40:966A (count one); and possession of 400 grams or more of cocaine, a violation of Louisiana Revised Statutes 40;967F(l)(c) (count two). He pled not guilty and, following a jury trial, was found guilty as charged on both counts. The State filed a habitual offender bill of information seeking to enhance the penalty imposed on count two. After a hearing, the defendant was adjudicated a fourth-felony habitual offender. Prior to sentencing, the defendant made an oral motion for a new trial, which the district court denied. The defendant was then sentenced to ten years at hard labor on count one and to life imprisonment without the benefit of probation, parole, or suspension of sentence on count two. The defendant moved for reconsideration of sentence, but the motion was denied! The district court ordered the two sentences to run concurrently. The defendant now appeals, filing a counseled and a pro se brief challenging the sufficiency of the evidence and his sentences.

FACTS

In October 2012, Louisiana State Police Troop L Trooper John Heath Miller received information that resulted in a narcotics investigation targeting the defendant. Special Agent Scott Brownlie with the Drug Enforcement Administration (“DEA”) in New Orleans also participated in the investigation. During the course of the investigation, Trooper Miller obtained the defendant’s |3cellülar telephone number. On October 24, 2012, Trooper Miller learned additional information related to the investigation of the defendant from DEA agents based in Houston, Texas. Supplementing the information that he had already obtained with the new information from agents in Houston, Trooper Miller prepared an affidavit seeking global positioning system (“GPS”) data for the defendant’s cellular telephone and presented it to a federal magistrate judge. On October 24, 2012, the magistrate judge signed the order granting authority to obtain GPS data from the defendant’s cellular telephone provider for a period of thirty days. After obtaining the order Trooper Miller and Agent Brownlie traveled.to Houston, joined the Houston DEA agents, and located the defendant. They maintained visual surveillance of the defendant and learned that he was staying at a Quality Inn Hotel and operating a 2012 blue Chevrolet Traverse. Trooper Miller and Agent Brownlie maintained visual surveillance on the defendant from October 24, 2012, through October 26, 2012, before returning to Louisiana. During that timeframe, Trooper Miller did not recall seeing any other individuals inside of the Traverse.

On October 28, 2012, as Trooper Miller monitored GPS data from the defendant’s cellular telephone, he noticed that the defendant was travelling east along Interstate 10. He contacted Agent Brownlie, and the two decided to reestablish visual surveillance. Trooper Miller subsequently located the Traverse travelling east on Interstate 10 in East Baton Rouge Parish near the lakes at Louisiana State University. The defendant proceeded onto Interstate 12 and exited at Sherwood Forest. There, he drove through the drive-through window at a Raising, Cane’s restaurant before driving to an apartment complex nearby. The defendant exited his vehicle and entered an apartment. Trooper Miller maintained visual surveillance of the Traverse while the defendant was inside the apartment. Thereafter, the defendant reentered Interstate 12 and upon arrival in St. Tammany Parish, was stopped by ^Louisiana State Police Troop L Trooper Patrick Dunn, who was contacted for assistance by Trooper Miller.

According to Trooper Dunn, around 5:00 p.m. on October 28, 2012, Trooper Miller advised him of the location of the Traverse. Trooper Dunn was parked in his marked police unit on the shoulder of the eastbound lane of Interstate 12, when he saw a vehicle that matched the description given to him by Trooper Miller. Trooper Dunn noticed that .the Traverse crossed the fog line and followed another vehicle too closely. Trooper Dunn then activated his unit’s lights and proceeded to stop the Traverse. When Trooper Dunn activated his lights, his dashboard camera began recording. The defendant came to a stop on the shoulder of the interstate. Trooper Miller advised Trooper Dunn that contraband may be inside of the spare tire in the Traverse. The defendant consented to a search of the vehicle. Upon inspection, Trooper Dunn noticed that the spare tire was not the same size as the other tires on the vehicle and was also partially dry-rotted with a rusted rim. His partner, Trooper Timothy Mannino, approached and observed the defendant. According to Trooper Mannino, when Trooper Dunn turned his attention to the spare tire, the defendant’s breathing became labored. Trooper Dunn cut the spare tire open and found bundles of contraband inside. Specifically, Trooper Dunn located packets of synthetic marijuana, 483.88 grams of cocaine, and 222.54 grams of marijuana. The defendant also had $770 on his person.

Trooper Miller stopped at the' scene during the course of the traffic stop and learned that the Traverse was a rental vehicle, which he testified are often used by narcotics traffickers. Trooper Miller testified that he could not recall the identity of the individual'who rented the Traverse. A video of the traffic stop was recorded on Trooper Dunn’s dashboard camera and played for the jury at trial.

| ¡After he was placed under arrest and advised of his Miranda rights, the defendant was transported to Troop L where Trooper Miller read the defendant a Miranda rights form. While Trooper Miller was reviewing the rights form with the defendant, the defendant, said that “he had no one to blame but [himself].” Thereafter, the defendant’s attitude changed and said he did not want to talk;

' Some of the evidence located in the spare tire of the Traverse was analyzed and tested for the'presence of controlled dangerous substances. The results indicated that one of the Ziploc bags contained 483.88 grams of cocaine. The other Ziploc bag contained 222.54 grams of marijuana. Seven factory-sealed KUSH herbal incense packets containing “green vegetable material” were sent to the lab, and one was tested. That packet was labeled “KUSH Pineapple,” and the test results revealed that it contained (l-pentylindol-3-yl)-(2, 2, 3, 3-tetramethylcyclopropyl) methanone. The analyst who conducted the tests testified that the KUSH packet contained UR-144, which is a synthetic cannabinoid.

The evidence was also tested for latent fingerprints. The Ziploc bag' containing cocaine was wrapped in clear plastic wrap. No fingerprints were located on the clear plastic wrap, but two fingerprints were lifted from the Ziploc bag. One of the two fingerprints on the Ziploc bag, matched that of the defendant’s right middle finger, and the other matched the defendant’s left little finger.

SUFFICIENCY OF THE EVIDENCE

In his first counseled and pro se assignments of error, the defendant contends that the evidence presented by the State was insufficient. Specifically, the defendant argues that he was not aware of the hidden drugs and that the “only evidence that the State presented to show [his] knowledge of the drugs was a fingerprint that could have been placed on the [Z]iploc bag before the drugs were placed inside.” The | (¡defendant also complains that the State failed to establish the identity of the person who rented the vehicle, who had access to the vehicle during the two days prior to the arrest, and when the spare tire was changed. In his pro se brief, the defendant complains that “no one testified as to seeing [him] with any of the cjrugs; or even placing any of the drugs in the spare tire of the rental vehicle.” ■

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and 'the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and. the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.

As applicable here, it is unlawful for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance as classified in Schedule I. See La. R.S. 40:966A(1). Marijuana and synthetic cannabinoids are controlled dangerous substances classified in Schedule I. See La. R.S. 40:964, Schedule I(C)( 19) & (F). It is also unlawful for any person to knowingly or ^intentionally possess a controlled dangerous substance as classified in Schedule II. See La. R.S. 40:967C. Cocaine is a controlled dangerous substance classified in Schedule II. See La. R.S. 40:964, Schedule 11(A)(4).

The State is not required to show actual possession of drugs by a defendant in order to convict. Constructive possession is sufficient. A person is considered to be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control, .regardless: of whether or not it is in his physical possession. Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. However, the mere presence in the area where narcotics are discovered or mere association with the person who does control the drug or the area where it is located is insufficient to support a finding of constructive possession. State v. Smith, 2003-0917 (La. App. 1st Cir. 12/31/03), 868 So.2d 794, 799.

A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. Smith, 868 So.2d at 799.

After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of possession with intent to distribute a Schedule I controlled dangerous substance (marijuana and/or synthetic cannabinoids) and possession of 400 grams or more of cocaine. The evidence presented at trial contradicts the defendant’s argument that |8he was not aware that contraband was inside of the spare tire. The defendant was the only occupant of the Traverse during the period of surveillance. Although he consented to a search of the vehicle, when Trooper Dunn began to search near the spare tire, the defendant’s breathing became labored. Bundles of contraband were subsequently found inside of that spare tire, and the defendant’s fingerprints were on. one of those bundles. After being placed under arrest, the defendant stated that “he had no one to blame but [himself].”

