author: JAMES F. MCKAY III, CHIEF JUDGE JENKINS, J.,

text:
    STATE of Louisiana v. Constant ALLAH
    NO. 2016-KA-0952
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 12, 2017

      LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, J. TAYLOR GRAY, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, Counsel for State of Louisiana
    DANATUS N. KING, DANATUS KING & ASSOCIATES, 2475 Canal Street, Suite 308, New Orleans, Louisiana 70119, Counsel for Defendant/Appellant
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins)
   JAMES F. MCKAY III, CHIEF JUDGE

liThe defendant, Constant Allah, appeals the trial court’s February 26, 2016 judgment, denying his motion for ex-pungement. For the reasons that follow, we convert the defendant’s appeal to an application for supervisory writ, grant the writ, and remand for further proceedings.

STATEMENT OF THE FACTS

The defendant was charged with one count of second degree kidnapping and two counts of carnal knowledge of a juvenile in a bill of information filed on March 31, 2011. He pled not guilty to all counts at his arraignment on April 11, 2011. On April 10, 2012, the State amended the bill of information to charge the defendant with three counts of second degree battery. On the same date, the defendant pled guilty to all three counts pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). After waiving delays, the trial court sentenced the defendant to serve three years at hard labor on each count, the sentences to be served concurrently. The sentence was suspended and deferred under article 893, and the defendant was placed on active probation for three years for each count. The trial court also imposed a fine and fees.

| aAfter paying all fines and completing his probation, the defendant filed a motion to set aside his conviction and dismiss the prosecution. The defendant also filed a motion for expungement, which the State opposed.

After hearing the matter, the trial court rendered judgment on February 26, 2016, denying the defendant’s motion for ex-pungement. The defendant filed a timely motion for appeal on March 8, 2016, and the trial court set a return date of March 24, 2016.

DISCUSSION

The sole issue in this criminal appeal is whether the trial court erred in denying the defendant’s motion for ex-pungement, which is not an appealable judgment. “However, this Court’s custom is to convert an improperly filed criminal appeal to a writ.” State v. Waddell, 12-0111, p. 1 (La.App. 4 Cir. 10/24/12), 102 So.3d 1025, 1027 (citations omitted). Accordingly, the defendant’s appeal is converted to a writ.

The defendant argues that the trial court erred when it denied his motion for expungement because he entered his plea pursuant to La. C.Cr. P. art. 893 and Alford, supra. The State opposed the motion for expungement on the basis that second degree battery is designated a crime of violence.

La. C.Cr.P. art. 978, which governs the expungement of convictions, provides in pertinent part:

A. Except as provided in Paragraph B of this Article, a person may file a motion to expunge his record of arrest and conviction of a felony offense if either of the following apply:
(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 893(E).
|s(2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Sub-paragraph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.
B. No expungement shall be granted nor shall a person be permitted to file a motion to expunge the record of arrest and conviction of a felony offense if the person was convicted of the commission or attempted commission of any of the following offenses:
(1) A crime of violence as defined by or enumerated in R.S. 14:2(B).
* * * ⅜
C. The motion to expunge a record of arrest and conviction of a felony offense shall be served pursuant to the provisions of Article 979.
D. Expungement of a record of arrest and conviction of a felony offense shall occur only once with respect to any person during a fifteen-year period.

La, C.Cr. P. art. 978 (emphasis added).

La. C.Cr.P. art. 893 (the version in effect in 2012) allows for the suspension of sentences and imposition of probation. The statute also provides for the deferment of sentences in certain cases:

A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the | ¿supervision of the division of probation and parole. The court shall not suspend the sentence of a conviction for a crime of violence as defined in R.S. 14:2(B)(1), (2), (3), (4), (5), (9), (10), (11), (12), (13), (14), (15), (16), (18), (20), (21), (22), (26), (27) or (28), or of a second conviction if the second conviction is for a violation of R.S. 14:73.5, 81.1, or 81.2. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal. Supervised release as provided for by Chapter 3-E of Title 15 of the Louisiana Revised Statutes of 1950 shall not be considered probation and shall not be limited by the five-year period for probation provided for by the provisions of this Paragraph.
⅝ ⅝ ⅜ ¾*
E.(l)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(b) The court shall not defer a sentence under this provision for an offense or an attempted offense which is defined or enumerated as a crime of violence under R.S. 14:2(B) or a sex offense as defined by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A). (emphasis added).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumu-lation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.
F. Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a felony.

In the present case, the defendant entered into a plea agreement in which he pled guilty to three counts of second degree battery. The waiver of constitutional Isrights/plea of guilty stated that the defendant’s sentence was to be “3 years DOG suspended, deferred. 3 years active probation, $1000 fine plus costs. Concurrent.” At the sentencing hearing held on April 10, 2012, the trial court stated that the sentences were suspended and deferred under La. C.C.P. art. 893. The trial court also noted that the defendant was being sentenced under La. C.Cr.P. art. 893, “the expungeable statute.”

Deferment of sentences imposed for convictions of crimes of violence are generally not permitted under La. C.Cr.P. arts. 893 and 978. As such, the State argues that the trial court was without authority to defer the sentences, and the trial court’s statements concerning the deferment of the sentences are without effect and cannot be used to allow for the expungement of the defendant’s convictions. The defendant counters that the plea agreement is a contract between the State and the defendant, and the defendant can demand specific performance of the plea agreement, including the ability to expunge the convictions on the basis that his sentences were deferred. The defendant submits that the State is estopped from arguing that defendant’s convictions cannot be expunged because the State did not object to the ex-pungement at the time of sentencing. The defendant also argues, in the alternative, that if the trial court could not defer the sentences, then the plea agreement is null and without effect, and he should be allowed to withdraw his guilty plea.

In determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law. State v. Nall, 379 So.2d 731 (La. 1980); State v. Lewis, 539 So.2d 1199 (La. 1989). Contractual principles may be helpful by analogy in deciding disputes involving plea agreements. Ricketts v, Adamson, 483 U.S. 1, 16, 107 S.Ct. 2680, 2689, 97]fiL.Ed.2d 1 (1987). However, the criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract laws. Nall, 379 So.2d at 734 (Dennis, J., concurring). Moreover, commercial contract law can do no more than to serve as an analogy or point of departure, since “plea agreements are constitutional contracts.” Ricketts, 483 U.S. at 16, 107 S.Ct. at 2689.

In State v. Louis, 94-0761 (La. 11/30/94), 645 So.2d 1144, the Supreme Court referred to the law of contracts for application by analogy in determining whether a plea agreement existed. The Court noted that a contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. Once there is an offer and acceptance, the agreement is subject to specific performance. La. C.C. art. 1986. The obligation may be dependent upon an uncertain event. La. C.C. art. 1767. A lawful cause is also necessary to the existence of a contract. La. C.C. art. 1966. The cause is the reason why a party obligates himself. La. C.C. art. 1967. “A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.” La. C.C. art. 1967.

One of the defects of consent which may vitiate an agreement is error. La. C.C. art. 1948. An error “vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” La. C.C. art. 1949. “Error may concern a cause when it bears on the nature of the contract, or the thing that-is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstances that the parties |7regarded, or should in good faith have regarded, as a cause of the obligation.” La. C.C. art. 1950.

In State v. Byrnside, 34,948 (La.App. 2 Cir. 8/22/01), 795 So.2d 435, the defendant was charged with sexual battery. However, pursuant to a plea bargain the defendant pled guilty to aggravated battery in exchange for the State’s recommendation that he be sentenced under La. C.Cr.P. art. 893. The trial court rejected the plea bargain, refusing to sentence the defendant under article 893, and allowed the defendant to withdraw his plea of guilty. The defendant then filed a motion to enforce the plea bargain, which the trial court denied. The defendant then entered a guilty plea to molestation of a juvenile, reserving his right to appeal the denial of the motion to enforce the original plea agreement. On appeal, the Second Circuit Court affirmed, finding that the plea bargain was prohibited by law, stating as follows:

The original plea agreement which Defendant is trying to enforce is prohibited by law. La. C.CrJP. art, 893 provides that “the court shall not suspend the sentence of a conviction for a crime of violence as defined in R.S. 14:2(13) ... (e)....” La. R.S. 14:2(13)(e) lists aggravated battery as a crime of violence. Thus, the “contract” Defendant is trying to enforce—article 893 treatment—has an unlawful cause. The contract then cannot exist under article 1966 and is an absolute nullity under La. C.C. art. 2030 which provides, in pertinent part:
... a contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.
Thus, the jurisprudence leads us to conclude that this entire “contract” is a nullity.
It has been held that a plea bargain, which attempted to afford a defendant an illegally lenient sentence in that it allowed for a suspended sentence for a third-felony offender, was an absolute nullity which could not be confirmed on appeal. State v. Guilbeaux, 99591 (La. App. 5th Cir. 11/10/99), 749 So.2d 16. In that case, the court held that it was not in 1 «society’s best interest to uphold a plea bargain that afforded an illegally lenient sentence. Likewise, the plea bargain in the case sub judice is not enforceable,

Byrnside, 34,948, pp. 4-5, 795 So.2d at 437-438.

We note that in the present matter, the State was aware of the use of La. C.Cr.P. art. 893 in sentencing the defendant pursuant to the plea agreement. The waiver of rights/guilty plea form specifically states that the defendant’s sentences were to be deferred. The State did not object when the guilty plea form was executed or when the trial court imposed sentence, specifically referencing La. C.C.P. art. 893 and stating that the sentences were deferred and noting that the defendant was being sentenced under “the ex-pungeable statute”. Notwithstanding the fact that the State acquiesced in the plea agreement, for which an argument can be made that the State cannot now object to the expungement of the defendant’s conviction pursuant to La. C.C.P. art. 893, the fact remains that the defendant’s plea under La. C.Cr.P. art. 893 is an absolute nullity.

It is well established that a trial court may set aside a guilty plea and sentence when the facts surrounding the guilty plea show it to be constitutionally deficient. State v. Smith, 406 So.2d 1314 (La. 1981). A guilty plea is constitutionally infirm when a defendant is induced to enter that plea by what he justifiably believes was a plea bargain, and that bargain is not kept. State v. Dixon, 449 So.2d 463 (La. 1984). As the Court further noted:

This court has consistently permitted a constitutionally infirm guilty plea to be withdrawn after sentencing by way of appeal or post conviction relief. State v. Hayes, 423 So.2d 1111 (La. 1982), and cases cited therein. It is by now settled law that a guilty plea is |9constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept. In such a case a defendant has been denied due process of law because the plea was not given freely and knowingly. State v. Hayes, supra; State ex rel. LaFleur v, Donnelly, 416 So.2d 82 (La. 1982); State v. Jones, 398 So.2d 1049 (La. 1981); State v. Neitte, 363 So.2d 425 (La. 1978); State ex rel, Clark v. Marullo, 352 So.2d 223 (La. 1977).

Dixon, 449 So.2d at 464.

The question presented here is whether the promise of expungement was an inducement or consideration for the defendant’s plea. Based on the plea colloquy, which includes statements made by the trial court, it is reasonable to conclude that the defendant had a justifiable belief that he would receive the benefit of La. C.Cr.P. art. 893. Thus, it is unclear whether defendant’s plea was freely and knowingly given. Accordingly, this matter is remanded to the trial court for an eviden-tiary hearing to determine whether the defendant’s plea was freely and knowingly made, with reservation of the defendant’s right to withdraw his guilty plea.

CONCLUSION

For the reasons assigned, the case is remanded to the trial court with instructions to hold an evidentiary hearing to determine whether the defendant’s plea was freely and knowingly made, and to allow the defendant the opportunity to withdraw his plea, if he so chooses.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; REMANDED

JENKINS, J., DISSENTS AND ASSIGNS REASONS

JENKINS, J.,

DISSENTS AND ASSIGNS REASONS

hi find no abuse of discretion in the trial court’s denial of defendant’s Motion to Ex-pungement. The defendant is not eligible to have a crime of violence expunged from his record.

