author: CHAISSON, J.

text:
    STATE of Louisiana v. Zachary HARDOUIN
    NO. 17-KA-452
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, ZACHARY HARDOUIN, Mary Constance Hanes
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

Defendant, Zachary Hardouin, appeals his convictions and sentences for two counts of pornography involving juveniles under the age of thirteen. For the reasons that follow, we affirm defendant's convictions and sentences, and we further grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On April 2, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1(E)(5)(a). Defendant pled not guilty at his arraignment.

On May 28, 2015, defendant withdrew his pleas of not guilty and, after being advised of his rights, pled guilty to both counts. In accordance with the plea agreement, the trial court thereafter sentenced defendant to ten years in the Department of Corrections on each count. The sentences were ordered to be served without benefit of probation, parole, or suspension of sentence and to run concurrently with each other.

Subsequently, on June 14, 2017, in response to an application for post-conviction relief filed by defendant, the trial court granted him an out-of-time appeal.

ANDERS BRIEF

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

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. She sets forth the procedural history, the limited facts, and the circumstances surrounding defendant's guilty pleas and sentencing. Defense counsel notes that defendant was thoroughly advised of his rights and the consequences of his guilty pleas during the guilty plea hearing and in the waiver of rights form, and that the record supports the trial court's conclusion that defendant's guilty pleas were knowingly, intelligently, and voluntarily made.

Further, defense counsel thoroughly addresses any potential issues raised by defendant in the pro se post-conviction pleadings he filed in the district court. In particular, defense counsel notes that defendant complained he was not advised of the minimum sentence of ten years he could receive, but concluded his complaint was of no consequence to the validity of his guilty pleas because defendant was advised of the sentences he would receive and was sentenced in accordance with the plea agreement to the minimum sentence of ten years. As to defendant's pro se contention that he was mentally ill at the time of the commission of the offenses, defense counsel suggests that any issue of mental illness was not brought before the trial judge. She also argues that defendant's allegation that he received ineffective assistance of counsel cannot be decided on the current record, but rather is more appropriately addressed through an application for post-conviction relief filed in the district court where a full evidentiary hearing can be conducted, if necessary. Lastly, appellate counsel asserts that defendant cannot argue his sentences are excessive as he pled guilty pursuant to a plea agreement. Defendant's appellate counsel concludes that after a conscientious and thorough review of the record, she can find no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports an appeal. Therefore, she requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmities or irregularities in defendant's guilty pleas that would render them invalid. The transcript of the guilty plea proceedings and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Further, defendant denied being forced, threatened, or coerced into entering his pleas.

With regard to his sentencing exposure, defendant was informed during the colloquy and in the waiver of rights form that he faced a maximum sentence of forty years, and that upon acceptance of his guilty pleas, he would be sentenced to ten years in the Department of Corrections without benefit of parole, probation, or suspension of sentence. We acknowledge, as did appellate counsel, that defendant was not advised of the mandatory minimum penalty set forth in La. R.S. 14:81.1(E)(5)(a). However, the trial court's failure to advise defendant of the mandatory minimum sentence does not affect the validity of defendant's guilty pleas since defendant was in fact advised of the actual sentences he would receive pursuant to the plea agreement. This Court has held that an advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64 ; State v. Faggard , 15-585 (La. App. 5 Cir. 1/13/16), 184 So.3d 837, 847, writ denied , 16-338 (La. 2/10/17), 215 So.3d 701.

With regard to defendant's sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a 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. In this case, the trial court sentenced defendant, in conformity with the plea agreement that was set forth in the record, to ten years in the Department of Corrections on each count to be served concurrently and without benefit of probation, parole, or suspension of sentence. Further, the plea agreement was beneficial to defendant in that he received a ten-year term of imprisonment when he could have received a forty-year term of imprisonment on each count. Finally, defendant's sentences fall within the prescribed statutory sentencing range and do not present any non-frivolous issues for appeal. See La. R.S. 14:81.1(E)(5)(a) ; La. R.S. 14:81(E)(1)(a).

We have also reviewed the record for errors patent and have found none that require corrective action. La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

DECREE

Because 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, we affirm defendant's convictions and sentences, and we grant appellate counsel's motion to withdraw as attorney of record for defendant.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      This Court has held that when the trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. State v. Jamison , 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      Defendant filed an application for post-conviction relief in the district court seeking to withdraw his guilty pleas and enter a plea of not guilty by reason of insanity. In his application, defendant asserted that at the time he committed the offenses, he suffered from "an episodic, undefined mental illness or disease" and "did not understand the gravamen of my plea arrangement and as such, was unable to give a knowing and intelligent waiver of my rights." Defendant also complained that his attorney refused to consider his claim that he suffered from mental illness at the time of the offenses. The district court dismissed relator's application for post-conviction relief as premature since defendant had not yet exhausted his appellate rights. Therefore, there is no ruling on these claims, and defendant has not filed a pro se brief challenging the validity of his guilty pleas based on his alleged mental illness. We note, however, that we agree with appellate counsel's assessment of these claims.

      In addition, defendant was notified of his right to file a pro se supplemental brief in this appeal. As of this date, defendant has not filed a pro se brief.

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

      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. Further, La. C.Cr.P. art. 556.1(E) provides, "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea."


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Willie THORNTON
    NO. 17-KA-470
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler
    COUNSEL FOR DEFENDANT/APPELLANT, WILLIE THORNTON, Christopher A. Aberle
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, ATTORNEY GENERAL'S OFFICE, Jeffrey M. Landry, Brooke A. Harris, Colin Clark
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   CHEHARDY, C.J.

On appeal, Willie Thornton, defendant herein, challenges his parole ineligibility under La. R.S. 40:969. For the following reasons, we affirm defendant's underlying convictions and sentences, as well as defendant's multiple offender adjudication and enhanced sentence, and remand for correction of the commitments.

Facts and Procedural History

Because defendant pled guilty, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

Willie Thornton engaged in conduct to further the aims of an Enterprise by engaging in a pattern of racketeering activity and conspiring with members of the Enterprise to distribute controlled dangerous substances, including cocaine, heroin, and marijuana. This conduct, which occurred between 2006 and 2015, included participating in the operation of a narcotics distribution network on the Westbank of Jefferson Parish wherein a violent street gang, named by its members the "Harvey Hustlers," obtained controlled dangerous substances from associates and Enterprise members who transported the drugs into the metropolitan New Orleans area.
The ranking members of the Harvey Hustlers then directed the conversion of these drugs into a saleable form, such as converting powder cocaine to crack cocaine, and provided the drugs to rank and file Harvey Hustlers who sold the drug product on the street for the profit of Enterprise members.
Members of the Enterprise who engaged in this activity on a daily basis included all of those folks-all those individuals who are named in the Bill of Indictment.
Members of the Harvey Hustlers frequently identified themselves openly through items of jewelry and clothing containing a[n] "HH" logo, tattoos containing phrases identified with the gang, social media posts, and YouTube videos.
The Enterprise members and their associates engaged in acts of violence to protect the perceived interests of the Enterprise's members, exact revenge upon enemies of Enterprise members, punish Enterprise members whose conduct displeased Enterprise leaders and to develop a reputation of the Harvey Hustlers as a group to be feared by members of the community.
Mr. Thornton, among other acts, on December 12th, 2011, distributed cocaine to a confidential informant working with the FBI. Mr. Thornton also on November 18th, 2013, along with Robert Williams, Alcus Smith, and Brandon Motton possessed cocaine having intent to distribute that cocaine.