The jury rejected the defendant’s theory that the person who rented the vehicle planted the contraband inside of the spare tire. When a-ease involves circumstantial evidence and -the jury reasonably rejects the' hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987); see also State v. Mack, 2013-1311 (La. 5/7/14), 144 So.3d 983, 989-90 (per curiam). No such hypothesis exists in the instant case.

This court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder’s determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting 'testimony about factual matters, the resolution of which depends upon a determination of the credibility 'of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. Further, we cannot say that thé jury’s determination was irrational under the facts and circumstances- presented to them. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact-finder and thereby overturning' a verdict on the basis of an exculpatory hypothesis of 19innocence presented to, and rationally rejected' by, the factfinder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Where jurors have an evidentiary basis for. rationally rejecting the hypotheses of innocence advanced by the defense, those hypotheses fail, and the pertinent question for this Court is wheth er the various alternative hypotheses advanced by the defendant do not simply offer a possible exculpatory explanation, but are so reasonable that rational jurors would necessarily have looked past any extraordinary coincidence and found a rea-: sonable doubt of the defendant’s guilt. See Mack, 144 So.3d at 990.

These assignments of error are without merit.'

EXCESSIVE SENTENCE

In his second counseled and pro se assignments of error, the defendant contends that the sentence imposed on count two is excessive. He argues that he “will die in prison for a 'non-violent - drug offense.” He notes that he presented evidence of his unique situation at his sentencing hearing and contends that the sentence imposed is nothing moré than the purposeless and needless imposition of pain and suffering. . '

Article I, Section 20 of.the Louisiana. Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain, and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in.light of the | inharm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A district court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the. district court before imposing sentence. See La. Code Crim. P. art. 894.1. The district court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990), In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the' crime-and the district court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. See State v. Harper, 2007-0299 (La. App. 1st Cir. 9/5/07), 970 So.2d 592, 602, writ denied, 2007-1921 (La. 2/15/08), 976 So.2d 173.

On count two, the defendant was. sentenced to the mandatory .term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. See La. R.S. 15:529.1A(4)(b). Even though a sentence is the mandatory minimum sentence, it may still be excessive if it makes no “measurable contribution to acceptable goals of punishment” or amounts to nothing more' than “the purposeful imposition of pain and suffering” and is “grossly out of proportion Into the severity of the crime.” State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993). In order for a defendant to rebut the presumption that a mandatory minimum sentence is constitutional, he must “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676 quoting from State v. Young, 94-1636 (La. App. 4th Cir. 10/26/96), 663 So.2d 525, 528, writ denied, 95-3010 (La. 3/22/96), 669 So.2d 1223. Departures downward from the minimum sentence should only occur in rare situations. See Johnson, 709 So.2d at 677.

Prior to the imposition of sentence, the defendant testified that he completed the eleventh grade before dropping out of high school. He testified that he lost both of his parents by age sixteen and began using drugs. The defendant stated that he did not receive the proper drug treatment while incarcerated for his prior drug-related offenses, and opined that he could recover from his addiction if he received appropriate treatment. Prior to denying the defendant’s request for a downward departure from the mandatory minimum sentence, the district court noted that the instant offense was not a “street deal,” but rather, involved a “huge amount” of contraband and' appeared to be a business. See La. Code Crim. P. art. 894.1A(15).

A presentence investigation report was admitted into evidence. According to the report, ■ the defendant has an extensive criminal history and was on parole at the time the instant offense was committed. The report also indicates that-after being incarcerated -for the instant charges, .the defendant continued to manage his drug distribution endeavors via telephone. Specifically, the .defendant. directed his girlfriend to receive payments from others who owed him-for previous drug transactions, deposit the money, and make payments to others, including his attorney. According to the report, during one of these conversations, the defendant Instated, “it could have been way more, what I got caught with was nothing.” The. report concludes that the defendant’s criminal history “indicates a propensity to engage in the criminal trafficking of controlled dangerous substances” and his supervision history “indicates an unwillingness to comply with mandated supervision conditions,”

Based on our review of the record, we find that the district court did not err or abuse its discretion in imposing the defendant’s sentence in accordance with the mandatory penalty provided for in Louisiana Revised Statutes 15:529.1A(4)(b), The testimony presented by the defendant at his sentencing hearing did not clearly and convincingly, show that he is exceptional and a victim of the -legislature’s failure to assign a sentence that was meaningfully tailored to his culpability, to the gravity of the offense, and to the circumstances of the case. Thus, the district court had no ■reason to deviate downward from the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Aceord-ingly, these assignments of error are without merit.

PATENT ERROR

In the conclusion of the defendant’s pro se brief, he requests patent error review in accordance with Louisiana Code of Criminal Procedure article 920(2). This court routinely reviews criminal appeals for patent error. The items that the defendant requests we review for patent error include items that would require review of the evidence. Under Article 920(2), we are limited in our patent error review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible patent errors.

PRO SE ARGUMENTS

Although not set out as assignments of error, in his conclusion in the pro se brief, the defendant also contends there were several issues with his habitual 11soffender adjudication. First, he contends that one of the fingerprint cards introduced at the habitual offender adjudication hearing failed to include a docket number. Contrary to the defendant’s assertion, at the habitual offender adjudication hearing, copies of the bills of information bearing docket numbers as well as the defendant’s fingerprints for each predicate offense were introduced into evidence and compared to the defendant’s fingerprints tajeen on the morning of the hearing. Therefore, based on our review of the record, this argument is without merit.

The defendant next argues that there was an issue with his first predicate offense (October 11, 2005, conviction under 22nd JDC docket number 02-CR8-84705) because on the appeal of that predicate, this court remanded “for resentencing.” He claims that he was resentpneed on that predicate offense on the same date that he entered guilty pleas in his second and third predicate offenses (June 20, 2007, convictions under 22nd JDC docket numbers 00-CR8-80733 and 04-CR8-91527). He further complains, citing State v. LeBlanc, 2014-0163 (La. 1/9/15), 156 So.3d 1168 (per curiam), that his convictions under docket numbers 00-CR8-80733 and 02-CR8-84705 were obtained on the same day. However, in the appeal of that predicate offense, this court affirmed the defendant’s conviction, amended his sentence to delete the restriction of parole eligibility, and affirmed as amended. The matter was remanded to the district court only to correct the minute entry. See State v. Forrest, 2006-1334 (La. App. 1st Cir. 3/23/07), 2007 WL 866222 (unpublished). Moreover, the convictions under docket numbers 00-CR8-80733 and 02-CR8-84705 were not entered the same day, and neither conviction was obtained prior to October 19, 2004. See La. R.S. 15:529.1B (“Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.”). Thus, the defendant’s arguments have no merit.

Finally, the defendant contends that his “rap sheet” indicates that he is actually a second-felony habitual offender. Despite defendant’s argument, the State | represented sufficient evidence to establish that he is a fourth-felony habitual offender, and the district court adjudicated him as such. Thus, his claim that he is actually a second-felony habitual offender because of an alleged statement on his “rap sheet” is without merit.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

      . The defendant's predicate offenses include: (1) an October 11, 2005, conviction for possession of cocaine under Twenty-Second Judicial District Court ("22nd JDC”), Washington Parish, docket number 02-CR8-84705; (2) a June 20, 2007, conviction for distribu- . tion of cocaine under 22nd JDC, Washington Parish, docket number 00-CR8-80733; and (3)a June 20, 2007, conviction for felony battery of a police officer with injury requiring medical attention under 22nd JDC, Washington Parish, docket number 04-CR8-91527.