First, the defendant was not eligible to have his sentence deferred under La. C.Cr.P. Art. 893. Article 893 contains specific prohibitions on certain felonies being deferred:

The court shall not defer a sentence under this provision for an offense or an attempted offense which is defined or enumerated as a crime of violence under [La.] R.S. 142(B)...

La. C.Cr.P. art. 893(E)(1)(b).

Second Degree Battery is defined as a crime of violence under La. R.S. 14:2(B)(6).

Second, La. C.Cr.P. 978 provides, in pertinent part:

No expungement shall be granted nor shall a person be permitted to file a motion to expunge the record of arrest and conviction of a felony offense if the person was convicted of the commission or attempted commission of any of the following offenses: (1) A crime of violence as defined by or enumerated in R.S. 142(B).

La. C.Cr.P. art. 978(B).

It is clear that defendant’s convictions and sentences for Second Degree Battery are crimes of violence ineligible for a grant of expungement under Article 978(B).

| ^Finally, I agree with the State’s argument that the record is void of the State entering into a plea agreement that included the deferral of defendant’s sentence. The colloquy of the April 10, 2011 sentencing hearing includes the following exchange:

The Court: The State of Louisiana has extended to you a plea bargain. They have amended each of these three counts to Second-degree Battery. Second-degree battery is a felony offense. However, the penalty is a fine of not more than two-thousand dollars or imprisonment with or without hard labor for not more than five years or both. Do you understand the original charge and the sentences that are carried and the amended charges?
The Defendant: Yes. ...
The Court: Do you understand your sentence in this case, Mr. Allah, is going to be under Article 893, which is the expungeable statute. It’s going to call for a three-year, Department of Corrections, sentence suspended, three years of active probation, which I can terminate early if you’ve done well in the probation. There will be fines and fees imposed. Is that your understanding of your sentence?
The Defendant: Yes, ma’am.

The sentencing transcript reflects that the plea agreement offered by the State of Louisiana was to amend the bill of information from one count of second degree kidnapping, La. R.S. 14:44.1 and two counts of Felony Carnal Knowledge of a Juvenile, La. R.S. 14:80(A)(1) to three counts of Second Degree Battery, La. R.S. 14:4.1. There is no indication from the sentencing transcript that the State entered into any agreement related to the sentence to be imposed or defendant’s future filing of a Motion for Expungement.

I find no breach of a plea bargain agreement between the State of Louisiana and the defendant; therefore, there is no error in the trial court’s denial of the defendant’s Motion for Expungement. I would deny defendant’s writ application.

      . The proper method for seeking review of the denial of a motion for expungement is through an application for supervisory writs. State v. Gettridge, 13-1261 (La, 1/10/14), 131 So.3d 37.

      . Second degree battery is a crime of violence under La. R.S. 14:2:
      B. In this Code, “crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as “crimes of violence”:
      * * * *
      (6) Second degree battery.

      . La. C.Cr.P. art. 893 has since been amended. Those changes are not pertinent here.

      . See State v. Coleman, 42,953 (La.App. 2 Cir. 2/20/08), 977 So.2d 203, where the court held that the State could not complain about the trial court’s order granting the defendant’s motion for expungement because the State did not object to the sentence and, thus, acquiesced in the judgment,

      . I agree with the majority that the trial court’s February 26, 2016 judgment denying defendant’s Motion for Expungement is not an appealable judgment and as such should be converted to application for supervisory writs.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Mary Ann RIDDLE, Plaintiff-Appellant v. PREMIER PLAZA OF MONROE, L.L.C. and Monroe Symphony Orchestra, L.L.C., Defendant-Appellee
    No. 51,173-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017

      SEDRIC E. BANKS, Counsel for Appellant
    BARRY WAYNE DOWD, STEPHEN ADAM NORTH, Counsel for Appellee
    Before DREW, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

|! Mary Ann Riddle appeals a judgment by the Monroe City Court for the City of Monroe, Louisiana, dismissing her claims with prejudice. Riddle sought to annul a previous judgment by the same court in favor of the Monroe Symphony Orchestra and Premier Plaza of Monroe, LLC. For the following reasons, we reverse the trial court’s judgment and annul the initial judgment as prayed for by Riddle. Additionally, the matter is remanded for consideration of her claim for attorney fees pursuant to La. C.C.P. art. 2004.

Facts

Immediately at issue in this appeal is a judgment against Riddle pertaining to her petition to annul a previous judgment by the trial court. Thus, the facts related to that initial judgment are relevant to this appeal.

Originally, Riddle, self-described as “active in civic affairs, event planning and fund raising” was solicited to direct the major fundraising event of the Monroe Symphony Orchestra (“MSO”)-“Art With a View.” Although a written contract was prepared in April 2013 setting forth the precise terms of the agreement between Riddle and the MSO, it appears the contract was never executed by either party. Nonetheless, the record indicates that the parties proceeded accordingly, and the event was held. Riddle claims it was the most successful fundraiser in the MSO’s history. However, despite her success, Riddle maintains that the MSO failed to pay her, as mutually agreed, the final monthly stipend and car allowance or the 5% bonus of the net proceeds. Riddle filed suit against the MSO and Premier Plaza, LLC, claiming breach of contract. Initially, Riddle appeared at the trial court pro se.

hThe matter proceeded to trial presided over by Monroe City Court Judge Aisha Clark. Notably, several former or current MSO board members testified at that trial. Following the trial, judgment was rendered against Riddle and in favor of the MSO and Premier Plaza. A final judgment was signed on July 1, 2015, dismissing Riddle’s claims with prejudice (the “initial judgment”); however, soon after the initial judgment was signed, Riddle became aware that Judge Clark had served on the 2009-10 MSO board. Riddle claims that particular board had conceived of the fund-raising event.