On February 26, 2015, the Jefferson Parish grand jury indicted defendant and twenty other co-defendants on thirty criminal counts for various acts of racketeering committed in furtherance of a narcotics distribution network in Jefferson Parish operated by a street gang known as the "Harvey Hustlers." Specifically, defendant was charged with five counts: racketeering, in violation of La. R.S. 15:1352 ; conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A) ; conspiracy to distribute heroin and marijuana, in violation of La. R.S. 40:979 and La. R.S. 40:966(A) ; distribution of cocaine, in violation of La. R.S. 40:967(A) ; and possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A). At his arraignment on March 9, 2015, defendant pled not guilty to the charged offenses.

On January 13, 2016, defendant withdrew his prior pleas of not guilty and pled guilty as charged. In accordance with the plea agreement, the court sentenced defendant as follows: for racketeering, twenty years imprisonment at hard labor; for conspiracy to distribute cocaine, fifteen years imprisonment at hard labor; for conspiracy to distribute heroin, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence; for distribution of cocaine, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for the first two years; and for possession with intent to distribute cocaine, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for the first two years. The court further ordered that all of defendant's sentences be served concurrently.

Also, on January 13, 2016, the State filed a multiple offender bill of information on the conspiracy to distribute cocaine count alleging defendant to be a second felony offender, to which defendant stipulated. The trial court vacated defendant's sentence for conspiracy to distribute cocaine, and resentenced defendant as a second felony offender under La. R.S. 15:529.1, to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence to run concurrently with his other sentences.

On April 5, 2017, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which was granted by the trial court on June 12, 2017. This appeal follows.

Discussion

On appeal, defendant raises two assignments of error: first, defendant argues that the statutory prohibition on parole eligibility for conspiracy to distribute heroin is erroneous and violates the federal and state constitutional guarantees against cruel and unusual punishment, and, second, defendant argues that this Court should remand this matter for a hearing on his ineffective assistance of counsel claim presented in his application for post-conviction relief.

In his first assignment of error, defendant alleges that his guilty plea to conspiracy to distribute heroin was unconstitutional. Specifically, defendant contends that, due to an error by the Louisiana Legislature, the penalty for conspiracy to distribute heroin found in La. R.S. 40:979 is "substantially more severe" than the penalty for heroin distribution in La. R.S. 40:966 because parole eligibility is prohibited by the conspiracy statute. Consequently, defendant, relying on State v. Allen , 03-192 (La. App. 4 Cir. 5/28/03), 849 So.2d 82, 85-87, argues that the penalty for those who conspire to distribute heroin is cruel and unusual because they are not eligible for parole, while those offenders that actually distribute heroin are eligible for parole.

In its brief, the State responds that defendant, who failed to raise this issue in the lower court, is precluded from raising the constitutionality of a statute for the first time on appeal. The State further submits that, to the extent defendant may be challenging his sentence as being constitutionally excessive, he is precluded from raising this issue on appeal as his sentence was imposed in conformity with his plea agreement.

Further, when the Louisiana Attorney General's Office was notified pursuant to La. R.S. 13:4448 that defendant challenged the constitutionality of a statute on appeal, the Attorney General filed its brief, arguing that defendant is procedurally barred from raising this error on appeal as he failed to raise the issue at the trial court and serve the Louisiana Attorney General's Office, as required by La. C.C.P. art. 1880. Moreover, the Attorney General contends that by entering into a plea agreement, defendant is prohibited from seeking review of his sentence on appeal, except for excessiveness, which he has not established.

The record in this matter reflects that defendant pled guilty to various crimes, including conspiracy to distribute heroin, after being properly advised of his Boykin rights. The trial judge advised defendant of the nature of the charges against him; the sentencing ranges for the offenses, including the restriction of parole for conspiracy to distribute heroin under La. R.S. 40:979(B) ; and the sentences that would be imposed upon acceptance of his guilty pleas. Defendant indicated that he understood the nature of the charges against him and the possible penalties that could be imposed, including the denial of parole eligibility.

Pursuant to the plea agreement set forth in the record, the trial judge sentenced defendant to twenty years at hard labor, without the benefit of parole, probation, or suspension of sentence for conspiracy to distribute heroin. Most importantly, defendant, at no point, objected to the sentence or raised the constitutionality of the penalty portion of La. R.S. 40:979(B).

A statute is presumed constitutional and the burden of proving a claim of unconstitutionality rests upon the party attacking the statute. State v. Interiano , 03-1760 (La. 2/13/04), 868 So.2d 9, 13. The constitutionality of a statute must first be presented in the trial court. State v. Mickel , 07-47 (La. App. 5 Cir. 5/29/07), 961 So.2d 516, 526, writ denied , 07-1422 (La. 1/7/08), 973 So.2d 732. A party contesting the constitutionality of a statute has a three-tiered burden: 1) the presentation must be made in the trial court; 2) the claim of unconstitutionality must be specially pled; and 3) the grounds for the claim must be particularized. Mickel , supra .

In this case, defendant did not raise the constitutionality of the restriction on parole set forth under La. R.S. 40:979 in the trial court. Accordingly, to the extent that defendant challenges the constitutionality of La. R.S. 40:979, that argument is procedurally barred as it cannot be raised for the first time on appeal. See State v. Wise , 14-378 (La. App. 5 Cir. 10/15/14), 182 So.3d 63, 78 ; State v. Oliver , 03-416 (La. App. 5 Cir. 12/29/09), 30 So.3d 946, 951, writ denied , 10-0271 (La. 9/17/10), 45 So.3d 1041 ; State v. Mickel , 961 So.2d at 526-27.

We turn next to defendant's claim that he is not challenging the constitutionality of the statute but the fact that his parole ineligibility results in a sentence that is constitutionally excessiveness, i.e., a violation of the Eighth Amendment's prohibition on cruel and unusual punishment.