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

      . The defendant does not challenge the sentence imposed on count one,

      . Count two and the predicate felony under 22nd JDC docket number 00-CR8-80733 for distribution of cocaine are violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more. See La. R.S. 40:967B(4)(b) & 40:967F(l)(c). The defendant’s predicate felony under 22nd JDC docket number 04-CR8-91527 for felony battery of a police officer requiring hospitalization is defined as a crime of violence under Louisiana Revised Statutes 14:2B(41).


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    Jeanique Vasquez LACOUR v. Jeremy LACOUR
    NO. 17-CA-118
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017
    COUNSEL FOR PLAINTIFF/APPEL-LEE, JEANIQUE VASQUEZ LACOUR, Gary S. Brown
    COUNSEL FOR DEFENDANT/APPELLANT, JEREMY LACOUR, Barbara V. Madere, Jeffrey Hufft
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   WICKER, J.

11 Father-appellant seeks review of the trial court’s denial of his rule to relocate his minor child from Louisiana to Califor-nía. Because we find that the trial judge did not abuse his discretion in. determining that it is in the minor child’s best interest to remain in Louisiana and in denying the rule to relocate, we affirm.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Jeanique Vasquez Lacour and Jeremy Lacour, both active duty members of the United States Marine Corps, married in April 2011 in San Diego, California. Prior to marriage, in March 20l0, the couple had one child, J.L. In April 2012, Jeremy received orders from the military that he would be trarisferred from California to Belle Chasse, Louisiana. Jeanique and J.L. followed and moved to Belle Chasse, Louisiana in October 2012.

The parties separated and were subsequently divorced pursuant to a Texas divorce decree on October 30, 2013. During the period of time surrounding the divorce, Jeanique Was deployed to Afghanistan and was not present in Texas for the divorce proceedings. The Texas decree granted Jeremy “the exclusive right to designate the primary residence of the child” and further ordered Jeanique. to pay Jeremy $364.00 per month in child support.

On November 9,. 2015, Jeanique filed a “Petition to Register Out-of-State Child Custody Order pursuant to La. R.S. 13:1827 et seq. to Modify Custody | aOrder, to Register Out-of-State Child Support Order Pursuant to La. Ch.C. 1306 et. seq. and to Modify Support Order” in the 24th Judicial District Court for the Parish of Jefferson. On February 24, 2016, the parties appeared before the domestic hearing officer and stipulated that (1) the Final Decree of Divorce issued in Texas would be registered and recognized as a Louisiana judgment; (2) the parties would share joint custody of J.L.; and (3) Jeremy would be designated as the domiciliary parent.

On May 16, 2016, Jeremy filed a “Rule to Relocate,” asserting that he received military transfer orders requiring him to relocate to California and that it would be in J.L.’s best interest to relocate to California. In his rule to relocate, Jeremy pointed to the Texas judgment, granting him the exclusive right to choose J.L.’s primary residence, and to the February 24, 2016 judgment registering the Texas judgment as a 'Louisiana judgment and designating him as the domiciliary parent. On June 21, 2016, the parties appeared before the hearing officer on Jeremy’s rule to relocate. On that date, the hearing officer deferred a recommendation on the rule to relocate. The parties stipulated to undergo a relocation evaluation and further that, pending the relocation evaluation, J.L. would visit with Jeremy in California from July 2, 2016, through August 16, 2016.

On August 11, 2016, Jeremy filed a “Motion for Order Granting Temporary Relocation of the Principal Residence of the Minor Child and Request for Expedited Hearing,” contending that due to circumstances beyond the parties control, the relocation evaluation had not yet occurred. Jeremy alleged in his motion that he enrolled the child into, school in California, had family support in California, and that relocation pending evaluation would be in the child’s best interest. The motion was set for a hearing before the hearing officer on August 17, 2016. On that date, Jeremy filed a motion to continue the hearing officer conference, which was denied, alleging that his military supervisors denied his | ^request for leave to attend the hearing officer conference and he was thus, unable to attend. The record reflects that Jeremy’s counsel was physically present and that Jeremy participated by telephone.

Following the August 17, 2016 hearing officer conference, the hearing officer recommended that Jeremy’s motion for temporary relocation be denied; that Jeanique have primary physical custody of J.L., who should be registered to attend school in the Greater New Orleans area; that the rule to relocate be deferred until October 3, 2016; and that Jeremy immediately return the minor child to Louisiana and incur the related travel expenses. The recommendations became the interim judgment of the court on August 18, 2016. The trial court appointed Martha Bujanda as a mental health expert pursuant to La. R.S. 9:331 to complete the relocation evaluation prior to the scheduled October 3, 2016 hearing officer conference.

On August 26, 2016,. Jeanique- filed a motion for contempt against Jeremy, alleging that he failed to return J.-L. to Louisiana as stipulated between the parties following the June 21, 2016 hearing officer conference and further as ordered in 14the August 18, 2016 interim judgment. In her motion, Jeanique further alleged that Jeremy, without her knowledge, withdrew J.L.’s registration from her Louisiana school, Belle Chasse Academy, and enrolled her into a school in California.

The parties appeared before the hearing officer on October 3, 2016. On that date, the hearing officer recommended that Jeremy be found in contempt of court for failing to return the minor child to Louisiana; withdrawing the child from her Louisiana school; enrolling the child in school in California; and for failing to reimburse Jeanique for one-half of the cost of the airline ticket she purchased to return the child to Louisiana. The hearing officer further recommended that Jeremy be ordered to return the minor child to Louisiana no later than October 14, 2016, and that, should Jeremy fail to return the child by that date, a civil warrant should issue to allow law enforcement officers to retrieve the child from California. The parties subsequently appeared before the district court judge, who found, “[b]ut for the fact that you were not given a copy of the signed interim judgment ordering you to immediately return your daughter I would put you in jail, but... I don’t think I can legally do that today.” The trial judge warned that if Jeremy failed to return the minor child to Louisiana by October 14, 2016, he would find Jeremy in contempt and place him in jail.

The record reflects that Jeremy returned J.L. to Louisiana on October 14, 2016. On November 15, 2016, the matter proceeded to trial on Jeremy’s rule to relocate.

Jeanique testified at trial that she- and J.L. live in a three bedroom home with a backyard on the military base in Belle Chasse, Louisiana, which she described as a community environment. Jeanique does not have any family in Louisiana but considers her military friends who live on base to be her family. She explained |fithat the military moms help each other in any way they can and that one of her good friends is a military wife and stay-at-home mother who helps frequently with J.L. and is listed as an emergency contact with J.L.’s school. J.L. attends elementary school on the military base at Belle Chasse Academy. Jeanique testified that J.L. has a lot of friends in Louisiana, is enrolled in soccer, and attends church regularly.

Jeanique testified that, although she does not fall within a “non-deployable” classification according to the military guidelines, her supervisor has informed her that she will not be deployed again because her current job position is not needed overseas. Jeanique further testified that she intends to leave the military in 2019, upon completion of her current term, and remain in the New Orleans area. She is registered in online courses to complete her degree in counseling by 2019. She testified that, if she remained in the military and reenlisted in 2019, she would have the option to relocate to California.

Jeanique testified that she has nine brothers and three sisters who primarily reside in New York and Florida. Jeanique was raised by her grandmother and did not have a relationship with her mother as a child, due to her mother’s substance abuse issues. She stated that she has recently started to communicate with her mother and that her goal is “to give my daughter everything I didn’t have growing up.” Jeanique testified that she has been dating someone for several months and hopes to be engaged within the year.

Jeanique ■ testified to her opinion that Jeremy attempted to make her a “weekend mom.” She explained that Jeremy consistently withheld information about J.L., including not informing her that he withdrew J.L.’s registration from Belle Chasse Academy in May 2016, where she attended Kindergarten the year | ^before. She stated she did not learn of Jeremy’s actions until mid-August 2016, when she dropped off J.L.’s school supplies and was informed by the school office that J.L. was no longer a registered student.

