author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Mark PRIEST
    NO. 18-KA-518
    Court of Appeal of Louisiana, Fifth Circuit.
    February 6, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Andrea F. Long, Matthew Whitworth
    COUNSEL FOR DEFENDANT/APPELLANT, Mark Priest, Cynthia K. Meyer
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHEHARDY, C.J.

On appeal, defendant challenges the sufficiency of the evidence used to convict him, the trial court's denial of his verbal motion to continue, and the excessiveness of his sentence. For the following reasons, we affirm defendant's conviction, vacate defendant's sentence as unconstitutionally excessive, and remand for resentencing.

Procedural History

On August 19, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Mark Priest, with one count of possession of over four hundred grams of methamphetamine, in violation of La. R.S. 40:967(F). Trial commenced on May 14, 2018. At the conclusion of the two-day bench trial, the trial judge found defendant guilty as charged. On May 24, 2018, the trial court sentenced defendant to thirty years imprisonment at hard labor, imposed a fine of $ 250,000.00, and granted defendant's motion for appeal.

Facts

Detective Kevin Treigle of the Kenner Police Department ("KPD") testified that, in 2016, he was assigned to work with the Drug Enforcement Agency, pursuant to the federal High Intensity Drug Trafficking Area ("HIDTA") program, on a task force investigating narcotics trafficking in Texas and Louisiana. Based on information obtained from a confidential informant that was corroborated through further surveillance, the task force determined that it was highly probable that Mark Priest and two other individuals were transporting a large quantity of methamphetamine through Jefferson Parish on June 27 and/or June 28, 2016.

On the evening of June 27, 2016, Detective Treigle observed Mark Priest and two men, later identified as Gabriel De La Cruz and David Deleon, meet a man known only as "Richard" at the Laketown Bar and Grill in Kenner. Detective Treigle witnessed De La Cruz speaking to the unknown man as Priest and Deleon stood nearby. Priest, Deleon, and De La Cruz left in a vehicle together.

Later that night, the task force observed Priest leaving a hotel near the Treasure Chest Casino and entering the casino with Deleon. By that time, officers had learned that there was an outstanding arrest warrant for Priest out of Harris County, Texas. Detective Treigle, working with Detective Keenan Jackson of the KPD located Priest, escorted Priest and Deleon to the casino's security office, and arrested Priest (hereinafter "defendant") on the outstanding warrant.

Pursuant to a search incident to defendant's lawful arrest, the officers seized three black, cylindrical objects, wrapped in electrical tape, from the front waistband of defendant's underpants and a small plastic bag from defendant's sock. Defendant was advised of his rights and elected not to speak to officers at that time.

After defendant's arrest, Detective Jackson took custody of the black 'cylinders' and the plastic bag. Upon removing the electrical tape from each cylinder, the officers discovered a cellophane wrapper containing almost six hundred grams of crystalline material. Further, the plastic bag recovered from defendant's sock contained about four grams of crystalline material. The crystalline substance found in each package field-tested positive for methamphetamine.

At trial, Detective Jackson identified his handwriting on the seal of the evidence bag containing the methamphetamine recovered from defendant's person and the seal of the evidence bag containing the cellophane packaging and black electrical tape from each cylinder. Further, he identified his signature on the seal of the evidence bag containing the small plastic bag recovered from defendant's sock. Detective Jackson testified that, after he logged the evidence, he placed it in an evidence safe until he transferred it to the evidence custodian.

Michael Cole, a forensic chemist for the Jefferson Parish Sheriff's Office ("JPSO") Crime Lab who was accepted as an expert in forensic analysis of controlled dangerous substances, testified that he analyzed the crystalline substance seized from defendant and concluded that it contained methamphetamine. Mr. Cole further testified that the crystalline substance found in the three cylindrical objects seized from defendant's underpants had a total net weight of approximately five hundred eight-two grams, and that the methamphetamine found in defendant's sock had a total gross weight of approximately three grams.

At trial, after waiving his Fifth Amendment right to remain silent, defendant testified that he met De La Cruz through a friend while he was living in Texas. According to defendant, De La Cruz, when they first met, threatened defendant with a gun. Defendant testified that, on June 26, 2016, defendant agreed, under duress, to accompany De La Cruz from Texas to New Orleans to show him around the city. During the ride from Texas to New Orleans, defendant claimed he told De La Cruz that he did not want to be part of any drug deal. Once in Louisiana, the men traveled to Slidell where they met up with Deleon.