As noted above, defendant's sentence for conspiracy to distribute heroin was imposed pursuant to, and in conformity with, the plea agreement entered into by defendant. 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. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty. State v. Andino , 01-820 (La. App. 5 Cir. 1/15/02), 807 So.2d 944, 945 ; State v. Stevenson , 00-1296 (La. App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166. Accordingly, we find that, pursuant to La. C.Cr.P. art. 881.2(A)(2), defendant cannot seek review of his sentence for conspiracy to distribute heroin to which he agreed at the time of his plea. See State v. Heredia , 02-1162 (La. App. 5 Cir. 4/29/03), 847 So.2d 17, writ denied , 03-1506 (La. 12/12/03), 860 So.2d 1151 (trial court did not err in sentencing defendant without benefits under La. R.S. 40:979 and defendant was precluded from challenging the alleged excessiveness of his sentence per La. C.Cr.P. art. 881.2(A)(2) ). Accordingly, this assignment was not considered.

In his final assignment of error, defendant seeks remand of this matter to allow him to pursue his claim of ineffective assistance of counsel. He claims that he pled guilty under the advice of his attorney that he would be eligible for parole after serving eight to twelve years of his sentence. Defendant maintains his claim is supported by correspondence from his attorney, which was attached to his application for post-conviction relief. He contends that, if he was granted an evidentiary hearing, he could show that his plea rested on the promise of parole eligibility and the absence of parole eligibility vitiates his consent to the plea.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant's right to effective assistance of trial counsel. State v. Thomas , 12-1410 (La. 9/4/13), 124 So.3d 1049, 1053. According to the United States Supreme Court's opinion in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel's performance was deficient and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. at 2068.

The Louisiana Supreme Court has held that the two-part analysis of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), relative to ineffective assistance of counsel claims, applies to challenges to guilty pleas based upon ineffective assistance of counsel. State v. Crawford , 15-0784 (La. 10/2/15), 176 So.3d 394, cert denied , --- U.S. ----, 136 S.Ct. 1454, 194 L.Ed.2d 557 (2016) ; State v. Washington , 491 So.2d 1337, 1338 (La. 1986).

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. Jones , 13-99 (La. App. 5 Cir. 8/27/13), 123 So.3d 758, 765. 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. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924 - 930.8. State v. Taylor , 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

Here, although the record contains defendant's application for post-conviction relief, with a letter from defendant's trial counsel, assuring him "as we have previously discussed, your sentence leaves you legally eligible for parole," we cannot say that the record before us is sufficient to fully explore defendant's claim that his trial counsel was ineffective for allegedly misinforming him regarding his parole eligibility. See State v. Hartshorn , 09-47 (La. App. 5 Cir. 11/10/09), 25 So.3d 172, writ denied , 09-2654 (La. 6/4/10), 38 So.3d 298 (where the defendant's argument that his counsel's incorrect advice and inducements forced him to plead guilty and constituted ineffective assistance of counsel could not be properly considered on appeal). Based on the limited record on appeal, we find that defendant's ineffective assistance of counsel claim would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary.

Errors patent

Finally, as per our routine practice, the record was reviewed for errors patent, according to La. C.Cr.P. art. 920. We note several discrepancies between the commitment, multiple offender commitment, Louisiana Uniform Commitment Order (UCO), multiple offender UCO (MO-UCO), and the transcript. According to State v. Lynch , 441 So.2d 732, 734 (La. 1983), if "there is a discrepancy between the minutes and the transcript, the transcript must prevail."

First, the commitment and the UCO provide that defendant pled guilty on count nineteen to distribution of cocaine, when defendant in fact pled guilty to possession with intent to distribute cocaine.

Second, according to the transcript, after sentencing, the trial court recommended that defendant participate in any available self-help programs offered through the Department of Corrections; however, this recommendation is only contained on the UCO and is not set forth on the commitment, multiple offender commitment, or the MO-UCO.

Third, the transcript and the commitment contain the trial court's order that defendant's sentence on count three be served without benefit of parole, probation, or suspension of sentence, and that the first two years of defendant's sentences on counts six and nineteen be served without benefit of parole, probation, or suspension of sentence; however, the UCO does not contain these restrictions.

This Court has previously remanded a case for correction of the commitments and UCOs in an errors patent review. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-0481 (La. 11/7/14), 152 So.3d 170. Accordingly, we remand this matter and hereby order the district court to correct the noted discrepancies in the commitments and UCO/MO-UCOs. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected commitments and UCO/MO-UCOs to the appropriate authorities in charge of the institution to which defendant has been sentenced and the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2) ).

Decree

For the foregoing reasons, we affirm defendant's underlying convictions and sentences as well as defendant's multiple offender adjudication and enhanced sentence. Further, we remand for correction of the commitments as set forth above.

AFFIRMED; REMANDED FOR CORRECTION OF THE HARD LABOR COMMITMENTS AND UNIFORM COMMITMENT ORDERS

      La. R.S. 40:979(B) sets forth the penalty provisions for conspiracy to distribute heroin, which is classified as a *Schedule 1 narcotic drug, as follows:
      Any person who attempts or conspires to distribute or possess with intent to distribute any substance classified in Schedule I, as provided for in R.S. 40:963 and R.S. 40:964, which is a narcotic drug (all substances in Schedule I preceded by an asterisk "*") shall, upon conviction, be imprisoned at hard labor for not less than eight nor more than fifty years without benefit of parole, probation or suspension of sentence and may, in addition, be required to pay a fine of not more than ten thousand dollars.

      La. R.S. 40:966(B)(1), which provides the penalty for any person who violates the provisions of La. R.S. 40:966(A) with respect to certain narcotic drugs, including distribution of heroin, reads, in pertinent part: Any person convicted of violating that statute with respect to the specified narcotic drugs shall "upon conviction ... be sentenced to imprisonment for not less than [five] nor more than fifty years at hard labor at least [five years] of which shall be served without benefit of probation, or suspension of sentence ...."

      In Allen , supra , the defendant was convicted by a jury of attempted possession of heroin with intent to distribute. The fourth circuit addressed the merits of defendant's argument regarding the excessive nature of his sentence imposed without benefit of parole and found defendant's sentence for attempted possession with intent to distribute was excessive. Unlike the matter at hand, the defendant in Allen did not enter into a plea agreement that clearly stated that his sentence for conspiracy to distribute heroin was to be served without parole, probation, or suspension of sentence.

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

      Defendant will have to satisfy the requirements of La. C.Cr.P. art. 924, et seq., to receive a hearing.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Gary M. FRANCOIS
    NO. 17-KA-471
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Lynn Schiffman, Rachel L. Africk
    COUNSEL FOR DEFENDANT/APPELLANT, GARY M. FRANCOIS, Sherry A. Watters
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Gary M. Francois, appeals his conviction and sentence for second degree murder. For the following reasons, we affirm and remand for correction of the Uniform Commitment Order.

PROCEDURAL HISTORY

On April 9, 2015, a Jefferson Parish Grand Jury returned an indictment charging defendant, Gary M. Francois, with the second degree murder of James Vaughn, in violation of La. R.S. 14:30.1. Defendant pleaded not guilty at his arraignment on April 10, 2015.