Jeremy testified at trial that he and Jeanique met while in the military and dated approximately three to four months before she became pregnant. For a period of time after J.L.’s birth, Jeanique worked a civilian job at Capital One and became a weekend reserve. Shortly thereafter, Jea-nique received orders that she would be deployed to Afghanistan. Jeremy testified that he took care of J.L. during Jeanique’s nearly one-year deployment.

Jeremy testified that, in his new position as a recruiter for the Coast Guard, he is classified in the military as non-deployable. Jeremy disagrees with Jeanique’s opinion that she is non-deployable, explaining that there are three classifications of Marines that are non-deployable and that Jeanique does not fit into any of those categories.

Concerning Jeremy’s decision to withdraw J.L. from her Louisiana school and enroll her into a school in California, Jeremy testified that he was advised by his previous counsel that because he had the right, under the Texas judgment, to determine J.L.’s primary residence and, further, because he was designated as domiciliary parent in the February 24, 2016 stipulations in Louisiana, the court proceedings for relocation were simply “procedural.” According to Jeremy, Inis counsel advised him to begin the process to relocate his daughter to California and to obtain “all ... documents” to support relocation, such as having suitable housing and enrolling her into an acceptable California school.

Jeremy testified that J.L. adjusted very well during her time in California. J.L. attended summer camp in California and, from mid-August to October 2016, excelled academically. Jeremy testified that he works Monday through Friday from 8:30 a.m. to 4:30 p.m. regularly and had rio childcare issues while J.L. lived 17with him in California. Additionally, he testified that his mother'visited him in California during that time to visit and help with J.L. Jeremy testified that he has cousins and three aunts who live in California, one who lives approximately twenty-five minutes from his home.

Concerning his decision not to return J.L. to Louisiana until October 14, 2016, Jeremy testified that he was unable to attend the August 17, 2016 hearing officer conference because his supervisor did not approve his leave request and he was advised by his attorney at that time that the trial court would grant a 90-day continuance of the hearing officer conference under the Service Members Civil Relief Act. Concerning, why he did not return J.L. to Louisiana when he traveled to Louisiana for the October 3, 2016 hearing officer conference, Jeremy testified that J.L. was participating in state testing and he thought it was in J.L.’s best interest to not be absent during the state-wide mandated testing. The record reflects that Jeremy did not return J.L. to Louisiana until the trial judge instructed him that he would be placed in jail if he failed to return J.L. by-October 1⅜ 2016.

At trial, Jeremy expressed concern about J.L.’s care in Louisiana. He testified that he has never met Jeanique’s boyfriend and does not have a way to contact him in case of emergency. He further expressed concern that he, being in California, doesn’t know who is watching J.L. wh.en Jeanique goes out with her boyfriend or friends. He testified. that J.L. informed him that a- man slept over at Jeanique’s house on two occasions, to which Jeanique responded that a male sergeant-friend, who has a daughter J.L.’s age, came over to let their daughters play, and decided to let the girls have a sleepover. According to Jeanique, the male friend slept on the couch.

| «The record reflects that the parties had a volatile relationship. Jeremy testified that- he and Jeanique argued constantly when they were together and Jeanique confirmed that the two had a volatile relationship and that Jeremy “brought out [the] worst” in her. Jeremy recalled one incident when he was lying on the couch holding J.L. as a baby and the two began arguing. He testified that Jeanique smacked him across the face, knocking off and breaking his glasses. He testified that J.L. was scared and began to cry. Jeanique admitted to slapping Jeremy while he was holding J.L. during an argument after she learned Jeremy had cheated on her with another woman. Jeanique denied having any anger management issues, except in her relationship with Jeremy.

Ms. Martha Bujanda, an expert in custody and relocation evaluations, testified as the court-appointed mental health expert at trial. Ms. Bujanda testified that both parents are . committed and attached to J.L. and have a major emotional bond to the child and that J.L. is also attached to both parents. Ms. Bujanda testified extensively concerning the factors set forth in La. C.C. art. 134 as well as those set forth in La. R.S. 9:355.14. Ms. Bujanda prepared a written report, Rintroduced into evidence at trial, which ultimately recommended that J.L. remain in Louisiana with Jeanique designated as the domiciliary parent.

Ms. Bujanda testified at trial that both parties are good parents who are loving and devoted to J.L. and can equally provide for her. material needs. She placed significant emphasis on the stability and continuity of the community where the child has resided for more than three years. Although she recognized that stability and continuity in a military family is different than a civilian family, she found that J.L. has resided in Louisiana since 2013 and has lived in .the same community and attended the same school since that time, Ms. Bujanda also spoke with J.L.’s first-grade teacher at Belle Chasse Academy by telephone, who advised that J.L. appears happy and well-adjusted .and is doing well, academically.

Ms. Bujanda emphasized that both Jeremy and Jeanique are capable and loving parents. She testified that, if Jeanique were the parent relocating, she would most certainly 'have recommended that J.L, remain with Jeremy in Louisiana. She did however find that there is “no substitute” for a mother-daughter bond and placed emphasis on the mother-daughter relationship. She stated that while Jeremy claims that he is supportive of J.L.’s bond with Jeanique, his actions in this regard linare “incongruent.” She reported that Jeremy has an “entitled ownership attitude” toward J.L. For example, she testified that documents from Belle Chasse Academy reflect that Jeremy withdrew J.L.’s registration from Belle Chasse Academy and enrolled J.L. into a California school prior to the court’s determination on the issue of relocation and without Jeanique’s knowledge or consent. She further discussed Jeremy’s decision to disregard the court order to return J.L. to Louisiana and testified to her opinion that Jeremy “does not view Jeanique as a viable parent figure, and if left to his own would not make the child accessible to the mother.”

Ms. Bujanda reported that J.L. stated a preference to move to- California and remain with her father. However, Ms. Bujan-da found that, at six years of age, J.L. cannot make that decision. She further explained that, during one of the visits with Jeremy and J.L., Jeremy began to cry and was visibly upset when discussing whether J.L. would relocate to California. She explained that J.L. certainly “feels the conflict of the situation.”

Ms. Bujanda acknowledged that Jea-nique has a “quick temper” and her written report recommended that Jeanique attend counseling for co-parenting without anger. Ms. Bujanda admonished Jeanique for slapping Jeremy while holding J.L., but explained that the incident occurred only once, while the parties were married, and did not occur recently. Ms. Bujanda did not contact anyone in Jeanique’s family, but did contact her military supervisor to inquire about any possible anger issues in the workplace. Jeanique’s supervisor indicated that she has been a stable Marine with no outbursts or temper issues in the workplace. Ms. Bujanda further recommended that Jeanique seek counseling for family of origin issues, so as to not repeat the cycle of substance abuse and neglect as her mother.

Although her written report does not recommend any counseling for Jeremy, Ms. Bujanda revised her report during her testimony at trial to also recommend | uthat Jeremy seek counseling for co-parenting without anger. She described Jeremy as “domineering” and testified that both parties would benefit from counseling.

Ultimately, Ms. Bujanda recommended that J.L. remain in Louisiana to preserve a sense of stability and continuity for J.L. She recommended that the parents have joint custody of J.L., with Jeanique designated as domiciliary parent. She recommended that Jeremy visit J.L. at least once a month either in Louisiana or in Dallas, Texas, where the paternal grandmother resides. Also, she recommended that the parties alternate holidays with J.L. and that J.L. spend the summer with Jeremy, returning two weeks before the school-year begins.

At the conclusion of trial, the trial judge encouraged the parties to reach a compromise concerning relocation and took the matter under advisement. On December 13, 2016, the trial judge issued a written judgment denying Jeremy’s rule to relocate and finding that relocation to California was not in J.L.’s best interest.

On appeal, Jeremy seeks review of the trial court’s denial of his rule to relocate. First, Jeremy contends that the trial court erred in failing to consider the twelve relocation factors under La. R.S. 9:355.14 and requests that this Court conduct a de novo review. Second, Jeremy contends that the trial court erred in finding that relocation to California is not in J.L.’s best interest.