According to defendant, the next day, the trio met a fourth man, named Richard, at a bar and grill. Defendant then left with Deleon in a truck driven by De La Cruz, who pulled over into a parking lot and gave defendant two packages wrapped in electrical tape, which he placed in his pants, and a third package which he placed in his sock. Defendant testified that he was nervous and told the men he did not want anything "to do with this," but did as he was instructed.

Defendant recalled that, later that evening, he and Deleon went into the bar at the Treasure Chest Casino. Defendant noted that Deleon was on his phone the entire time they were in the casino. Defendant testified that he "knew there was something odd" so he dialed 9-1-1 and then hung up. He further stated that he "knew the cops were following" them because the same taxicab that he observed at the bar and grill, later stopped for Deleon and him at a Wendy's restaurant. Defendant testified that, after his arrest, he discovered evidence that Deleon was working for law enforcement.

Discussion

When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. ; See also State v. Nguyen , 05-569 (La. App. 5 Cir. 2/3/06), 924 So.2d 258, 262.

Thus, we will address the sufficiency of the evidence, which defendant raises in his second assignment of error before his other assignments. Specifically, defendant argues that the evidence is insufficient to support his conviction because the State failed to establish the chain of custody regarding the methamphetamine allegedly recovered from his person. He maintains the documents from the JPSO Crime Lab show the evidence was received from "C. Ellis," but the KPD chain of custody log does not show the evidence was signed out by "C. Ellis."

The State responds that it established identification of the narcotics and related evidence in this case in a manner sufficient to prove beyond a reasonable doubt that defendant possessed the contraband that was seized from his person, tested, and introduced at trial as evidence against him.

The standard of review for determining the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores , 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122.

Defendant was convicted of possession of over four hundred grams of methamphetamine, in violation of La. R.S. 40:967(F). On appeal, defendant argues there is no evidence to prove beyond a reasonable doubt who had custody of the narcotics seized from his person on June 28, 2016, until the time the narcotics were delivered to the JPSO Crime Lab on August 16, 2016. He notes that the last entry on the KPD chain of custody log is dated August 12, 2016, and that the evidence was not received by the JPSO Crime Lab until August 16, 2016.

Defendant further submits that the JPSO Crime Lab log indicates the evidence was received from "C. Ellis" of the KPD; however, the KPD log does not indicate that the evidence was signed out by "C. Ellis." Additionally, defendant maintains that according to Detective Jackson, the weight of the cylindrical objects seized from defendant's mid-section weighed five hundred ninety-seven and ½ grams and that the weight of the bag seized from defendant's sock was four grams; however, according to defendant, Mr. Cole testified that the cylindrical objects he tested weighed five hundred eighty-two grams and three grams respectively. Accordingly, the combination of the whereabouts of the evidence from August 12, 2016 and August 16, 2016, the omission of the signing out of the evidence by "C. Ellis," and the alleged discrepancy in the weight of the evidence, leads defendant to conclude that reasonable doubt exists as to whether the evidence seized from defendant was the same evidence tested by Mr. Cole.

First, we find that defendant waived any chain of custody argument with regard to the methamphetamine found in his sock as it was admitted into evidence without objection by defendant at trial. Under La. C.Cr.P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Herrod , 412 So.2d 564, 566 (La. 1982) ; State v. Parks , 07-655 (La. App. 5 Cir. 1/22/08), 977 So.2d 1015, 1027, writ denied , 08-0495 (La. 12/19/08), 996 So.2d 1126. The failure to object to the introduction of evidence at the time it is offered operates as a waiver of any complaint on appeal. La. C.Cr.P. art. 841 ; State v. Kinchen , 342 So.2d 174 (La. 1977).

Additionally, defendant has waived any argument regarding chain of custody with respect to the alleged weight discrepancy between the cylindrical objects containing methamphetamine. The only objection lodged by defendant at trial as to chain of custody was Detective Jackson's alleged failure to contemporaneously identify the three cylinders when they were seized at the scene. The failure to object to the introduction of evidence at the time it is offered operates as a waiver of any complaint on appeal. La. C.Cr.P. art. 841 ; State v. Kinchen, supra.