Pursuant to a motion for psychiatric examination filed by defendant on November 10, 2015, a competency hearing was held on December 16, 2015, after which the trial court found defendant incompetent to stand trial and remanded him to the Eastern Louisiana Mental Health System. After treatment and subsequent re-evaluation, the trial court held another hearing on May 11, 2016, and determined defendant was competent to stand trial. On July 13, 2016 and July 21, 2016, defendant filed motions to reopen competency and for psychiatric examination, asserting his mental health regressed due to the failure to receive his medication thereby affecting his mental capacity to proceed to trial. Defendant's competency was reassessed and on October 26, 2016, the trial court again found defendant competent to proceed to trial.

On December 1, 2016, defendant withdrew his former plea of not guilty and tendered a plea of not guilty and not guilty by reason of insanity. Trial commenced before a twelve-person jury on March 20, 2017, resulting in a verdict of guilty as charged on March 23, 2017. On May 16, 2017, defendant filed a motion for post-verdict judgment of acquittal, or in the alternative, motion for new trial. Prior to sentencing on May 18, 2017, defendant's post-verdict motion was denied. After a waiver of delays, the trial court sentenced defendant to a term of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On June 9, 2017, defendant filed a motion for appeal, which the trial court granted on June 14, 2017.

FACTS

On Christmas Eve, December 24, 2014, defendant shot James Vaughn four times inside the Foot Locker store at the Oakwood Mall on the Westbank of Jefferson Parish. Krisha Vaughn, mother of the victim, testified that her son went to the mall with his girlfriend, Bradrika Brown, to go Christmas shopping. She testified she knew defendant from the neighborhood and recalled her son and defendant did not "get along."

Off-duty New Orleans Police Detective, Bronson Gettridge, was shopping at the Foot Locker at the time of the shooting. The first gunshot startled Detective Gettridge, who immediately took cover. After the second gunshot was fired, Detective Gettridge observed a man, later identified as defendant, dressed in white jeans and a black hooded sweatshirt firing at the victim. He explained that the third and fourth shots were fired at the victim's upper torso or head after the victim fell to the ground. Detective Gettridge was unable to get a good look at the shooter because his face was hidden under a hooded sweatshirt, but recalled his fully grown beard and use of a semiautomatic weapon.

Defendant then quickly walked out of the Foot Locker and into Forever XXI, an adjacent clothing store, where he exited through a back door and into the mall parking lot. Detective Gettridge followed defendant on foot as he crossed through the parking lot, into an open field, and finally through a nearby subdivision before losing sight of defendant as he ran between buildings. Detective Gettridge testified that defendant only looked back once in his direction while he was following defendant.

During this time, Detective Gettridge placed a 9-1-1 call seeking assistance. Deputy Thomas Bryson, former employee of the Gretna Police Department, was on patrol when the request for assistance came over the radio regarding the shooting suspect described as a black male wearing white pants, a black hooded sweatshirt, and running southbound along Fredericks Street. Deputy Bryson relocated to the area where he observed defendant fitting the suspect's description running southbound on Fredericks Street and talking on his cellular phone. Deputy Bryson engaged his emergency lights and attempted to pull in front of defendant's path, but defendant was able to evade him by changing his direction and then fleeing through a nearby apartment complex. Deputy Bryson exited his vehicle and chased defendant until he entered a drainage canal and was apprehended when he reached the other side.

Police then canvassed the area with the assistance of an explosion detection K-9 for objects defendant discarded during his flight. They recovered a cellular phone, a dark-colored sweatshirt, and a .40 caliber Smith & Wesson handgun. Expert forensic pathologist, Dr. Susan Garcia, testified that when performing the autopsy on the victim, she concluded he sustained four gunshot wounds to his body on his right hand, back, head, and neck area. Dr. Garcia noted the cause of death as gunshot wounds to the head, back, and face. Ballistics testing performed on the handgun revealed a match to the murder weapon and to the projectiles found inside the victim's body. Further, defendant was a major contributor to DNA found on the sweatshirt and the murder weapon.

Tevin Smith, a close friend of defendant, testified that on the day of the shooting, he called defendant and they discussed their separate plans to go shopping at Oakwood Mall. While there, Mr. Smith saw defendant and engaged in a conversation with him before parting ways. After the shooting, Mr. Smith called defendant to make sure he was safe, at which time defendant asked Mr. Smith if he could pick him up. Defendant told Mr. Smith he was by some apartments down the street from the mall.

Harriet Reynolds, and her fifteen-year-old grandson, Jared Reardon, were inside the Foot Locker at the Oakwood Mall on Christmas Eve when the shooting occurred. Ms. Reynolds testified that she did not see the shooter. Jared saw a bearded man with a hood on his head walk into the Foot Locker, pull out a gun, and shoot three or four rounds. Ms. Reynolds and Jared were transported to the police station where they gave statements. While there, Jared was shown a photographic lineup from which he identified defendant as the shooter, stating he was "about seventy to eighty percent sure."

Detective Wesley Doyle testified regarding three phone calls made by defendant while in jail on December 25, 2014, August 1, 2015, and August 11, 2015. During the first call, defendant discussed the shooting incident with an unidentified male. The male asked what happened and defendant replied that he did not know and was trying to figure it out. During the call, defendant's mother asked defendant if he "did it" and defendant did not respond. The male later asked defendant if the victim threatened him and defendant stated, "I don't know, it was like some old s***." The male then asked defendant if he snapped and defendant stated that it was something like that.

During the second call, on August 1, 2015, defendant spoke with his mother about his upcoming trial and about shaving off his beard. Defendant's mother told defendant the State only had two witnesses, one who was unable to identify him and a second witness who was only seventy percent sure defendant was the shooter. Defendant agreed the State did not have much against him. In the final recording, defendant engaged in a conversation with a friend and told him the State did not have much evidence against him.

The State rested and the defense presented the testimony of Sheryl Jones, defendant's mother, who testified that when defendant was nine or ten years old she took him for a mental health evaluation at his school's request based on comments defendant made about animals, TVs, and radios talking to him. Ms. Jones recalled that a physician at West Jefferson Mental Health diagnosed defendant with psychosis and placed him on Risperdal to treat his paranoia. Ms. Jones explained that she weaned him off his medication in his second year of high school because he appeared to have improved.

After graduating from high school, defendant went away to college, and prior to his graduation, Ms. Jones recalled receiving a phone call from her son in the middle of the night during which he told her, "his friends or roommates, or whoever, were trying to put cookies in his head. And he didn't trust nobody." Ms. Jones further recalled defendant stating that people were talking in "basketball codes" about him. When she called him back a few hours later, he seemed better.