DISCUSSION AND ANALYSIS

We first address Jeremy’s assignment of error relating to the applicable standard of review in this case. In brief to this Court, Jeremy contends that the trial judge'erred in failing to consider all of the relocation factors under La. R.S. 9:355.14 and in failing to expressly provide oral or written reasons for his determination that relocation is not in J.L.’s best interest.

The Louisiana Supreme Court has directly addressed this issue in Gathen v. Gathen, 10-2312 (La. 5/10/11), 66 So.3d 1. The Court in Gathen granted a writ [ 12“to determine the appropriate standard of review of a trial court’s decision in a child relocation case, where the trial court does not expressly analyze each factor under La. R.S. 9:355.12 [now La. R.S. 9:355.14] in determining whether relocation is in the best interest of the child.” Gathen, 66 So.3d at 2. Upon consideration, the Gathen Court held that while the relocation statute mandates that the trial judge consider all twelve relocation factors, a trial judge need not expressly analyze each and every factor in its oral or written reasons for judgment. Id. at 9. Rather, the Court ultimately concluded that if it can be “gleaned from the record as a whole that the trial judge followed the law in reaching his ultimate determination,” a de novo review is not proper. Id. at 13. The Court recognized that while oral or written reasons analyzing each factor certainly “makes appellate review for abuse of discretion somewhat difficult,” it is simply not required. Id. at 10. The Court reasoned that the legislature does not impose upon a trial court the requirement to provide written or oral reasons under La. R.S. 9:355.12 and that, should -the parties desire to have written and- express reasons for judgment, they have the right to request written reasons pursuant to La. C.C.P. art. 1917-, Id. at 9.

In this case, neither party filed a request for written reasons in the trial court. A thorough review of the record before us is replete with discussion and reference to each and every relocation factor provided in La. R.S. 9:355.14. Accordingly, we review the trial court’s judgment in this case under the abuse of discretion standard of review. The Louisiana Supreme Court has more recently instructed:

Ultimately, the question on appellate review is whether the trial court, having properly considered all of the factors in La. Rev. Stat. 9:355.12, abused its discretion in determining that the relocation would. not be in the child’s best interest. Curole, p. 13, 828 So.2d at 1100; see also Gathen, p. 13, 66 So.3d at 9, 2011 La. LEXIS 1121 at *26 (“the trial court’s relocation determination is entitled to great weight and will not be overturned absent a clear showing of abuse of Indiscretion”).
Gray v. Gray, 11-548 (La. 7/1/11), 65 So.3d 1247, 1255.

Therefore, absent a clear showing of an abuse of the trial court’s discretion, this Court may not reverse.

We now turn to Jeremy’s second assignment of error — that the trial court abused its discretion in denying his rule to relocate J.L.’s principal residence and in finding that relocation was .not in her best interest.

A parent seeking to relocate a child has the burden of proof to establish that (1) the -proposed relocation is made in good faith; and (2) is in the best interest of the child. See La. R.S. 9:355.10, The Louisiana Supreme Court has explained that “by placing this two-part burden on the relocating parent and placing no burden on the nonrelocating parent, the legislature chose to assign a very heavy, burden to the relocating parent to prove, that relocation is in the best interest of the child.” Gathen, 66 So.3d at 7-8, quoting Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094, 1097, In considering whether relocation is in a minor child’s best interest, La. R.S. 9:355.14 provides:

A; ' In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1) The nature, quality, extent of involvement, and duration of the relationship ■ of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development./
(3) The feasibility of preserving a good relationship between the nonrelocating person and the child through suitable physical custody or visitation arrangements, considering the logistics arid financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relo- - cation, either to promote or thwart the relationship of the child and the other party.
|u(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons of each, person for seeking or. opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial. obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations. ,
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) ' Any other factors affecting • the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied Or whether the person opposing relocation may also relocate if relocation is allowed.

Although the statute requires that the trial judge consider all twelve factors in its determination, it does not direct the court to give preferential consideration to certain factors. Curole, supra at 1097. Rather, the trial court is “free to give whatever weight it deems appropriate” to each of the listed factors. Gathen, 66 So.3d at 10. As in all child custody-disputes, the best interest of the child is paramount. Tracie F. v. Francisco D., 15-224 (La. App. 5 Cir. 9/21/15), 174 So.3d 781, 794, affirmed on other grounds, 15-1812 (La. 3/15/16), 188 So.3d 231.

Upon a thorough review of the record before us, we find that the trial judge did not abuse his discretion in denying Jeremy’s rule to relocate J.L. 'from Louisiana to California. We address below the evidence and testimony presented as to each relevant factor undeí La. R.S. 9:355.14 as well as the consideration of the best interest of the child.

RELOCATION FACTORS

U(l) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life

Ms. Bujanda’s report reflects that both parents are attached to J.L. and that J.L. has a strong bond with both parents.

Ms. Bujanda’s report referenced that Jeanique was deployed in Afghanistan for approximately one year, but that she has returned and that she and Jeremy have had equal time with the child Since Jéa-nique’s return. Ms, Bujanda’s report also referenced a brief thirty-seven day period of time during which Jeremy was absent for military training and Jeanique cared for J.L. The record further reflects that J.L. has had a consistent relationship with Jeremy’s mother, J.L.’s paternal grandmother, who resides in Texas.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development

Ms. Bujanda found that relocation to California would not offer significant changes or improvement from J.L.’s current living arrangements in Louisiana. The record reflects that J.L. has been living in Louisiana for three years, has attended school on the military base and lived in the same community during that time. Ms. Bujanda.stated that,if both parents were forced to relocate at some point in the future, J.L. would be forced to adjust and relocate. However, at this time, J.L. should be “able to benefit from a. stable, routine and continuity of care” in Louisiana.

(3) The feasibility of preserving a good relationship between the non-relocating person and the' child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties

As Ms. Bujanda testified, this factor is difficult whether relocation is granted or denied because California and Louisiana are geographically far apart. Although not a substitute for personal interaction, technology in communications does allow either parent to communicate with J.L. via Skype or FaceTime.

|w(b) The child’s views about the"proposed reldcation, taking into consideration the age and maturity of the child

Although J.L. voiced her preference to relocate to California with her father, Ms. Bujanda found that this opinion is not entitled to any weight given J.L.’s age as well as the apparent distress she feels being “tugged” by her parents.

(5) Whether there is an established patt'em of conduct 'by either the person seeking or the person opposing the relocation, either to promote. or thtvart the relationship of the child and the other party

Ms. Bujanda opined that Jeremy has established a pattern of conduct to thwart the relationship between Jeanique and J.L. Ms. Bujanda stated that she placed a very-strong emphasis on this factor, given Jeremy’s “entitled ownership attitude” over J.L. Ms. Bujanda reported that “perhaps the most concern to this evaluator is Jeremy’s disregard for Jeanique’s parental role. This will certainly influence the child’s mentality.” The record supports Ms. Bujanda’s findings that Jeremy considers himself to be J.L.’s primary parent, as evidenced by his refusal to return J.L. to Louisiana, even after ordered to do so by a Louisiana court. Contrarily, Ms. Bu-janda found that Jeanique is committed to maintain the father/daughter relationship between Jeremy and J.L.

(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit . and educational opportunity

Ms. Bujanda opined that both parents are able to provide financially for J.L.’s material needs. Ms. Bujanda found the quality of life in California and Louisiana to be “comparable.” However, J.L, is already adjusted and comfortable |17in the military base community in Belle Chasse, Louisiana, including her school and church.

(7) The reasons of each person for seeking or opposing the relocation

The record reflects that Jeremy is relocating to California as the result of an involuntary military assignment.

(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child

Jeremy and Jeanique are both active duty Marines. Ms. Bujanda found that although Jeremy earns more money than Jeanique, California has a much higher cost of living and, thus, found the parties to be comparable in their abilities to financially provide for J.L.

(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations

Ms. Bujanda testified that there are no financial obligation or support issues between the parties. Each party financially contributes to J.L.’s support.

(10) The feasibility of a relocation by the objecting person

The record reflects that Jeanique has two more years of service in the military, where she is stationed in Louisiana. Thus, at this time, she may not relocate to California.