Thus, defendant's only remaining argument regarding sufficiency is that the State failed to establish the chain of custody with respect to the methamphetamine in the three cylinders seized from defendant due to a purported gap in the custody logs between KPD and the JPSO Crime Lab. As previously noted, when issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt.

When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot. Hearold, supra . On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. Hearold, supra .

If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson , 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). Thus, we must determine whether the entirety of the evidence, both admissible and inadmissible, was sufficient to support defendant's conviction for possession of methamphetamine over four hundred grams.

Here, the evidence established that defendant was arrested in Jefferson Parish pursuant to an outstanding warrant for his arrest from Texas. Pursuant to defendant's arrest, law enforcement officers seized almost six hundred grams of methamphetamine from defendant's person. Thus, we find that the evidence presented was sufficient to support his conviction under the Jackson standard.

However, in accordance with Hearold, supra , the focus of the inquiry now shifts to defendant's allegation that the methamphetamine was improperly admitted at trial due to a lack of proper chain of custody, and if improperly admitted, the consequences, if any, such admission may have on defendant's conviction.

Before it can be admitted at trial, demonstrative evidence must be properly identified. La. C.E. art. 901. This identification may be visual (i.e., by testimony at the trial that the object exhibited is the one related to the case) or it may be by chain of custody (i.e., by establishing the custody of the object from the time it was seized to the time it was offered in evidence). State v. Cosey , 97-2020 (La. 11/28/00), 779 So.2d 675, 678, cert. denied , 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001) ; State v. Sweeney , 443 So.2d 522, 528 (La. 1983) ; State v. Brooks , 01-864 (La. App. 5 Cir. 1/29/02), 807 So.2d 1090, 1099.

Evidence as to custody does not have to eliminate all possibility that the object has been altered; rather, for admission, it suffices that it is more probable than not that the object is the one connected to the case. Sweeney, supra ; State v. Addison , 03-1421 (La. App. 5 Cir. 3/30/04), 871 So.2d 536, 551, writ denied , 04-1291 (La. 10/29/04), 885 So.2d 584. A defect in the chain of custody goes to the weight of the evidence rather than its admissibility. State v. Ferguson , 09-1422 (La. App. 4 Cir. 12/15/10), 54 So.3d 152, 170, writ denied , 11-0135 (La. 6/3/11), 63 So.3d 1008. A trial court is vested with great discretion in determining whether a party has laid a proper foundation for the introduction of evidence. Id.

Here, at trial, the State established that Detective Treigle in Detective Jackson's presence searched defendant and seized three cylindrical objects from defendant's person. Upon seizing the objects, Detective Treigle handed them to Detective Jackson. The packaging (the black electrical tape and cellophane wrapping) containing the narcotics seized on the scene was identified by Detectives Treigle and Jackson as State's Exhibit 1, and the methamphetamine contained in the packaging was identified by the officers as State's Exhibit 2. Specifically, Detective Jackson testified that his handwriting was contained on the evidence bags for State's Exhibits 1 and 2, referencing item number F-8.591-16 dated June 28, 2016, which is the day that the evidence in question was seized.

On cross-examination, Detective Jackson admitted that, in his report, he did not specifically list the evidence seized as "Evidence Article 1 [and] 2." Thus, defendant objected to the admission of State's Exhibits 1 and 2 on the basis of a lack of chain of custody due to the fact that they were not identified contemporaneously as Evidence Articles 1 and 2 by Detective Jackson when they were seized. The trial court denied defendant's objection to the admission of these pieces of evidence finding that Detective Jackson identified the items seized from defendant on the night of his arrest and his handwriting on those items.

In this case, any alleged gap in the chain of custody was placed before the trier of fact-the judge in this case-who determined that sufficient visual identification was made through the testimony of Detective Treigle, Detective Jackson, and Mr. Cole to verify that the evidence at issue, which tested positive for methamphetamine in a quantity over four hundred grams, was that evidence discovered on defendant's person subsequent to his arrest.

Further, any alleged defect in the chain of custody goes to the weight of the evidence rather than its admissibility, and after considering the testimony presented, we find the trial court did not abuse its discretion in admitting the evidence and finding the evidence to be connected to the case. State v. Arita , 04-39 (La. App. 5 Cir. 3/1/05), 900 So.2d 37, writ denied , 05-0843 (La. 11/29/05), 916 So.2d 165 (a gap in the chain of custody concerning the transportation of the latent print to the crime lab was insufficient to rebut a finding that the print was connected to the case). Considering the record in its entirety, we find that the evidence presented at trial was sufficient to prove beyond a reasonable doubt that defendant possessed more than four hundred grams of methamphetamine.