On July 16, 2015, Riddle filed a petition to annul the trial court’s initial judgment under La. C.C.P. art. 2004. She claimed the trial court’s judgment had been obtained by an ill practice, because a mandatory ground of recusal existed under La. C.C.P. art. 151, which was undisclosed to her. Riddle urged that due process was denied as a result, and the breach of contract judgment should be annulled. She also prayed for the payment of all court costs and reasonable attorney fees as provided in La. C.C.P. art. 2004(C).

A hearing was fixed by the trial court. Riddle filed a motion to recuse Judge Clark, who then signed an order of self-recusal, noting “she must recuse herself from the hearing of this matter. In light of this conflict in this matter, the parties feel as though the court may not [be] able to preside fairly and impartially based on ... having been a member of the Monroe Symphony Orchestra Board[.]” Riddle also filed a timely petition for devolutive appeal of the initial judgment, but that order was never signed by |sthe trial court. The other Monroe City Court judges recused themselves from this matter, and an ad hoc judge was appointed to proceed.

Ultimately, the petition to annul judgment was tried, and judgment was entered against Riddle dismissing her claims with prejudice. It is this judgment that is on appeal by Riddle.

Discussion

On appeal, Riddle brings only one assignment of error, arguing that the trial court erred as a matter of law and abused its discretion when it failed to properly apply La. C.C.P. art. 2004 and dismissed with prejudice her petition to annul the initial judgment. Riddle specifically urges that ill practices under art. 2004 occur when the trial judge and the MSO failed to disclose that the judge served on the MSO board and personally knew board members who testified at the trial on behalf of the MSO. According to Riddle, Judge Clark, as a prior board member of the MSO, was “biased, prejudiced, or interested” in this breach of contract case against the MSO, and she had a mandatory duty to recuse herself. Riddle further submits that failure—by both Judge Clark and the MSO—to bring the trial judge’s relationship to the parties’ attention was an ill practice sufficient to warrant annulling the breach of contract judgment. Under the unique circumstances presented where the judge eventually self-recused after the trial, we agree.

Louisiana C.C.P. art. 2004 provides that “[a] final judgment obtained by fraud or ill practices may be annulled.” Article 2004 is not limited to cases of actual fraud or intentional wrongdoing, but encompasses situations in which a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. Yellowbird Investments, L.L.C. v. Barber, 46,977 (La. App. 2d Cir. 3/14/12), 87 So.3d 970, 974, writ not cons., 2012-0866 (La. 06/01/12), 90 So.3d 422, citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La. 1983). When reviewing a trial court decision on a petition to nullify pursuant to La. C.C.P. art. 2004, the “issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court’s conclusions were reasonable.” Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La. 10/16/01), 800 So.2d 762, 767.

A party seeking to annul a judgment under La. C.C.P. art. 2004 must show both that the challenged judgment resulted from a deprivation of a legal right and that its enforcement would be unconscionable and inequitable. Midland Funding, LLC. v. Cady, 47,854 (La.App. 2d Cir. 2/27/13), 110 So.3d 656, 659, citing Wright v. Louisiana Power & Light, 2006-1181 (La. 03/09/07), 951 So.2d 1058 and Straughter v. Hodnett, 42,827 (La.App. 2d Cir. 01/9/08), 975 So.2d 81, writ denied, 2008-0573 (La. 05/02/08), 979 So.2d 1286.

Specifically, La. C.C.P. art. 2004 states:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

Louisiana C.C.P. art, 151 provides the grounds upon which a judge shall be recused from a matter. Specifically, La. C.C.P. 151 provides, in pertinent part:

A. A judge of any court, trial or appellate, shall be recused when he ...
|fi(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

The grounds for recusal enumerated in art. 151 are exclusive and do not include a “substantial appearance of the possibility of bias” or even a “mere appearance of impropriety” as causes for removing a judge from presiding over a given action. Slaughter v. Bd. of Sup’rs of S. Univ. & Agr. & Mech. Coll., 2010-1114 (La.App. 1 Cir. 08/02/11), 76 So.3d 465, 471, writ denied, 2011-2112 (La. 01/13/12), 77 So.3d 970. Moreover, a judge is presumed to be impartial. The party seeking to recuse cannot merely allege lack of impartiality; he must present some factual basis. Further, the bias, prejudice, or personal interest alleged must be of a substantial nature and based on more than conclusory allegations. Covington v. McNeese State Univ., 2010-0250 (La. 04/05/10), 32 So.3d 223,225.

Here, the question is whether the initial judgment should be annulled for ill practices, those being that Judge Clark, who had a previous connection with the defendants, did not timely recuse herself from the matter. In rejecting Riddle’s claims in her petition to annul, the trial court reasoned that Riddle knew or should have known that Judge Clark was an MSO board member, and Riddle was not deprived of her right to seek the recusal of Judge Clark prior to trial. However, we do not believe, considering these facts, that Riddle was in the best position to recognize a potential conflict that would merit recusal of Judge Clark. Instead, when initially assigned the case at the trial court, Judge Clark was in a much better position to recognize her involvement as a board member with the MSO [fithan Riddle, who testified that she never knew Judge Clark despite serving on the board at the same time.

Further, recognizing that the jurisprudence places a heavy burden on Riddle for her claim to annul the initial judgment, we note that Judge Clark’s “personal interest” in the MSO was clearly of a substantial nature. Serving as a board member for any organization requires engaged activity, indicating an interest of a substantial nature, not a casual fancy. Riddle did not allege that Judge Clark simply attended the fundraiser event or was a mere lover of the arts. It was a stipulated fact that Judge Clark served on the MSO board. Further, the evidence showed that Judge Clark, as a member of the board, actively participated in the governing of the body. In fact, the December 1, 2009 minutes indicate that Judge Clark, acting as an attorney at the time, actually negotiated a rental contract between the City of Monroe and the MSO, which contract she reportedly was to present before the board. In taking that action as a board member/lawyer, she undeniably strived to obtain the best terms she could for the MSO, undoubtedly having a personal interest of a substantial nature that the MSO’s best interest was served.