(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation

Ms. Bujanda reported that Jeanique abused alcohol when she was younger, pri- or to J.L.’s birth, but that she only drinks alcoholic beverages “once in a blue moon” since the parties’ separation and does not become intoxicated. Jeremy also has no substance abuse issues. Although the record reflects that Jeanique admitted to hitting Jeremy on one occasion during an argument, Ms. Bujanda found that 118because the parties are separated, there is no concern for that type of event to reoccur. There are also no reports of violence by either parent toward the child.

(12) Any other factors affecting the best interest of the child

Ms. Bujanda found that no other factors exist that would affect J.L.’s best interest. At trial, Ms. Bujanda thoroughly discussed the best interest factors under La. C.C. art. 134 and ultimately concluded that both parents are loving and dedicated to J.L. and both have an essential role in J.L.’s life.

Upon a thorough review of the record before us, we find that the evidence presented at trial reflects that both parents are capable, loving parents. At this time and based upon the record before us, we find that the trial judge did not abuse his discretion in denying Jeremy’s rule to relocate and in determining that relocation from Louisiana to California is not in J.L.’s best interest. Accordingly, we affirm the December 13, 2016 trial court judgment denying Jeremy’s rule to relocate J.L.

AFFIRMED

      . Jeremy testified that he filed for divorce in Texas because Texas is his domicile pursuant to the relevant military guidelines. He testified that, to his knowledge, Jeanique’s domicile or origin state under the military guidelines is New York. The record reflects that,.for a brief period of time prior to their divorce, Jeremy and Jeanique, with J.L., lived with Jeremy’s mother in Dallas, Texas.

      . Although Jeanique signed the last page of the Texas "Final Decree of Divorce,” she claims that she was not provided the -entirety .of the divorce decree until after the divorce was final and she had arrived in Afghanistan. Jeanique testified that she was under the impression that the proposed decree simply allowed the parties to divorce and allowed Jeremy to have primary custody of J.L. while she was deployed in Afghanistan. At trial, however, Jeanique admitted that she had read the entirety of the Texas decree at the time of a February 24, 2016 hearing officer conference in Louisiana, during which she stipulated to recognizing the Texas judgment as a valid Louisiana judgment without restriction.

      . The hearing officer provided thorough written reasons for her recommendations. The hearing officer determined that the Texas court lacked subject matter jurisdiction to determine custody matters under the UCCJEA and, therefore, the February 24, 2016 Louisiana consent judgment was the initial custody determination between the parties. The hearing officer found:
      Louisiana’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is found at La. R.S. 13:1801, et seq. "Home state” is defined by La. R.S. 13:1802(7)(a) as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody [] proceeding ...." La. R.S. 13:1806 provides that a child custody determination made by a court of this state that had jurisdiction under this Act binds all persons who have been served in accordance with the laws of this state ... and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.” [emphasis added].
      La. R.S, 13:1813(A)(Z) states, "Except as otherwise provided in .R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if (1) This state is the home state of the child on the date of the commencement of the proceeding .... "[emphasis added] Texas’ UCCJEA is believed to be essentially the same as Louisiana’s UCCJEA. Louisiana was clearly [J.L.'s] home state at the time the Final Decree - of Divorce was rendered in Texas. The hearing Officer finds that while the State of Texas had jurisdiction to render a Judgment of Divorce between the parties, it lacked subject matter jurisdiction to render a custody decree, Subject matter jurisdiction cannot be conferred by consent of the parties, For that reason, the Hearing Officer finds' that the stipulation on legal custody and the temporary stipulation on physical custody which the parties entered into on February 24, 2016 is the only valid initial determination of custody.
      The trial judge drafted a separate judgment reflecting the hearing officer’s recommendations, which was signed on September 7, 2016, Neither party seeks review of this ruling on appeal.

      . The trial court issued a judgment on November 9, 2016, setting forth the hearing officer’s recommendations and finding Jeremy in contempt. Jeremy does not seek review of this judgment on appeal.

      . She did not inform the court-appointed evaluator, Ms. Bujanda, that she hopes to be engaged within the year and Ms. Bujanda did not meet or interview him.

      . Jeremy further testified and expressed concern that he- is not on the list of persons authorized to ■ pick J.L. up from school at Belle Chasse Academy.

      . Jéremy further claimed that Jeanique has threatened to commit suicide. He recalled an incident during which he contacted the police after Jeanique locked herself in the apartment bathroom and texted him a picture of a bottle of mediciné threatening to take the whole bottle and lull herself. At trial, Jeanique denied that she ever intended to kill herself and that she simply had a migraine and flushed , the entire, contents of an Excedrln bottle ■ down the toilet because the medicine was expired, Ms, Bujanda opined that the arriving officers assessed Jeanique’s mental state upon 'arrival and did not feel that, she was a threat to herself or others.

      . Ms. Bujanda interviewed each parent for approximately- 4.5 hours. She then interviewed J.L. with Jeremy for approximately fifteen minutes and J.L. with Jeanique for approximately twenty minutes.

      .La. C.C, art. 134 provides:
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child,
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care; and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes. ,
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child. ■.

        (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference,
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties,
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . La, R.S. 9:355,14 provides:
      In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
      (1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, ’and other significant persons in the child’s life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
      (3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
      (4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
      (5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party,
      (6) How the relocation of the child will.affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
      (7) .The reasons of each person for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each person and how the proposed relocation may affect' the circumstances of the child.
      (9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community ■property, and alimentary obligations.
      (10) The feasibility of a relocation by the objecting person.
      (11) Any history of substance 'abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.
      B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

      . In fact, although the mental health expert’s ■report only discussed 8 of the 12 factors under La. R.S. 9:355.14, the parties stipulated at trial that "there are actually 12 factors that should be considered in La. R.S. 9:355.14” and the remaining factors were discussed at trial.

      . Effective August 1, 2012, Acts "2012, No. ■ 267, § 1 redesignated the factors provided in La. R.S. 9:355.12 to La. R.S. 9:355.14.

      . She also viewed text messages from the parties, reflecting that Jeremy did not allow J.L. to visit with Jeanique on Mother’s Day. While Jeanique was hesitant on Father’s Day, she ultimately allowed Jeremy to visit with J.L. on that day.


text:
    STATE of Louisiana v. Kevin MUTH
    NO. 17-KA-135
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      Paul D. Connick, Jr., Metairie,' Terry M. Boudreaux, Gretna, Andrea F. Long, Lynn Schiffman, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA.
    Gwendolyn K. Brown; Baton Rouge, COUNSEL FOR DEFENDANT/APPELLANT, KEVIN MUTH.
    DEFENDANT/APPELLANT, KEVIN MUTH, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   WICKER, J.

|, Defendant, Kevin Muth, appeals his convictions and sentences for four counts of sexual, battery of a known juvenile under the age of thirteen years in violation of La. R.S. 14:43.1, two counts of indecent behavior with a juvenile under thirteen years in violation of La. R.S. 14:81, and possession of pornography involving juveniles under the age of thirteen in violation of La. R.S. 14:81.1. Defendant’s appointed appellate counsel has filed an appellate brief pursuant to Anders v. California and has further filed a motion to withdraw as counsel of record. Defendant has additionally filed a pro se brief, asserting an ineffective assistance of counsel claim. For the following reasons, we affirm defendant’s convictions and sentences and grant counsel’s motion to withdraw.

STATEMENT OF THE CASE

On August 1, 2013, a Jefferson Parish Grand Jury returned a true bill of indictment charging defendant with one count of aggravated rape of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:42 (count one); one count of sexual battery upon a known juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1 (count two); and one count of possession of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1 (count three). Defendant pled not guilty at his arraignment. On September 26, 2013, a superseding indictment charged defendant with four additional counts: an additional count of aggravated rape of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:42 (count four); an additional count of sexual battery of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1 (count five); and two counts of indecent behavior with a juvenile under the age of thirteen years, violations of La. R.S. 14:81 (counts six and seven). Defendant was re-arraigned on October 1, 2013, and pled not guilty to the charges.