In his second assignment of error, defendant argues that the trial court erred in denying his motion to continue in order to secure the presence of out of state witnesses. Specifically, defendant argues that the trial court erred in denying his verbal motion to continue his trial in order to secure the presence of out-of-state witnesses-De La Cruz and Deleon. He claims that the witnesses were necessary to present his defense of entrapment since he contends that Deleon and De La Cruz were working with police. Defendant explains that, although service was made on De La Cruz, the status of the subpoena on Deleon was unknown. Defendant asserts that his motion to continue the trial should have been granted and that, by forcing him to proceed, the trial judge denied his right to compulsory process.

The State argues the record reflects the trial judge was fully justified and acted within his discretion in denying defendant's untimely oral motion for a continuance on the day of trial after multiple continuances had been granted for defendant to attempt to secure the presence of out-of-state witnesses. The State maintains the record does not support the proposition that the grounds for defendant's continuance arose unexpectedly, and thus, having failed to comply with the requirements of La. C.Cr.P. art. 707, it maintains defendant has not preserved his argument. The State also suggests that defendant did not adequately comply with the requirements of La. C.Cr.P. art. 709, contending that he failed to establish that the witnesses would testify to material facts needed for his defense or that the witnesses would be available at a later date. Finally, the State concludes that even assuming arguendo that the oral motion for a continuance was erroneously denied, defendant is not entitled to relief because he has failed to make a showing of specific prejudice.

Defendant was arraigned on August 29, 2016. Approximately a year and a half later, on February 19, 2018, defendant filed a motion to obtain out-of-state witnesses, David Deleon and Gabriel De La Cruz, which the trial court granted. Further, the trial court ordered that out-of-state subpoenas issue to request the Harris County and Fort Bend County courts in Texas serve De La Cruz and Deleon. The trial court further granted defendant's motion to continue trial to allow additional time to obtain service and to secure the appearance of the two alleged material witnesses at trial.

On March 21, 2018, defendant filed a second motion to obtain witnesses from another state, again contending Deleon and De La Cruz were material to his entrapment defense. The trial court again granted defendant's motion and, for a second time, ordered that certificates be issued to the court of record in the county in which the witnesses were located, to secure the presence of Deleon and De La Cruz at the trial scheduled for May 14, 2018.

On the morning of May 14, 2018, defense counsel reminded the court that it had ordered the out-of-state certificates to secure the presence of Deleon and De La Cruz. Defense counsel confirmed that De La Cruz was incarcerated in Richmond County, Texas, and had a court date on the same day of defendant's trial. Further, defense counsel confirmed that the subpoena for Deleon had been issued, but service regarding the subpoena was unknown. Defense counsel verbally sought another continuance, which the trial court denied.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution (1974) guarantee a criminal defendant the right to compulsory process and to present a defense. A defendant's right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Gordon , 01-734 (La. App. 5 Cir. 11/27/01), 803 So.2d 131, 148, writ denied , 02-0362 (La. 12/19/02), 833 So.2d 336. La. C.Cr.P. art. 741 provides for obtaining a witness from another state and requires the trial judge to issue a certificate under the seal of court stating that a person in another state is a material witness in a prosecution pending in a court of record in this state and specifying the number of days the witness shall be required. This certificate shall be presented to a judge of a court of record in the county (parish) in which the witness is found. See La. C.Cr.P. art. 741. Defendant is entitled to have the procedures set forth in this article completed. However, this right is predicated on the exercise of due diligence by the accused. See State v. Hogan , 372 So.2d 1211, 1214 (La. 1979).

A motion for a continuance must be made in writing and allege the specific grounds upon which it is based. La. C.Cr.P. art. 707. As a general rule, a motion for a continuance must be made within seven days prior to trial. Nevertheless, in the interests of justice, the trial court may grant a continuance upon written motion at any time after a contradictory hearing. Id.

The denial of an oral motion for continuance leaves nothing for the appellate court to review.