Riddle concedes that she did sit on the MSO’s board at the same time as Judge Clark, which is evidenced by board meeting minutes showing simultaneous attendance by Riddle and Judge Clark in 2009. However, Riddle points out that there were 44 members of the board, and she did not know Judge Clark, or that Judge Clark was a practicing attorney at the time. As stated, in this instance, Judge Clark was in a better position to recognize “the conflict,” especially considering the witnesses called in the initial trial. Notably, the minutes introduced at trial indicate that Marilyn Koepke was board president at the time when Judge Clark was negotiating the MSO |7rental contract with the city, and Ms. Koepke testified at the breach of contract trial. So considering, it was unreasonable for the trial court to place that burden on Riddle.

Notably, a finding of ill practices does not necessitate a determination of intent, and in no way do we conclude that Judge Clark intentionally failed to recuse herself from this matter. But considering the particular facts of this matter, Riddle did allege sufficient facts to show that Judge Clark indeed had a personal interest in the MSO, as evidenced by her previous involvement with the organization, and that interest was of a substantial nature. We further observe Judge Clark ultimately decided to self-recuse herself from hearing the petition to annul, in which order she referred to “this conflict in this matter.” Thus, Judge Clark’s failure to recuse herself earlier resulted in an unintentional ill practice, and so considering, the trial court abused its discretion in failing to annul the initial judgment in favor of the MSO and Premier Plaza of Monroe, LLC.

Attorney Fees

As stated, La. C.C.P. art. 2004(C) provides that reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on grounds of fraud or ill practice may be awarded. However, regardless of the statutory authorization for an award of attorney fees, courts should examine certain factors to determine the reasonableness of the fees. Rivet v. State, Dep’t. of Transp. & Dev., 96-0145 (La. 09/05/96), 680 So.2d 1154, 1161. Factors to be considered include the ultimate result obtained; the responsibility incurred; the importance of the litigation; the amount of money involved; the extent and character of the work performed; the legal knowledge, attainment, and skill of the attorneys; the number of appearances | ^involved; the intricacies of the facts involved; the diligence and skill of counsel; and the court’s own knowledge. Id.; see also, Ezzell v. Miranne, 2015-471 (La. App. 5th Cir. 01/27/16), 185 So.3d 171.

Here, although Riddle prayed for attorney fees pursuant to art. 2004, because she did not prevail at the trial court, there was no evidence of or any consideration pertaining to those fees. Accordingly, this matter is remanded for a determination regarding Riddle’s entitlement to an attorney fee award. Sicard v. Sicard, 2011-423 (La. App. 5th Cir. 12/28/11), 82 So.3d 565, 569.

Conclusion

For the foregoing reasons, the judgment of the Monroe City Court is reversed, and the initial judgment in favor of Premier Plaza of Monroe, LLC and the Monroe Symphony Orchestra, LLC is annulled. The matter is also remanded in order for the trial court to make a determination whether attorney fees are due Riddle pursuant to La. C.C.P. art. 2004. All costs of this proceeding are to be paid by the ap-pellees.

REVERSED AND REMANDED.

      . The MSO stipulated that Judge Clark served on its board between 2009-11. At the time she served on the board, Judge Clark was not a judge, but she practiced law in Monroe. She was elected in 2012.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Voltaire SULLIVAN, Appellant
    No. 51,180-KA, No. 51,181-KA
    Court of Appeal of Louisiana, Second Circuit.
    February 15, 2017

      LOUISIANA APPELLATE PROJECT, By: Chad M. Ikerd, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, HUGO HOLLAND, JOHN M. LAWRENCE, Assistant District Attorney, Counsel for Appellee
    Before WILLIAMS, LOLLEY, and GARRETT, JJ.
   GARRETT, J.

JjThe defendant, Voltaire Sullivan, was convicted of three counts of distribution of cocaine and one count of distribution of methamphetamine. He was later adjudicated and sentenced as a habitual offender to serve 60 years at hard labor on each count, to be served concurrently, without benefit of parole, probation, or suspension of sentence. He now appeals his convictions and sentences. For the following reasons, we affirm the convictions. We amend the sentences and affirm as amended.

FACTS

A confidential informant (“Cl”), working with the Minden Police Department, made three controlled purchases of illegal drugs from Sullivan. On May 24, 2013, the Cl purchased cocaine and what was originally thought to be Ecstasy (“MDMA”), but which was later determined to be methamphetamine. On May 28 and June 4, 2013, the Cl made more purchases of cocaine. Sullivan was arrested and charged by bill of information with three counts of distribution of cocaine and one count of distribution of MDMA, which was later amended to distribution of methamphetamine.

Sullivan was tried by a jury and, on March 25, 2015, was found guilty as charged on all four counts. Sullivan was originally sentenced on June 29, 2015. In December 2015, he was charged as a habitual offender. The bill of information alleged that Sullivan had four prior felony convictions, including possession of marijuana, third offense; distribution of cocaine; and two separate convictions for possession of cocaine. After a hearing, the trial court found Sullivan to be a fourth felony offender, vacated his prior sentences, and sentenced him to serve 60 years at hard labor, without benefit | aof parole, probation, or suspension of sentence, for each of his underlying convictions in this matter. The sentences were to be served concurrently.

Sullivan appealed, arguing that there was insufficient evidence to support his convictions, the trial court erred in allowing the state to amend the bill of information, and the 60-year hard labor sentences were constitutionally excessive for a nonviolent offender.

SUFFICIENCY OF THE EVIDENCE

Sullivan asserts the state failed to sufficiently prove he was guilty of distribution of narcotics. He claims that videos submitted by the state as evidence do not show that he distributed drugs. He also urges that the handling of the evidence by the police after each buy was questionable because the narcotics were stored in a police captain’s locker for months before being turned over to officials for testing. These arguments are without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir. 2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hül, 42,025 (La.App. 2d Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529; State v. Randle, 49,952 (La.App. 2d Cir. 6/24/15), 166 So.3d 465; State v. Casaday, 49,679 (La.App. 2d Cir. 2/27/15), 162 So.3d 578, writ denied, 2015-0607 (La. 2/5/16), 186 So.3d 1162.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such eases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App. 2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App. 2d Cir. 8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La. 3/7/08), 977 So.2d 896; State v. Randle, supra; State v. Robinson, 50,643 (La.App. 2d Cir. 6/22/16), 197 So.3d 717.