[2On January 6, 2015, pursuant to a plea agreement, the State amended the two counts of aggravated rape (counts one and four) to two counts of sexual battery of a juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1. Immediately following the amendment, defendant withdrew his pleas of not guilty and, after being advised of his Boykin rights, pled guilty as charged in the amended superseding indictment. In accordance with the plea agreement, the trial court sentenced defendant to forty years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on counts one, two, three, four, and five. As to counts six and seven, the trial court sentenced defendant to twenty-five years imprisonment at hard labor on each count, with the first two years to be served without benefit of probation, parole, or suspension of sentence. The trial court ordered that defendant’s sentences be served concurrently, and further advised defendant of the sex offender notification and registration requirements. This appeal follows.

FACTUAL BACKGROUND

Defendant pled guilty without proceeding to trial. The factual basis set forth in the amended superseding indictment alleges that defendant, on or between March 1, 2013, and April 7, 2013, “violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known male juvenile (DOB 12/20/2006) Iswherein the child was under the age of thirteen;” further, as to count two, that defendant, on or between March 1, 2013, and April 7, 2013, “violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known male juvenile (DOB 12/20/2006) wherein the child was under the age of thirteen by to wit: fondling the victim’s genitals;” as to count three, that defendant “violated La. R.S. 14:81.1 in that he did commit pornography involving juveniles by intentional possession, of any photographs, films, video tapes, or other visual reproductions of any sexual performance involving a child under the age of 13;” as to count four, that defendant, on or between August 1, 2011, and January 31, 2013, “violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known juvenile (DOB 08/09/02) wherein the child was under the. age of thirteen;” as to count five, that defendant, on or between August 1, 2011, and January 31, 2013, “violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known juvenile (DOB 08/09/02) wherein the child was-under the age of thirteen by to wit: and/or touching the victim’s anus;” as to count six, that defendant, on or between August 1, 2011, and January 31, 2013, “violated La. R.S. 14:81 in that he, being over the age of 17, and there being an age difference of greater than two years between the two persons,-did commit a lewd and lascivious-act upon, or in the presence- of, a known juvenile (DOB 08/09/02) wherein the victim is under the age of thirteen by, displaying pornography involving juveniles, with the intention of arousing or gratifying the sexual desires of either person;” and as to count seven,- that defendant, on or between March 1, 2013, and April 7, 2013, “violated La. R.S. 14:81 in that he, being over the age of 17, and there being an age difference of greater than two years- between the two persons, did commit a lewd and lascivious act upon, or in the presence of, a known juvenile (DOB 12/20/06) wherein the victim is under the qge of thirteen by displaying pornography involving juvenile[s] with the intention of arousing or gratifying the sexual desire of either person.”

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir.1990), defendant’s appointed appellate counsel has filed an Anders Ubrief pursuant to Anders v. California, supra, and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no nbn-frivo-lous issues to raise on appeal. Accordingly, appointed counsel requests to-withdraw as counsel of record.

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

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly • frivolous. “When counsel files an Anders brief; an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution; c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Dufrene, 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an. independent review, the reviewing court determines there are no nonrfrivolous 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 appellate counsel. Id.

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

First, the amended superseding true bill of indictment properly charged defendant with four counts of sexual battery of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1 (counts one, two, four, and five); one count of possession of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1 (count three); and two counts of indecent behavior with a juvenile under the age of thirteen years, in violation of La.’R.S. 14:81 (counts six and seven). As required, the superseding bill of indictment sufficiently identified defendant and the crimes charged and clearly, concisely, and definitely stated the essential facts constituting the crimes charged. See La. C.Cr.P. arts. 464-466. Second, the minute entries in the record reflect that defendant appeared at each stage of the proceedings against him. Defendant physically made an appearance in open court for his arraignments, his guilty plea proceeding, and his sentencing.

Third, defendant pled guilty to the charges against him. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin 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. Id. 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). As discussed below, we find defendant’s pleas were entered into freely and knowingly and, thus, present no issues for appeal.

IfiThe record reflects that defendant was aware he was pleading guilty to four counts of sexual battery of a juvenile under the age of thirteen in violation of La. R.S. 14:43.1, one count of possession of pornography involving a juvenile under the age of thirteen in violation of La. R.S. 14:81.1, and two counts of indecent behavior with a juvenile in violation of La. R.S. 14:81, He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, supra. Defendant was advised of these rights by means of the waiver of rights form, which he. signed, and during the colloquy with the trial judge.

During the colloquy and through the waiver of rights form, the ¿rial court informed defendant of the sentencing ranges for the' crimes charged as well as the actual sentences that would be imposed upon acceptance of his guilty pleas. The record reflects that, as to defendant’s four counts of sexual battery of a known juvenile under the age of thirteen, the trial judge instructed defendant that he would receive a sentence of forty years on each count with, “at least twenty-five years of that sentence shall be imposed without benefit of probation, parole, or suspension of sentence.” Therefore, as to the sexual battery of a known juvenile charges, the trial judge correctly advised defendant of the sentencing range but neglected to inform him that the. he would restrict benefits for the entirety of defendant’s forty-year sentences on those four counts. However, for the following reasons, such error is harmless and does not invalidate defendant’s pleas.

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the.nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165. Further, La. C.Cr.P. art. 656.1(E) 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.” Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to a harmless error analysis. Kent, supra (citing State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64).

At the commencement of the Boykin colloquy, the State informed the court that it had reached a plea agreement with defendant, which included the reduction of two counts of aggravated rape (counts one and four) to two ‘counts of sexual battery of a juvenile under the age of thirteen years. The State further stated on the record that defendant agreed to a forty-year sentence on “all counts, except counts six and seven,” and that all sentences would be served concurrently and without the benefit of probation,' parole, or suspension of sentence. Additionally, the trial court advised defendant that he would receive a forty-year sentence on count' three- (pornography involving juveniles), to be served without benefit of probation, parole, or suspension of sentence. Thus,- defendant was aware that his forty-year sentences would all be served concurrently and without benefits. Moreover, there is no indication in the record that that there was any inducement regarding the number of years the benefits would be restricted for in this case or that defendant would have changed his pleas based on the advisal that his forty-year sentences on his sexual battery of a known juvenile under the age of thirteen charges would be imposed without benefit of probation, parole, or suspension of sentence. See State v. Landfair, 07-751 (La. App. 5 Cir. 3/11/08), 979 So.2d 619, writ denied, 008-1143 (La. 1/9/09), 998 So.2d 713. Accordingly, this error is harmless and does not invalidate defendant’s pleas.

The record further reflects that defendant was aware of the lifetime sex offender registration requirements, although it is unclear whether defendant was informed of the requirements prior to the acceptance of his guilty pleas. La. R.S. 15:543(A) requires the trial court to “provide written notification to any person Isconvicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter.” Notification must be given on the statutorily required form and “shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and an entry shall be made in the court minutes stating that the written notification was provided to such offenders.” Id. The Louisiana Supreme Court has stated that failure to advise a defendant of the requirements of registration and notification is one factor that may undercut the voluntary nature of a guilty plea. State v. Calhoun, 96-786 (La. 5/20/97), 694 So.2d 909. Upon review, this Court is required to consider the “totality of the circumstances” surrounding the plea to determine whether the guilty plea was freely, voluntarily, and knowingly made. State v. Blanchard, 00-1147 (La. 4/20/01), 786 So.2d 701, 704; State v. R.A.L., 10-1475 (La. App. 3 Cir. 6/29/11), 69 So.3d 704, 708.

The record in this case reflects that at the commencement of the Boykin colloquy, •defendant’s counsel stated on- the record that he was in possession of- the “sexual registration packet,” and “the lifetime registration packet.” Defendant signed the “Notification to Sex Offender” and “Notification of Requirements of Supervised Release of Sex Offenders” forms, which set forth the registration and notification requirements and further indicate that defendant’s counsel reviewed same with him, on January 6, 2014, the day he entered-his guilty pleas. The record however does not indicate whether defendant signed the notification forms prior to the entry of his guilty pleas.