State v. Winfrey , 97-427 (La. App. 5 Cir. 10/28/97), 703 So.2d 63, 68, writ denied , 98-264 (La. 6/19/98), 719 So.2d 481 (citing State v. Malinda , 95-292 (La. App. 5 Cir. 10/31/95), 663 So.2d 882, 886 ). Nevertheless, there is a jurisprudential exception to the requirement for a written motion where the circumstances producing the motion occur unexpectedly, and there is no opportunity to prepare the motion. State v. Bartley , 03-1382 (La. App. 5 Cir. 3/30/04), 871 So.2d 563, 567, writ denied , 04-1055 (La. 10/1/04), 883 So.2d 1006 (citing Winfrey , 703 So.2d at 68 ) (holding that the defendant had not preserved the denial of his oral motion for continuance because no unexpected circumstances arose to prevent the filing of the written motion).

In the present case, there is no evidence in the record that a written motion for continuance was filed or that an oral motion was made seven days in advance of trial. Rather, on the day of trial, defense counsel moved for a continuance on the basis that the two out-of-state witnesses were not present. That day, defense counsel informed the court that De La Cruz was incarcerated in Texas with his own court date that day. Further, defense counsel stated that Deleon had apparently not been served. We find that the circumstances of the witnesses' absence did not occur unexpectedly so as to prevent the filing of a written motion. Therefore, defendant has not preserved for appellate review the denial of his verbal motion to continue. This assignment lacks merit.

In his final assignment of error, defendant argues, as he did at sentencing, that the maximum thirty-year sentence imposed upon him is excessive. He contends that the trial judge imposed the maximum sentence of thirty years to punish defendant for declining to enter a guilty plea and exercising his right to trial. The State submits that, after considering the amount of methamphetamine possessed, the harm such drugs pose to society, and defendant's criminal background, the trial judge did not abuse his broad sentencing discretion in imposing the maximum sentence in this case.

Here, defendant was convicted of possession of over four hundred grams of methamphetamine, in violation of La. R.S. 40:967. At the time of the instant offense in June of 2016, a defendant convicted of violating La. R.S. 40:967 was subject to a penalty range of fifteen to thirty years at hard labor and a fine of not less than two hundred fifty thousand dollars nor more than six hundred thousand dollars. See La. R.S. 40:967(F)(2)(c). The sentencing statute further mandated that the entirety of the sentence not be suspended and that the defendant not be eligible for probation or parole prior to serving the minimum sentence, which is at least fifteen years. See La. R.S. 40:967(G). In this case, the trial judge sentenced defendant to the maximum thirty-year term of imprisonment at hard labor.

Before sentencing the forty-nine-year-old defendant, the trial court took cognizance of his prior convictions, which included two convictions for burglary of a habitation (1988 and 2002), burglary of a motor vehicle (1990), robbery (1993), and unauthorized use of a motor vehicle (2002). Further, the trial judge noted that defendant was on parole for his 2002 burglary of a habitation conviction at the time he committed the instant offense. In imposing the thirty-year sentence, the court also noted the "massive amount" of methamphetamine (five hundred eighty-two grams) defendant had in his possession, which was transported from Texas to Louisiana, finding defendant to be in need "of a very lengthy correctional sentence." The trial court further noted that defendant might be facing a potential parole revocation and a possible life sentence as a multiple offender.

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits cruel and unusual punishment but further explicitly prohibits excessive punishment. A sentence is unconstitutionally excessive "if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Davis , 449 So.2d 452, 453 (La. 1984). 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 , 05-244 (La. 12/9/05), 916 So.2d 1048.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion not whether another sentence might have been more appropriate. State v. Dorsey , 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.

However, while a trial judge is given wide discretion in the imposition of sentences within statutory sentencing ranges, a sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits. State v. Sepulvado , 367 So.2d 762, 769-70 (La. 1979). "In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise his sentencing discretion to impose sentences gradated according to the individualized circumstances of the offense and of the offender." Id. at 766. The "interactivity between the range of permissible statutory criminal sanctions and the individualized facts of each case creates a sliding, fact-variant spectrum for a trial judge's discretion under each criminal statute for each particular criminal defendant." State v. Hamdalla , 12-1413 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 627, writ denied , 13-2587 (La. 4/25/14), 138 So.3d 642.

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. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Badeaux , 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied , 01-2965 (La. 10/14/02), 827 So.2d 414.