After defendant graduated from college with his degree in criminal justice, Ms. Jones noticed several changes in her son including a loss of appetite and seclusion. Ms. Jones offered to get defendant professional help, but he declined, advising her that "he was fine." After defendant's arrest, defendant complained to his mother that he believed the deputies at the jail were poisoning his food.

Tremain Francois, defendant's brother, testified that while growing up, he heard stories from different people about defendant's mental health. Defendant moved in with him for a short time after graduating from college and he noticed a change in defendant's behavior. He testified that defendant kept to himself and was paranoid, believing he could not trust anyone. Tremain recalled one instance, a couple of months before Christmas Eve of 2014, when defendant was crying in his room after a fight with his girlfriend, Carletta Simmons. Defendant asked Tremain "What's wrong with me?" and wanted to know if he could trust certain family members and friends.

Defendant's half-brother, Quintin Sanders, also recalled a time when defendant was in college, and he received a phone call from defendant who whispered into the phone about two of his classmates playing basketball and talking back and forth in code about their plans to kill him. Quintin also recalled a time when defendant thought his girlfriend, Carletta, was cheating on him, believing that she and the guy she was seeing were trying to set him up. Quintin described defendant as paranoid of everyone around him. Quintin also testified that he never saw defendant carry a gun.

Defendant's ex-girlfriend, Carletta Simmons, testified that during their two and a half year relationship in college, defendant became suspicious of everyone, including herself, and began to withdraw from those around him. She testified his paranoia became evident one day when she was with defendant and his roommates, who were talking about basketball. Defendant pulled her to the side and told her they were talking in code about him and believed that she was likely in on "the setup." Carletta recalled that defendant drove her past several apartments on campus noting that someone in one of the apartments was trying to kill him and again accused her of being involved.

Gary James, defendant's father, testified that he personally suffers from depression and was diagnosed by a physician, thirty years prior, with paranoid schizophrenia and was medicated with Risperdal and Prozac. Mr. James testified that he takes the medication daily and that it helps him from seeing and hearing things. He further testified that his uncle, nephew, and defendant all suffer from the same condition.

Peter Dumas, defendant's long-time friend and college roommate, testified that while living with defendant he noticed that he slowly began to change. He testified that defendant became more isolated and paranoid, distancing himself from those around him. He recalled one instance while playing a basketball video game when defendant asked him if he had a problem with him and began questioning their friendship. Peter further recalled an instance when they were playing basketball, and defendant confronted him about the "code" talk engaged in by the other players.

Dr. Sarah Deland, expert in the field of forensic psychiatry, was retained by the defense to conduct an evaluation on defendant regarding his state of mind at the time of the shooting. She opined that defendant was suffering from schizophrenia at the time of the shooting and because of his mental illness, was unable to distinguish right from wrong. In formulating her opinion, Dr. Deland interviewed defendant seven times, reviewed his medical treatment history, interviewed family members and close friends, and reviewed the sanity commission's reports authored by Drs. Richoux and Salcedo.

Dr. Deland testified that when she first met defendant, he was very suspicious and paranoid and it was difficult to get information from him. Defendant did reveal that he experienced auditory hallucinations since he was a child, explaining that the voices he heard often conversed with each other about him. At one point, defendant expressed to Dr. Deland his concern that his legal counsel might be the police and that people poisoned his food in jail. He also talked about receiving messages through television. Dr. Deland further testified that upon his arrest, defendant was placed on suicide watch and was observed by two nurses to be suffering from some form of psychosis. Defendant later told Dr. Deland that he tried to get on suicide watch so "he could get away from the tier."

Dr. Deland testified that in the weeks leading up to the shooting, defendant became increasingly paranoid. He believed people were setting him up and that people who were out to get him were following him. Defendant further told Dr. Deland that people on the street told him to watch his back and as a result, he started carrying a weapon because he was frightened. Defendant also told Dr. Deland that on the day of the shooting he went to the mall looking for a pair of shoes for his son. He explained that when he entered Foot Locker and saw the victim, everything came together that the victim was the person responsible for the people following him and this caused defendant to pull out a gun and shoot the victim. Defendant indicated to Dr. Deland that after he shot the victim, he ran because he believed other people involved in the conspiracy might try to harm him.

Dr. Deland asked defendant whether he had a history with the victim and defendant told her that approximately ten years prior, the victim expressed anger towards defendant for unknown reasons and fired a gun in defendant's direction. Dr. Deland independently confirmed the incident through defendant's friend, who was with him at the time of the encounter. Dr. Deland believed this past incident led defendant to focus on the victim in the mall and attribute him to defendant's delusion that an organized conspiracy of people were trying to set him up. In conclusion, Dr. Deland opined that after taking the totality of the circumstances into consideration, and because of his mental illness, defendant was unable to distinguish between right and wrong at the time of the shooting.

Dr. Jeffery Nicholl, expert in the field of forensic psychiatry, treated defendant for competency restoration at the Eastern Louisiana Mental Health hospital while he was awaiting trial. Dr. Nicholl testified that when he interviewed defendant on February 16, 2016, he was quiet, his thoughts were vague and disorganized, and he was equivocal about whether he was having auditory hallucinations. Dr. Nicholl's diagnostic impression was a GAF (Global Assessment of Function) of 50, indicating the presence of a moderate psychiatric illness. Dr. Nicholl again observed defendant on February 25, 2016, and at that time, he found defendant exhibited increasing signs of paranoia and psychosis, stating defendant had told him he heard mumbling voices, but could not make out what they were saying. Dr. Nicholl noted defendant asked numerous questions about whether their conversations could be used against him in a court of law.

During his next encounter with defendant on March 3, 2016, defendant did not provide specific details pertaining to any paranoid delusions ; however, Dr. Nicholl observed that his general behavior seemed paranoid and he lacked any emotion, behavior he found to be consistent with schizophrenia. Unsure whether defendant suffered from a delusional disorder or schizophrenia, Dr. Nicholl treated defendant with Abilify, an anti-psychotic medication. On March 10, 2016, Dr. Nicholl again met with defendant who advised him that he occasionally had the feeling that people could control his thoughts and began questioning Dr. Nicholl on the Bennett criteria used for competency to stand trial in Louisiana. He appeared paranoid to Dr. Nicholl, as if he thought Dr. Nicholl was trying to trick him.

Defendant continued on the medication, with the addition of Trazodone, a sleep aid, and on March 15, 2016, defendant denied any hallucinations or delusions. Believing the medication was working, Dr. Nicholl increased the dosage of the Abilify and rated defendant with a GAF score of 55. Dr. Nicholl again saw defendant on March 23, 2016, noting that defendant occasionally glanced to his side in a suspicious manner, but denied hallucinations or delusions. Approximately one week later, defendant began to refuse his medication, which seemed to cause deterioration as defendant became more paranoid and disorganized in his thinking. Defendant began taking his medication again and was last seen by Dr. Nicholl on April 5, 2016, during which he reported defendant as having a delusional disorder of the paranoid type. Defendant was then found competent to proceed to trial and returned to the court system.