Following the Boykin colloquy, the trial court accepted defendant’s guilty pleas as knowingly, intelligently, freely, and voluntarily made. Immediately thereafter, the trial court stated “I believe you have a copy of the Notification of Requirements ■of Supervised Release of Sex Offenders, Notification to Sex Offenders, and the Sex Offender Notification Statutes. Is that correct, sir?” ^Defendant acknowledged that he had the forms in his possession, after which the trial court engaged in a thorough review with defendant of his sex offender registration requirements. Defendant was also provided with printed copies of the relevant statutory law setting forth the sex offender registration requirements.

The record as a whole indicates that defendant was made aware of the sex offender registration requirements before his guilty plea. Further, defendant does not complain on appeal that he was unaware of the requirements or that the untimely advisal would have affected his decision to plead guilty. Under the facts of this case and based upon the record before us, we find that any issue related to the advisal of the registration requirements does not -undercut the voluntary nature of defendant’s guilty pleas and, thus, does not present an issue for appeal.

Lastly, defendant’s sentences do not present any issues for appeal. The record reflects that defendant was sentenced in conformity with the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Augustine, 14-747 (La. App. 5 Cir. 5/14/15), 170 So.3d 1123, 1128. Moreover, the record reflects that defendant’s sentences fall within the prescribed statutory sentencing ranges and do not present any non-frivolous issue for appeal. See La. R.S. 14:43.1(C)(2); La. R.S. 14:81(H)(2); La. R.S. 14:81.1 (E)(5)(a).

Upon an independent review of the record, we find no non-frivolous issues for appeal. We further find that appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. Accordingly, we' hereby grant counsel’s motion to withdraw as counsel of record. See State v. Crawford, 14-364 (La. App. 5 Cir. 12/23/14), 166 So.3d 1009, 1019.

yPBO SE ASSIGNMENT OF ERROR

In his pro se appellate brief, defendant asserts an ineffective assistance of trial counsel claim. Defendant contends oxi appeal that his trial counsel, failed to provide him with “much information” surrounding his plea agreement. The crux of defendant’s argument on appeal is that he was unaware of “additional” sexual battery charges that he claims were added without his knowledge and, further, that he was unaware he would be classified as a sexual violent predator. Defendant further claims that he was under “extreme emotional distress” at the time of his pleas.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana, Constitution. State v. Dadney, 14-511 (La. App. 5 Cir. 12/16/14), 167 So.3d 55, 61; State v. Johnson, 08-1156 (La. App. 5 Cir. 4/28/09), 9 So.3d 1084, 1092, writ denied, 09-1394 (La. 2/26/10), 28 So.3d 268. To prove ineffective assistance of counsel, a defendant must prove both that his attorney’s performance was deficient and that he was prejudiced by the deficiency. Johnson, supra (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). In order to show prejudice, a defendant must demonstrate that but for counsel’s deficient performance, the outcome of the proceedings would have been different. Id.

The Sixth Amendment does not guarantee a defendant errorless counsel and there is a strong presumption that counsel’s conduct will fall within the wide range of reasonable professional assistance. State v. Cambre, 05-888 (La. App. 5 Cir. 7/25/06), 939 So.2d 446, 460, writ denied, 06-2121 (La. 4/20/07), 954 So.2d 158, (citing State v. LaCaze, 99-584 (La. 1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002)); see also State v. Gorman, 11-491 (La. App. 5 Cir. 2/14/12), 88 So.3d 590, 600.

In 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. However, 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. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

In this case, the record is sufficient to address defendant’s pro se ineffective assistance of counsel claim. As discussed above, the record reflects that defendant’s guilty pleas were knowing and voluntary. Contrary to defendant’s assertions that he was unaware of the “additional” sexual battery charges, the record reflects that he was advised that his two aggravated rape charges would be amended to two charges of sexual battery of a juvenile under the age of thirteen years — an amendment beneficial to defendant. The record further reflects, as discussed supra, that defendant was aware that' he was pleading guilty to four, counts of sexual battery of a juvenile under the age of thirteen, one count of possession of pornography involving juveniles, and two counts of indecent behavior with a juvenile under the age of thirteen. Defendant was advised of the charges to which he pled guilty during the colloquy with the trial judge as well as through his waiver of rights form, which he signed on the date of his pleas. The record further reflects that defendant was advised of the actual sentences imposed; as set forth in the plea agreement'. The trial court thoroughly explained the lifetime sex offender registration requirements to defendant and afforded him the opportunity to ask any questions concerning the requirements, which he declined.

| Accordingly, we find the record -reflects that defendant’s pleas were knowingly and freely made and were an advantageous consequence of the plea-bargaining process. Defendant has failed to prove .that but for counsel’s alleged errors, the outcome of the proceedings, would have been any different. Therefore, defendant’s ineffective assistance of counsel claim lacks merit.

ERRORS PATENT

Defense counsel’s appellate brief requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Welland, 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether defendant makes such a request.

The record contains one error patent requiring corrective action. The Uniform Commitment Order unclearly reflects the dates .of,, defendant’s offenses as “08/01/2011 1/31/2013 3/01/2013 04/07/2013.” This Court has routinely remanded matters for correction of the commitment when.it is unclear or inconsistent with the record and transcript. State v. Reed, 14-702 (La. App. 5 Cir. 1/14/15), 167 So.3d 857, 861; State v. Chandler, 14-574 (La. App. 5 Cir. 12/16/14), 167 So.3d 76, 78.

Accordingly, we remand this case to the 24th Judicial District Court and order that the, Uniform Commitment Order be corrected to accurately reflect the correct dates for each offense. We further direct the Clerk of Court for the 24th Judicial District Court to transmit the originals of the corrected. Uniform Commitment Orders to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department. See Instate v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142, (citing La. C.Cr.P. art. 892(B)(2)).

CONCLUSION

Accordingly, for the reasons provided herein, defendant’s convictions and sentences are affirmed and appellate counsel’s motion to withdraw as attorney of record is hereby granted. We remand this matter to the trial court for correction of an error patent in accordance with this opinion.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED FOR CORRECTION OF THE COMMITMENT

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

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

      . The transcript indicates that, as to count three, the trial court did not order that defendant’s sentence be served at hard labor. The commitment, however, reflects that the trial court ordered defendant’s sentence on count three to be served at hard labor. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). La. C.Cr.P. art. 879 requires a court to impose a determinate sentence. State v. Horton, 09-250 ((La. App. 5 Cir. 10/27/09), 28 So.3d 370, 376. If the applicable sentencing statute allows discretion, the failure to indicate whether the sentence is to be served at “hard labor” is an impermissible, indeterminate sentence. State v. Adams, 11-1052 (La. App. 5 Cir. 5/16/13), 119 So.3d 46, 58. In this case, the trial court imposed defendant’s sentence pursuant to La. R.S. 14:81.1, which mandates the sentence to be at hard labor. Because the underlying statute, La. R.S. 14:81.1, requires the sentence be served at hard labor, allowing no discretion to the trial judge, the error was harmless and requires no corrective action. State v. Stewart, 10-389 (La. App. 5 Cir. 5/10/11), 65 So.3d 771, 783-84,
        writ denied, 11-1245 (La. 1/20/12), 78 So.3d 140.

      . Although defendant in his pro se assignment of error claims that he is not a violent person and asserts that he is now classified as a "violent offender,” it appears his argument is misplaced. While the crime of sexual battery is defined as a crime of violence pursuant to La. R.S; 14:2(12), at this time, the record does not indicate that defendant has been classified as a “sexually violent predator” under the sex offender notification statutes. See La. R.S. . 1⅜:541(21).

      . The record reflects that counts one, two, and seven were committed on or between March 1, 2013, and April 7, 2013; count three was committed on April 7, 2013; and counts four, five, and six were committed on or before August 1, 2011.