In this case, after applying the three factors, we find that the thirty-year maximum sentence imposed by the trial court was unconstitutionally excessive in this case. Here, although defendant was found in possession of a large quantity of methamphetamine, defendant testified that, at the time of the incident, he was homeless and felt threatened and intimidated by De La Cruz and Deleon. Further, although defendant was still on parole for one of his four prior convictions at the time of the instant offense, his prior convictions are not drug offenses, and only one (the 1993 robbery) appears to be a crime of violence. There is nothing in the record, or in defendant's criminal past, to indicate that he is a drug dealer or part of a drug distribution ring.

Furthermore, we note that, if defendant had committed the instant offense approximately one year later, he would have been subject to a maximum sentence of only twenty years. In Acts 2017, No. 281, effective August 1, 2017, the Legislature amended the sentencing range for possession of over four hundred grams of methamphetamine by reducing it to a range of one to twenty years. At the same time, the Legislature also repealed Section (G) of La. R.S. 40:967regarding the imposition of the restriction of benefits for the instant crime of conviction. While the amendments to La. R.S. 40:967 were not given retroactive effect, that does not mean this Court cannot consider the expression of legislative will at the time the amendment reducing the applicable penalties was passed. See State v. Dixon , 17-422 (La. App. 5 Cir. 3/14/18), 241 So.3d 514, 527 (dissent) (citing State v. Jarreau , 05-355 (La. App. 4 Cir. 12/14/05), 921 So.2d 155, 162-63, writ denied , 06-131 (La. 6/14/06), 929 So.2d 1267 ).

Based on the foregoing, we find that the maximum sentence, which should be reserved for cases involving the most serious violations of the offense charged and the worst type of offender, was not properly imposed in this case. Accordingly, we find that defendant's thirty-year sentence is disproportionate to the harm done and shocks one's sense of justice. Finding the sentence imposed unconstitutionally excessive, we vacate defendant's sentence and remand for resentencing.

Pursuant to La. C.Cr.P. art. 881.4(A), this Court may provide direction regarding a constitutionally reasonable sentence in a given case. Accordingly, in this case, we suggest a sentence of twenty years for this conviction of possession of more than four hundred grams of methamphetamine.

Errors Patent

Finally, we have reviewed the record 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. 5th Cir. 1990). We note that the record fails to reflect that defendant was properly advised of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8, after imposition of his sentence on May 24, 2018. Accordingly, through this opinion, we inform defendant that La. C.Cr.P. art. 930.8 provides that a defendant shall have two years after the judgment of conviction and sentence has become final to seek post-conviction relief. See State v. Perez , 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      Although defendant's May 21, 2018 motion for appeal-filed after the verdict but before sentencing-was premature, defendant's appeal is not premature since his motion for appeal was not granted until after he was sentenced. See State v. Proctor , 04-1114 (La. App. 5 Cir. 3/29/05), 901 So.2d 477, 484 n.4.

      "Richard" was not identified in the record at hand.

      Later that night, the officers stopped this vehicle, driven by De La Cruz, and, with his consent, searched the vehicle. During the search, the officers found remnants of black electrical tape.

      Deleon and De La Cruz were arrested for attempted conspiracy to distribute methamphetamine but they were not tried with defendant-herein and are not the subject of this appeal.

      Mr. Cole testified that the net weight is the weight of the substance only, while the gross weight is the weight of the substance and its packaging.

      Defendant testified that he had several prior felony convictions.

      Alternatively, the accused could be entitled to a reduction of the conviction to a judgment of guilty of a lesser and included offense. La. C.Cr.P. art. 821 ; State v. Byrd , 385 So.2d 248 (La. 1980).


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    STATE of Louisiana v. Shawn R. RICHARDSON
    NO. 18-KA-401
    Court of Appeal of Louisiana, Fifth Circuit.
    February 06, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Lynn Schiffman
    COUNSEL FOR DEFENDANT/APPELLANT, SHAWN R. RICHARDSON, Bertha M. Hillman
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
   LILJEBERG, J.

Defendant appeals his conviction and sentence for attempted possession of cocaine, arguing that his motion to suppress evidence should have been granted. For the following reasons, we affirm.

PROCEDURAL HISTORY

On September 22, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Shawn R. Richardson, with possession of cocaine in violation of La. R.S. 40:967(C). Defendant was arraigned and pleaded not guilty. On January 29, 2018, the trial court held a hearing on defendant's motion to suppress evidence, and the motion was denied.