In rebuttal, the State called Dr. Richard Richoux, a Jefferson Parish jail psychiatrist who was qualified as an expert in the field of forensic psychiatry. Dr. Richoux testified that he first met with defendant on January 28, 2015, after he was placed on suicide watch in the jail. Upon evaluation, Dr. Richoux believed defendant suffered from an adjustment disorder due to stress from external circumstances. Dr. Richoux noted defendant was not suicidal or psychotic and merely wanted to be moved to another location in the jail. Dr. Richoux again saw defendant on February 18, 2015, reporting that defendant was not psychotic or suicidal and was still suffering from an adjustment disorder.

On December 2, 2015, Dr. Richoux and Dr. Rafael Salcedo were appointed by the court to evaluate defendant's competency to proceed to trial. During their meeting with defendant, they learned he received psychiatric treatment as a child, but defendant was unable to provide details. He reported that he experienced auditory hallucinations intermittently for a number of years, and it appeared that his thought process was disorganized. Dr. Richoux opined that defendant was likely suffering from schizophrenia despite his two prior interactions with defendant during which no psychotic symptoms were present. After questioning defendant concerning the Bennett criteria, Drs. Richoux and Salcedo believed defendant to be impaired in his ability to rationally assist his counsel, thus, recommending defendant be found incompetent to proceed to trial and remanded to a mental health hospital.

Drs. Richoux and Salcedo re-evaluated defendant's competency on April 27, 2016, after defendant's two-month hospital commitment, and agreed with the treatment team at the hospital that defendant achieved competency, feeling that he was not manifesting any psychotic symptoms. Drs. Richoux and Salcedo again evaluated defendant on August 3, 2016, at the instruction of the court because defendant's counsel believed his competency deteriorated due to issues at the jail which caused defendant to have missed dosages of his prescribed medication. Their finding, despite the fact that he was off his medication, was that defendant did not exhibit any psychotic symptoms nor did he have any difficulties responding to questions related to the Bennett criteria. Thus, it was recommended that defendant be found competent to proceed to trial.

Dr. Richoux was also hired by the State to evaluate defendant's sanity at the time of the offense, which he explained differs from competency to proceed to trial, in that sanity deals with a person's ability to distinguish right from wrong. Dr. Richoux testified that the presence of psychotic symptoms or a mental illness does not automatically equate with the inability to distinguish right from wrong. Dr. Richoux conceded that defendant suffers from a psychiatric disorder, whether schizophrenia or a delusional disorder, but stated that in his medical opinion, despite his psychiatric disorder, defendant could distinguish right from wrong at the time of the offense.

Dr. Richoux explained the factors that went into his medical opinion, including, defendant's varied degrees of functioning over time which indicated that at some points defendant was asymptomatic and functioning at a high enough level to complete his college degree in the absence of treatment. Dr. Richoux further opined that for defendant to be unable to distinguish right from wrong at the time of the offense on the basis of paranoia, he had to distort reality in such a way that he would have felt he was acting in self-defense. He clarified that psychotic motivation, i.e. when a person's actions are driven by psychotic thoughts, does not equate with the inability to distinguish right from wrong.

Dr. Richoux testified that defendant's behavior on the day of the shooting does not comport with the actions of someone who became more and more paranoid in the weeks prior to the shooting. He explained defendant made a conscious decision to go to Oakwood Mall on Christmas Eve at the busiest time of year, despite his paranoia regarding a conspiracy against him. Dr. Richoux concluded this was atypical behavior for a paranoid person. He further noted that defendant's actions exhibited in the mall surveillance video do not appear to be those of a person who is acutely paranoid. In the video, defendant stood in front of Foot Locker for four minutes before entering the store. Dr. Richoux found this detail important, reasoning that a paranoid person standing for four minutes has the opportunity, if their paranoia overcomes them, to remove themselves from the situation and is not indicative of someone in fear for his life. Instead, he believed the video depicted defendant as the aggressor as he moved towards the victim while drawing a gun, pointing it at the victim and then shooting him.

Dr. Richoux also testified that after the shooting, defendant entered the adjacent store and did not appear panicked, but attempted to blend in with the crowd exiting the mall. Dr. Richoux believed that in his medical opinion, such actions do not comport with a person who is in a state of panic and anxiety about people out to get them. During his flight, defendant also discarded the murder weapon, which Dr. Richoux reasoned is counterintuitive for a person in acute fear for his life and of someone who believes others are involved in a conspiracy against him. Dr. Richoux also noted that on the day following the shooting, defendant indicated in a recorded jail telephone conversation that the shooting occurred because "it was some old s***," which Dr. Richoux believed referred to the past incident when the victim fired a gun in defendant's direction.

DISCUSSION

In defendant's first assignment of error, he argues his conviction is not supported by the evidence since no rational trier of fact could have found defendant failed to carry his burden of proving by a preponderance of the evidence that he was insane at the time of the offense.

In Louisiana, the law presumes a criminal defendant is sane. La. R.S. 15:432 ; State v. Abbott , 11-1162 (La. App. 5 Cir. 5/31/12), 97 So.3d 1066, 1068. To rebut this presumption of sanity and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. Id. ; La. C.Cr.P. art. 652. This burden is not borne by proving the mere existence of a mental disease or defect. Id. Rather, to be exempted from criminal responsibility, the defendant must show he suffered a mental disease or defect which prevented him from distinguishing between right and wrong at the time he committed the conduct in question. La. R.S. 14:14.

The determination of sanity is a factual matter. Abbott , 97 So.3d at 1068. In considering an accused's plea of not guilty and not guilty by reason of insanity, the trier of fact must first determine whether the State has proven the essential elements of the charged offense beyond a reasonable doubt. Id. at 1068-69. The trier of fact may then proceed to the determination of whether the defendant was incapable of distinguishing between right and wrong at the time of the offense. Id. at 1069.

All evidence, including both expert and lay testimony, along with defendant's conduct and actions before and after the crime, may be considered in determining whether the defendant has met his burden of proof. Id. at 1069. A determination of the weight of the evidence is a question of fact that rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and if rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted. State v. Williams , 07-1407 (La. 10/20/09), 22 So.3d 867, 875-76, cert. denied , 560 U.S. 905, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010).

On review of a claim for sufficiency of evidence in an action where an insanity defense has been raised, an appellate court, applying the standard outlined in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts and circumstances of the case, any rational fact-finder, viewing the evidence in a light most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Id.

In the present case, defendant was charged with second degree murder in violation of La. R.S. 14:30.1, which is defined as the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. Defendant changed his initial plea of "not guilty" to the plea of "not guilty and not guilty by reason of insanity." The jury rejected defendant's insanity defense, finding him guilty as charged. Defendant does not argue the State failed to prove the elements of the offense. Rather, defendant contends he met his burden of proving by a preponderance of the evidence that he did not know right from wrong at the time of the offense and, therefore, should be exempt from criminal responsibility.