UThe testimony of a paid confidential informant goes to the weight of the evidence, not its sufficiency. See State v. Nelson, 46,915 (La.App. 2d Cir. 2/29/12), 86 So.3d 747.

To present sufficient evidence of distribution of a controlled dangerous substance (“CDS”), the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Anderson, 46,724 (La.App. 2d Cir. 11/2/11), 78 So.3d 176.

Discussion

Captain Dan Weaver of the Minden Police Department testified as an expert in narcotics and undercover drug purchases. Weaver and Captain Marvin Garrett were in charge of investigating Sullivan, who was known to the officers. They met with a Cl who had been referred to them by a narcotics officer with another law enforcement agency. Weaver and Garrett determined that the Cl could buy drugs from Sullivan.

On May 24, 2013, the Cl and his vehicle were searched to establish that the Cl did not have any drugs or money with him. He was given $500 with which to make a drug purchase, was outfitted with video surveillance equipment, and was instructed to come straight back to the officers after completing the transaction. A video of the transaction that occurred that day was played for the jury. It shows the Cl driving up to a location, walking up to a house, going inside, and discussing drugs with Sullivan. The Cl returned to the officers with $250 in cocaine and some pills because Sullivan did not have $500 in cocaine.

|BOn May 28, 2013, the officers followed the same procedure of searching the Cl and his vehicle, and outfitting him with video surveillance equipment. The second recording, which was played for the jury, shows the Cl meeting with Weaver and Garrett and being given $500 in cash and instructed to buy cocaine from Sullivan. The Cl called Sullivan, who said he had cocaine for sale. The Cl drove to Sullivan’s house, where he was let into the house by Sullivan, and a quick transaction occurred. The Cl returned to his vehicle and showed on camera the drugs purchased from the defendant. The Cl then drove back to Weaver and Garrett and turned the drugs over to them.

On June 4, 2013, the same procedure was followed, and the Cl again purchased cocaine from Sullivan. The video of that transaction was played for the jury. The third recording shows the Cl being given $500 by Weaver and Garrett to purchase cocaine from Sullivan. The recording shows the Cl going up to the same house and being let in by Sullivan. Another quick transaction occurred and the Cl prepared to leave the house. He conversed with Sullivan briefly and Sullivan made comments about the quantity of drug business he engaged in. The Cl showed the cocaine on camera, returned to Weaver and Garrett, and turned the drugs over to them.

At trial, Weaver identified the drugs purchased by the Cl. He stated that the drugs were locked in a file cabinet in his office from the date of the transactions until early August 2013. He said that he had the only key. Weaver kept the drugs locked in his office to protect the identity of the Cl and to allow the Cl to make several purchases before his identity was revealed by court proceedings. Weaver testified that officers try to get several buys from one suspect during an investigation. After that point, the | (¡drugs were turned over to Lieutenant Ronald Payton, the evidence supervisor with the Minden Police Department. Payton testified that he received the drugs from Weaver on August 6, 2013, and transported them to the North Louisiana Criminalistics Laboratory on August 8, 2013, where they were received and logged in by Carla Pettis. She testified that she received the drugs from Payton.

The drugs were analyzed by Alana Brauer of the North Louisiana Criminalis-tics Laboratory, who testified at trial that they were cocaine and methamphetamine, not MDMA.

The Cl testified that he volunteered to make undercover drug purchases, and a friend placed him in contact with Weaver and Garrett. He was paid $300 for his participation in each transaction and did not act as a Cl in order to receive a reduction or dismissal of any criminal charges. He admitted to having prior convictions for possession of a Schedule II CDS and disturbing the peace. The Cl testified that he viewed the videos shown in court and he was depicted in the recordings. He identified Sullivan in the courtroom and testified he was the person who sold drugs to him on the videos. The Cl said he specifically tried to show the drugs on the video,

The evidence presented at trial was sufficient to prove that Sullivan distributed cocaine and methamphetamine, as charged in the bill of information. Captain Weaver testified regarding the participation of the Cl in the process, including searching the Cl and his vehicle prior to the transactions, outfitting him with surveillance equipment, supplying him with money to purchase drugs, recording the transactions, and receiving and securing the drugs after the transactions. Even though Sullivan is not clearly shown transferring drugs on the video recordings, he is seen and heard on |7the recordings. The Cl positively identified Sullivan as the person who sold him the drugs.

Captain Weaver identified the drugs introduced into evidence as those purchased from Sullivan by the Cl. He also testified that he kept the drugs locked in a cabinet in his office until the investigation was concluded and then handed the drugs over to Payton. The drugs were transferred to the North Louisiana Criminalistics Laboratory for analysis. The record does not show that the evidence was mishandled or that the drags analyzed were not the same drags sold by Sullivan to the CI.

Brauer testified that the chemical analysis of the drags showed that they were cocaine and methamphetamine.

This evidence was sufficient to prove that Sullivan delivered the cocaine and methamphetamine at issue in this case to the CI, who was the intended recipient; he knew he was transferring CDS; and that the drugs were, in fact, cocaine and methamphetamine. The evidence submitted to the jury was sufficient to prove beyond a reasonable doubt that Sullivan was guilty as charged.

AMENDMENT OF BILL OF INFORMATION

Sullivan argues that the trial court erred in allowing the state to substantially amend the bill of information to change count four from distribution of a Schedule I CDS, namely, MDMA, to distribution of a Schedule II CDS, namely, methamphetamine. This argument is without merit.

| xLegal Principles

La. C. Cr. P. art. 488 states:

When there is a variance between the allegations of an indictment or bill of particulars which state the particulars of the offense, and the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence.

La. C. Cr. P. art. 489 provides, in pertinent part:

If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution.