On March 13, 2018, the matter proceeded to trial, and a jury found defendant guilty of the responsive verdict of attempted possession of cocaine. On March 16, 2018, the trial court sentenced defendant to one year at hard labor, to run consecutively to any time defendant was presently serving. Defendant appeals.

FACTS

On the night of August 7, 2017, Detective Nathaniel Obiol with the Jefferson Parish Sheriff's Office Narcotics Section observed a silver Chevy Malibu traveling on Veterans Boulevard near Lafreniere Park fail to signal as it changed lanes. At the time, Detective Obiol was alone in his unmarked unit but was working in tandem with four or five other narcotics officers, including his supervisor, Sergeant Joshua Collins. Officers conducted a traffic stop of the vehicle, and the driver pulled into a nearby parking lot in the 2600 block of Veterans Boulevard. Detective Obiol and several other unmarked police units equipped with police lights approached the vehicle when it pulled over.

Detective Obiol asked the driver, defendant, to step out. Detective Obiol immediately advised defendant of his Miranda rights and the reason for the traffic stop, and defendant indicated that he understood his rights. During the traffic stop, Detective Obiol asked defendant if there was any contraband, such as narcotics or weapons, inside the vehicle or on his person. Detective Obiol testified that defendant was "adamant" there was nothing illegal in the vehicle or on his person, and defendant told the officers they could search him and his car. Sergeant Collins, who was present when defendant exited the vehicle, similarly recalled that defendant provided consent to search his person and vehicle.

In response to defendant's consent to search, Detective Obiol removed a stocking cap from defendant's head, and he and Sergeant Collins observed a plastic bag containing a rock of crack cocaine stuck to the side of defendant's head. Detective Obiol seized the item as evidence, and defendant was arrested.

LAW AND DISCUSSION

In his sole assignment of error, defendant argues that the trial court erred in denying his motion to suppress evidence. He asserts that his Fourth Amendment rights were violated when officers conducted a search of his person and seized evidence following a traffic infraction. He argues that his detention was unlawful and the purpose of the stop was pretextual as it was based upon a tip from an unreliable and unverified confidential informant.

The State responds that Detective Obiol was justified in stopping defendant after he observed the commission of a traffic infraction regardless of whether the stop was a pretext to investigate for narcotics. It argues that defendant voluntarily consented to a search of his person, and the seizure of the cocaine was legal under the consent exception to the warrant requirement. Thus, the State alleges that the trial court correctly denied the motion to suppress evidence.

The State has the burden, in a hearing on a motion to suppress the evidence, of establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D). The trial court's denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Taylor , 12-25 (La. App. 5 Cir. 6/28/12), 97 So.3d 522, 529. When determining whether the ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the hearing on the motion to suppress but may also consider pertinent evidence presented at trial. State v. Smith , 03-786 (La. App. 5 Cir. 12/30/03), 864 So.2d 811, 818, writs denied , 04-380, 04-419 (La. 6/25/04), 876 So.2d 830 ; State v. Byes , 94-611 (La. App. 5 Cir. 12/28/94), 648 So.2d 1073, 1074 ; State v. Burkhalter , 428 So.2d 449, 455 (La. 1983).

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Belton , 441 So.2d 1195 (La. 1983), cert. denied , 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984) ; Taylor , supra . However, law enforcement officers are authorized by La. C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops, which allow officers to stop and interrogate a person who is reasonably suspected of criminal activity. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Gresham , 97-1158 (La. App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied , 98-2259 (La. 1/15/99), 736 So.2d 200. "Reasonable suspicion" to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference.

State v. Sanders , 97-892 (La. App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied , 98-1163 (La. 9/25/98), 724 So.2d 774 ; Taylor , 97 So.3d at 529.

The violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Jones , 01-177 (La. App. 5 Cir. 10/17/01), 800 So.2d 958, 962. The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. State v. Martin , 11-160 (La. App. 5 Cir. 12/28/11), 83 So.3d 230, 237. "Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants." State v. Waters , 00-0356 (La. 3/12/01), 780 So.2d 1053, 1056. Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order the driver and any passenger out of the vehicle pending completion of the stop. State v. Gomez , 06-417 (La. App. 5 Cir. 11/28/06), 947 So.2d 81, 85, citing Maryland v. Wilson , 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

At the suppression hearing, Detective Obiol was the sole witness to testify. He stated that at approximately 9:50 p.m. on August 7, 2017, he received information from a confidential informant that a black male in a silver Chevy Malibu was selling crack cocaine in the area of Lafreniere Park. He testified that he and other members of his narcotics group established mobile surveillance of the area and observed a black male driving a silver Chevy Malibu on Veterans Boulevard in Metairie. Detective Obiol also testified, as he did at trial, that he observed a traffic violation when the vehicle failed to signal while changing lanes on Veterans Boulevard, so he conducted a traffic stop.