On appeal, defendant maintains he met his burden through the expert testimony of Dr. Deland, who testified defendant was unable to distinguish right from wrong at the time of the offense. He also argues that testimony from several defense witnesses established his medical history and behaviors leading up to the shooting, including his diagnosis of schizophrenia causing auditory hallucinations and paranoia which deluded him into believing he had to protect himself from the victim whom he thought to be part of an ongoing conspiracy against him.

In this case, expert witnesses disagreed as to defendant's sanity. The decision about which witness to believe belongs to the jury and should not be overturned on appeal unless an abuse of discretion can be shown. State v. Johnson , 43,935 (La. App. 2 Cir. 2/25/09), 3 So.3d 697, 704.

In support of his insanity defense, defendant offered the testimony of certain family members and friends. Mrs. Jones, defendant's mother, testified regarding defendant's auditory hallucinations, which began at a young age, and his alleged diagnosis of psychosis, which she claimed was treated with Risperdal up until high school, despite lack of medical records substantiating this testimony. Mrs. Jones, Quintin (defendant's half-brother), and Tiara (defendant's sister) also testified regarding an incident in college when defendant called them acting paranoid about his friends whom he believed were talking in code about how they were out to get him. Further, defendant's brother (Tremain), and his ex-girlfriend (Carletta), recalled an incident which occurred a few months prior to the shooting when defendant broke down crying, skeptical about which family members and friends he could trust. Carletta also told the jury that while dating defendant during college, he accused her of being part of a conspiracy to have him killed.

Both State and defense experts agreed that defendant suffered from schizophrenia, a psychiatric disorder; however, their opinions diverged as to whether defendant could distinguish right from wrong at the time of the shooting. Defense expert psychiatrist, Dr. Deland, testified that in her medical opinion, defendant was suffering from schizophrenia at the time of the shooting, and because of that mental illness, was unable to distinguish right from wrong. Dr. Deland relayed the information she obtained from her interactions with defendant, including his paranoid behavior and his commitment to a forensic hospital for treatment after initially being found incompetent to stand trial. She discussed defendant's treatment with certain anti-psychotic medications that effectively restored his competency to proceed to trial. It was her opinion that defendant's actions at the time of the shooting were fearful in nature based on a psychotic motivation in which he believed the victim was behind a plot against him. She explained that in the weeks leading up to the shooting she understood defendant experienced auditory hallucinations causing him to become increasingly paranoid. Dr. Deland stated that as a result of his paranoia defendant began to carry a gun, and when he saw the victim in the mall, everything came together. Dr. Deland testified she was aware of a prior incident between defendant and the victim and opined that the prior encounter during which the victim fired a gun in defendant's direction approximately ten years prior to the victim's murder, might have led defendant to attribute the victim to his delusion regarding an organized conspiracy against him.

Conversely, the State's expert psychiatrist, Dr. Richoux, and forensic psychologist, Dr. Salcedo, were of the opinion that defendant's psychiatric disorder did not impair his ability to distinguish right from wrong at the time of the offense. Dr. Richoux testified that during his initial encounters with defendant shortly after his arrest, no psychotic symptoms were present. However, after a meeting with defendant in December of 2015, defendant appeared to Dr. Richoux to be suffering from schizophrenia. After treatment at a mental health hospital, Dr. Richoux was of the opinion that defendant achieved competency and was not manifesting any psychotic symptoms. Per the State's request, Dr. Richoux also evaluated defendant's sanity at the time of the offense. In his medical opinion, Dr. Richoux conceded that while defendant suffers from a psychiatric disorder, whether schizophrenia or a delusional disorder, he was able to distinguish between right and wrong at the time of the offense.

Dr. Richoux was of the opinion that just because a person's actions are motivated by psychotic thoughts does not mean they have the inability to distinguish right from wrong. He explained that defendant's behavior on the day of the shooting does not comport with the actions of a person who became increasingly paranoid in the weeks leading up the shooting. He noted that despite his paranoia, defendant elected to go shopping at the mall on Christmas Eve, one of the busiest shopping days of the year, and then is seen on surveillance cameras standing in front of Foot Locker for four minutes before acting as the aggressor by entering the store and shooting the victim. It was his opinion that defendant's actions following the shooting, including his attempt to blend in with the panicked crowd, flight from the police, and disposal of the murder weapon, all aided in his opinion regarding his sanity at the time of the offense.

As touched on by Dr. Richoux, defendant's actions prior to, at the time of, and after the shooting lend further credence to the jury's determination that he was not insane at the time of the offense. Video surveillance at the mall depicts defendant standing in front of Foot Locker for approximately four minutes prior to entering the store and firing two shots, one into the victim's back, who had just made a return at the cashier's counter, and two into the victim's face who was already lying on the ground, before fleeing by attempting to blend in with the mall crowd. Further, Dr. Deland conceded the video surveillance showed defendant put on the hood of his sweatshirt prior to the shooting, possibly to conceal his identity.

The evidence at trial further established that defendant then attempted to evade capture by exiting the mall and fleeing through a nearby neighborhood where he discarded his firearm, despite Dr. Deland's theory that defendant fled because he believed other people were out to get him. Defendant also discarded his hooded sweatshirt and cell phone. Such actions aid in the conclusion that defendant knew legal consequences stemmed from his actions. See State v. Jones , 12-750 (La. App. 5 Cir. 5/16/13), 119 So.3d 250, 257 n.8 (finding a defendant's flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience); State v. Pettaway , 450 So.2d 1345, 1354 (La. App. 2nd Cir. 1984), writ denied , 456 So.2d 171 (La. 1984) (where expert psychiatrist stated the actions of the defendant, a diagnosed paranoid schizophrenic, immediately after the crime in running and disposing of the weapon were good indications he knew what he did was wrong.)

Further, the victim's mother testified her son and defendant did not get along, testimony which was substantiated by a recorded jail phone call made by defendant following his arrest. During that call defendant was asked if the victim threatened him and he responded, "I don't know, it was like some old s***." Other recorded jail communications evidence defendant's desire to escape culpability where discussions were held concerning the lack of evidence by the State regarding the eyewitness's ability to identify defendant as the perpetrator of the crime.

The jury, faced with the conflicting psychiatric evidence, obviously rejected the opinion of Dr. Deland and believed Drs. Salcedo and Richoux that defendant was capable of distinguishing between right and wrong at the time of the offense, despite the presence of a psychiatric disorder. If there is conflicting evidence on the issue of insanity, the reviewing court should accord great weight to the jury's resolution of the conflicting evidence, provided the jury was properly instructed and no evidence was prejudicially admitted or excluded. Pettaway , supra. The jury's decision should not be overturned unless no rational juror could have found the defendant failed to prove his insanity at the time of the offense. State v. Sharp , 418 So.2d 1344, 1348 (La. 1982) ; State v. Moore , 568 So.2d 612, 618 (La. App. 4th Cir. 1990).