Discussion

Sullivan was originally charged in count four of the bill of information with distribution of a Schedule I CDS, MDMA. Brauer from the North Louisiana Crimi-nalistics Laboratory testified that the pills purchased by the CI from Sullivan were actually methamphetamine. After a discussion in chambers, the state moved to amend the bill of information to charge Sullivan with distribution of a Schedule II CDS, methamphetamine, arguing that the amendment was proper under La. C. Cr. P. arts. 486-489, to conform the bill of information to the evidence adduced at trial. Sullivan’s counsel objected, but stated that the amendment did not in any way influence the strategy of how to defend the case. Sullivan’s counsel also noted that the amendment benefitted Sullivan because the sentencing range for distribution of methamphetamine was lower than that for distribution of MDMA. The attorney stated, “So with that I would want you to note my objection, but I don’t think I’m harmed and I do think that it’s an allowable change.”

[ 9The trial court noted that the amendment was not prejudicial to Sullivan and that he was aware from the beginning that he was accused of distribution of CDS in the form of pills. The court pointed out that, in light of the amendment, defense counsel did not ask for a continuance to prepare and the amendment did not affect the defense of the charges. The court allowed the amendment. The jury was informed of the amendment before retiring for deliberations and was charged on the correct law.

Sullivan argues that the trial court erred in allowing the amendment because it was substantive and was a violation of his constitutional rights to be informed of the charges against him. He points out that he was originally charged with distribution of one type of CDS and the bill of information was amended to charge him with the distribution of another type of CDS, with a different penalty. He urges that the identity of the CDS is an essential element of the crime of distribution.

Sullivan contends that, under State v. Chaisson, 2011-1135 (La.App. 3d Cir. 6/6/12), 91 So.3d 1224, a court cannot simply fix the state’s failure to meet its burden of proof by amending a bill of information to make the evidence fit a crime. In Chaisson, the defendant was originally charged with distribution of hydrocodone under Schedule III. At trial, the state erroneously amended the bill of information to charge distribution of hydrocodone, Schedule II. As explained in Chaisson:

Hydrocodone is found in both Schedule II and Schedule III as defined in La. R.S. 40:964. Schedule II lists hydroco-done, and Schedule III lists hydroco-done when found in certain amounts and/or mixed with other nonnarcotic ingredients. The penalties for Schedule II and Schedule III violations involving hy-drocodone differ greatly.

|inThe expert from the crime lab who analyzed the drugs in Chaisson testified that they were a Schedule III CDS. The defendant was found guilty by a jury of distribution of Schedule II hydrocodone and argued on appeal that there was insufficient evidence to support a conviction for distribution of Schedule II hydrocodone. The third circuit agreed and reversed the conviction.

Chaisson is distinguishable from the facts here. In Chaisson, the defendant was convicted of distribution of Schedule II hydrocodone, when the evidence showed that she distributed Schedule III hydroco-done. The conviction and the amended bill of information were incongruous. In the present matter, the bill of information was properly amended at trial and the evidence supported the charge contained in the amended bill of information.

La. C. Cr. P. art 488 clearly contemplates the circumstances here, in which count four of the bill of information was based upon the belief that the pills sold to the Cl by Sullivan were MDMA, but the laboratory analysis and testimony at trial showed that they were methamphetamine. The trial court allowed an amendment to correct a variance between the bill of information and the evidence offered in support thereof. Under La. C. Cr. P. art. 489, Sullivan could have requested a continuance if he was prejudiced in his defense. Sullivan’s counsel did not request a continuance, specifically stated that the defense was not prejudiced by the amendment, and noted that the amendment actually bene-fitted Sullivan by reducing his potential sentence. Under these circumstances, the trial court did not err in allowing the amendment.

JyEXCESSIVE SENTENCES

Sullivan argues that the 60-year habitual offender sentences in this case are constitutionally excessive. He contends that the predicate offenses for his habitual offender adjudications were all nonviolent, that he has a drug addiction, and. that, because he is 37 years old, the sentences amount to life sentences for low-level drug sales. These arguments are without merit.

Legal Principles

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C, Gr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Shipp, 46,715 (La.App. 2d Cir. 11/2/11), 78 So.3d 805. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981); State v. Mandigo, 48,801 (La.App. 2d Cir. 2/26/14), 136 So.3d 292, writ denied, 2014-0630 (La. 10/24/14), 151 So.3d 600. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jackson, 48,534 (La,App. 2d Cir. 1/15/14), 130 So.3d 993.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a [ ^purposeless and needless infliction of pain and suffering. State v, Dorthey, 623 So.2d 1276 (La. 1993); State v, Mandigo, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Jackson, supra; State v. Hollins, 50,069 (La.App. 2d Cir. 8/12/15), 174 So.3d 710.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Mandigo, supra. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson, supra; State v. Hollins, supra.

Discussion

Following his convictions, Sullivan appeared before the trial court for sentencing. The trial court had ordered a presen-tence investigation (“PSI”) report and noted for the record the portions of Sullivan’s prior criminal history considered in sentencing. He had a 1996 conviction for possession of cocaine and was given a suspended sentence, but his probation was revoked. In 1997, Sullivan pled guilty to attempted possession of marijuana with intent to distribute. In 2000, Sullivan pled guilty to one count of distribution of cocaine. He served six years and was paroled, but his parole was revoked. In 2001, he pled guilty to possession of marijuana and possession of drug paraphernalia. Sullivan was convicted of possession of cocaine in 2008, and was sentenced to five years at hard labor. His parole was revoked. In June 2009, Sullivan was convicted of possession of marijuana, third offense, sentenced to six years at hard labor, and his parole h.qwas revoked. The court noted that, in the past, Sullivan had not responded favorably to probation or parole.

Regarding social history, the court noted that Sullivan was expelled from high school for possession of cocaine. Sullivan had never been married, but claimed to have two children. One was no longer a minor. He had been ordered to pay child support for the younger child.

The trial court determined that any sentence less than that imposed would deprecate the seriousness of the offenses. On counts one and four, Sullivan was ordered to serve 15 years at hard labor, with the sentences to run concurrently. On counts two and three, Sullivan was ordered to serve 20 years at hard labor, with those sentences to be served concurrently with each other, but consecutively with counts one and four. On counts one, two, and three, the first two years of the sentences were to be served without benefit of parole, probation, or suspension of sentence.

On December 8, 2015, Sullivan was charged as a habitual offender. The bill of information noted that Sullivan had been convicted of three counts of distribution of cocaine and one count of distribution of methamphetamine in this matter. He also had prior convictions for possession of marijuana, third offense; possession of cocaine; distribution of cocaine; and another conviction for possession of cocaine. Sullivan appeared before the same trial court for a hearing on April 25, 2016. Based upon the evidence adduced, the trial court adjudicated him to be a fourth felony offender under La. R.S. 15:529.1(4)(a). Under that statute, his sentencing exposure was 30 years at hard labor to life imprisonment. His prior sentences were vacated.

| uThe trial court noted that Sullivan had a drug addiction, but had become a drug distributor. The court stated that Sullivan’s criminal history showed that he had been distributing drugs for almost 20 years. Sullivan was sentenced to serve 60 years at hard labor on all four counts, without benefit of parole, probation or suspension of sentence, with the sentences to be served concurrently.

On April 28, 2016, the trial court also filed written reasons for sentencing. The court noted that Sullivan was adjudicated a fourth felony offender. His latest conviction was actually a fifth felony offense and each conviction represented a serious felony. Sullivan’s criminal history included distribution convictions, which were more serious than possession convictions. The court noted Sullivan’s lengthy criminal history, which demonstrated a disrespect for the law and a lack of desire to reform.

Our review of the record discloses no abuse of the trial court’s discretion regarding the length of the sentences imposed. The sentences imposed were within statutory limits. The trial court considered the aggravating and mitigating circumstances, Sullivan’s personal history, the seriousness of the offenses, and the likelihood of rehabilitation. The record demonstrated that Sullivan has a lengthy criminal history involving drug offenses and distribution of drugs. He has been given numerous opportunities to reform and has failed to do so. The 60-year sentences are not out of proportion to the seriousness of the offenses. The trial court did not err in ordering Sullivan, as a habitual offender, to serve 60 years at hard labor for each of the offenses, to be served concurrently. The sentences do not shock the sense of justice.

J^ERROR PATENT

We note as error patent on the face of the record that the trial court erred in imposing the habitual offender sentences without benefit of parole.

Sullivan was convicted of three counts of distribution of cocaine. La. R.S. 40:967 provides, in pertinent part:

A. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To ... distribute. . a controlled dangerous substance or controlled substance analogue classified in Schedule IIC-]
B. Except as provided in Subsection F, any person who violates Subsection A with respect to:
(4)(b) Distribution, [of] cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

Sullivan was also convicted of one count of distribution of methamphetamine. La. R.S. 40:967 provides in pertinent part:

B. Except as provided in Subsection F, any person who violates Subsection A with respect to:
(1) A substance classified in Schedule II which is ... methamphetamine ... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars. Regarding sentencing as a habitual offender, La. R.S.

15:529.1(A)(4)(a) states:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within | tfithis state, upon conviction of said felony, shall be punished as follows:
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life[.]

La. R.S. 15:529.1(G) states that any sentence imposed under the habitual offender provisions shall be at hard labor without benefit of probation or suspension of sentence. Regarding the imposition of a habitual offender sentence without benefit of parole, the conditions imposed on the sentence are those called for in the sentencing provisions for the underlying offense. State v. Thurman, 46,391 (La.App. 2d Cir. 6/22/11), 71 So.3d 468, writ denied, 2011-1868 (La. 2/3/12), 79 So.3d 1025.

As observed in State v. Hampton, 50,561 (La.App. 2d Cir. 5/18/16), 195 So.3d 548:

Although La. R.S. 15:574.4(A)(1) states that “[a] person convicted of a third or subsequent felony offense shall not be eligible for parole,” the Louisiana Supreme Court has consistently held that, when a defendant is sentenced under a statute that contains no prohibition of parole, the district court must sentence the defendant to a term that does not include such a prohibition because parole eligibility under La. R.S. 15:574.4 is to be determined by the Department of Corrections. St. Amant v. 19th Judicial District Court, 94-0567 (La. 9/3/96), 678 So.2d 536. Defendant’s parole eligibility as a third or subsequent habitual offender under La. R.S. 15:574.4 is a determination for the Department of Corrections to make.

For the distribution of cocaine convictions, as a habitual offender, the trial court could have sentenced Sullivan to 30 years to life imprisonment, with the first two years to be served without benefit of parole. For the distribution of methamphetamine conviction, the trial court could have | ^sentenced Sullivan to 30 years to life imprisonment. There is no requirement that any portion of the sentence for distribution of methamphetamine be served without benefit of parole. Sullivan was sentenced to serve 60 years at hard labor on all four convictions, with the entirety of the sentences to be served without benefit of parole, probation, or suspension of sentence. The trial court erred in ordering that the entire sentences be served without benefit of parole. We amend the sentences to provide that only the first two years of the 60-year sentences for distribution of cocaine be served without benefit of parole. Regarding the 60-year sentence for distribution of methamphetamine, we delete the requirement that the sentence be served without benefit of parole. As amended, the sentences are affirmed.

CONCLUSION

For the reasons stated above, we affirm the convictions of the defendant, Voltaire Sullivan, for three counts of distribution of cocaine and one count of distribution of methamphetamine, as well as his adjudication as a fourth felony offender. We affirm the length of the habitual offender sentences, to be served concurrently. We amend the sentences to provide that the first two years of the 60-year sentences for distribution of cocaine be served without benefit of parole. We delete the requirement that the 60-year sentence for distribution of methamphetamine be served without benefit of parole. As amended, the sentences are affirmed.

CONVICTIONS AFFIRMED. SENTENCES AMENDED AND AFFIRMED AS AMENDED.

      . We note that Weaver’s procedure of locking CDS in his office has been followed in other cases. See State v. Kennon, 50,511 (La.App. 2d Cir. 4/13/16), 194 So.3d 661.

      . Sullivan argues in his assignment of error that the sentences were to be served consecutively. In fact, the sentences were ordered to be served concurrently.