Despite the conflicting expert testimony presented, we find the record supports the determination made by the jury. See State v. Milton , 13-672 (La. App. 5 Cir. 5/14/14), 142 So.3d 157, where the defendant displayed a functioning ability to distinguish right from wrong based on his subsequent feeling of guilt, prayers for the victim, flight, and disposal of the weapon; Abbott , supra , where this Court found the evidence supported the rejection of the defendant's claim under La. R.S. 14:14 that a schizoaffective disorder prevented him from distinguishing right and wrong because the trial court properly rejected the opinions of the evaluating physicians and gave deference to the treating physician's opinion.

Therefore, viewing the foregoing evidence in a light most favorable to the prosecution, we find that any rational trier of fact could conclude defendant failed to prove by a preponderance of the evidence that he was unable to distinguish between right and wrong at the time of the offense.

In his second assignment of error, defendant argues the trial court imposed his life sentence without comment or consideration of the factors set forth under La. C.Cr.P. art. 894.1. Defendant contends this alleged failure by the trial court to consider the mitigating factors that support a sentence below the statutory minimum renders his sentence constitutionally excessive. Defendant maintains a downward departure from the mandatory minimum sentence was warranted in his case under a Dorthey analysis, because he is a twenty-five-year-old, college-educated man, with no history of violence or criminal record, who was suffering from a mental illness at the time of the shooting, regardless of whether it deprived him of reason, thus establishing exceptional circumstances.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hunter , 10-552 (La. App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272. Additionally, when a defendant does not raise the issue of the trial judge's failure to consider pertinent mitigating factors under La. C.Cr.P. art. 894.1 at the trial court level, he is precluded from raising such an issue on appeal. State v. Declouet , 09-1046 (La. App. 5 Cir. 10/12/10), 52 So.3d 89, 105, writ denied , 10-2556 (La. 4/8/11), 61 So.3d 681.

The record reflects that although defendant orally objected to the sentence, he failed to file a motion to reconsider sentence. On appeal, he now contends, despite the imposition of a mandatory life sentence, the trial court should have considered the guidelines set forth under La. C.Cr.P. art. 894.1, along with the circumstances of his case, to determine whether a downward departure was warranted based on his "exceptional" circumstances. By failing to raise these arguments in a motion to reconsider sentence, defendant is limited to a bare review of his sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ denied , 05-0244 (La. 12/9/05), 916 So.2d 1048. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.

State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

The penalty for second degree murder is life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14.30.1. A mandatory minimum sentence is presumed constitutional. State v. Royal , 03-439 (La. App. 5 Cir. 9/30/03), 857 So.2d 1167, 1174, writ denied , 03-3172 (La. 3/19/04), 869 So.2d 849. Further, Louisiana courts have consistently held that a mandatory sentence of life imprisonment for second degree murder does not constitute cruel and unusual punishment. State v. Graham , 422 So.2d 123 (La. 1982) ; State v. Lovick , 00-1833 (La. App. 5 Cir. 5/16/01), 788 So.2d 565, 573, writ denied , 01-1836 (La. 5/10/02), 815 So.2d 833.

In Dorthey , supra , the Louisiana Supreme Court recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. In State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676, the Louisiana Supreme Court reexamined Dorthey and outlined the criteria a defendant must meet in order to show that a mandatory minimum sentence under the Habitual Offender Law is constitutionally excessive. Although Dorthey involved a mandatory enhanced sentence, this Court has applied the principles set out in Dorthey to the review of mandatory life sentences other than those imposed under the Habitual Offender Law. See State v. Temple , 01-655 (La. App. 5 Cir. 12/12/01), 806 So.2d 697, 707, writ denied , 02-234 (La. 1/31/03), 836 So.2d 58.

In order to rebut the presumption that a mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is "exceptional, which ... 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." Johnson , 709 So.2d at 676. A sentencing court should exercise its authority to declare excessive a mandatory minimum sentence only under rare circumstances. State v. Lindsey , 99-3256 c/w 99-3302 (La. 10/17/00), 770 So.2d 339, 345.

Defendant fails to show by clear and convincing evidence that his particular circumstances are an exception to the constitutional application of the mandatory sentence. Defendant did not offer any evidence at sentencing or present argument to rebut the presumption that the mandatory sentence is constitutional. Defendant does not cite a single case where a mandatory life sentence imposed on a defendant convicted of second degree murder was found to be unconstitutionally excessive on appellate review, nor does he present any convincing evidence to support a downward departure from the mandatory minimum life sentence. Accordingly, considering the totality of the facts and circumstances of this case, the record does not support the conclusion that the sentence makes no measurable contribution to acceptable goals of punishment.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals one error patent in the Uniform Commitment Order ("UCO"), which must be corrected by the trial court.

A discrepancy exists between the UCO and the minutes and the transcript. Here, defendant was sentenced to a term of life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence; however, the UCO does not reflect the term of imprisonment imposed. Specifically, the UCO indicates the "total sentence" and "imposed time" as "0 yr/ 0 m/ 0d." Accordingly, we remand this matter and hereby order the district court to correct the noted discrepancy in the UCO regarding the sentence imposed by the trial court. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department.

DECREE

For the foregoing reasons, this Court affirms defendant's conviction and sentence. We remand this matter for correction of the Uniform Commitment Order in accordance with the instructions set forth in the opinion.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF THE UCO

      Law enforcement obtained video surveillance within the Foot Locker, food court, and Forever XXI, which captured defendant on tape.

      Defendant's sister, Tiara Francois, corroborated their mother's account that defendant talked about hearing voices.

      Defendant was not able to obtain copies of medical records regarding this treatment from West Jefferson Mental Health.

      Tiara also testified that she received a similar phone call from defendant.

      Carletta confirmed this encounter with defendant and the paranoia he exhibited by asking who he could trust.

      On cross-examination, Dr. Deland testified that not everyone who is diagnosed with schizophrenia is unable to distinguish right from wrong.

      State v. Bennett , 345 So.2d 1129 (La. 1977).

      Dr. Salcedo was accepted as an expert in the field of forensic psychology.

      Dr. Salcedo concurred with Dr. Richoux's medical opinion. Dr. Salcedo noted that in order for a person to be found legally insane, that person must be seriously psychiatrically impaired, which Dr. Salcedo did not believe applied in defendant's case given his high functioning abilities combined with the facts surrounding the shooting.

      Dr. Deland testified that she did not review the video of the shooting.

      State v. Dorthey , 623 So.2d 1276 (La. 1993).