Defendant asserts that he was unlawfully stopped based on a tip from an unreliable and unverified confidential informant. He also argues that the stop was a pretext to investigate and search for drugs. However, both at the suppression hearing and at trial, Detective Obiol testified that he stopped defendant for a traffic infraction after he observed defendant change lanes without signaling. See La. R.S. 32:104(D) ("signals ... shall be used to indicate an intention to ... change lanes ..."). Even if the traffic stop was a pretext to investigate defendant for controlled dangerous substances, this Court has held that police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for other crimes. State v. Williams , 13-732 (La. App. 5 Cir. 3/26/14), 138 So.3d 727, 732. See also State v. Davis , 09-452 (La. App. 5 Cir. 1/26/10), 31 So.3d 513, writ denied , 10-2201 (La. 10/21/11), 73 So.3d 373.

Accordingly, based on the testimony presented, we find that Detective Obiol conducted a lawful traffic stop of defendant after observing him commit a traffic infraction, regardless of whether the stop was additionally based on information from a confidential informant.

Defendant further contends that even if the initial stop was lawful, he was not engaged in any criminal activity to justify the search of his person and vehicle or the detention of him for any time longer than reasonably necessary to issue the traffic citation. He claims that Detective Obiol's conduct was not reasonably related to the circumstances that justified the stop.

La C.Cr.P. art. 215.1(D) provides that in conducting a traffic stop "an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity." If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Sharpe , 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ; State v. Cooks , 12-237 (La. App. 5 Cir. 1/30/13), 108 So.3d 1257, 1269, writ denied , 13-0454 (La. 9/20/13), 123 So.3d 164.

Detective Obiol testified that when he stopped defendant, he ordered him out of the vehicle and advised him of his Miranda rights. Detective Obiol recalled that defendant indicated he understood his rights, and Detective Obiol then asked him whether there was anything illegal in the vehicle or on himself, such as drugs or weapons. Detective Obiol testified that defendant was "adamant" there was nothing in the car or on his person, recalling defendant provided:

...no, there's nothing, you can search, it's - you know, I don't have anything in the car, there's nothing on me, I'm not doing anything illegal ... [Y]ou can search the vehicle, you can search me, I don't have anything on me."

Detective Obiol stated that because defendant consented to a search of his person and vehicle, he removed defendant's stocking cap and found the cocaine.

There is no evidence indicating the duration of the stop, and the record does not reflect that defendant was detained for a period of time longer than reasonably necessary to complete the routine traffic stop. The record suggests that the detention was brief and that defendant quickly consented to the search of his person and vehicle.

Finally, defendant contends that the search of his person leading to the discovery of the cocaine was illegal, where he did not execute a consent to search form. He claims Detective Obiol was not authorized to search his person.

Warrantless searches and seizures are unreasonable per se, unless justified by one of the specific exceptions to the warrant requirement. State v. Manson , 01-159 (La. App. 5 Cir. 6/27/01), 791 So.2d 749, 757, writ denied , 01-2269 (La. 9/20/02), 825 So.2d 1156, citing Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. If the State relies on consent to justify a warrantless search, it has the burden of proving the consent was given freely and voluntarily. State v. Cambre , 04-1317 (La. App. 5 Cir. 4/26/05), 902 So.2d 473, 479-80, writ denied , 05-1325 (La. 1/9/06), 918 So.2d 1039. Oral consent is sufficient and written consent is not required. Gomez , 947 So.2d at 86. Voluntariness of consent is a question of fact which the trial court is to determine based on the totality of the circumstances. Id.

The testimony indicates that defendant freely and voluntarily gave his oral consent to search his vehicle and person. Both at the suppression hearing and at trial, Detective Obiol maintained that defendant insisted he had no contraband or weapons on his person or his vehicle and gave the officers consent to search. When questioned by defense counsel as to why a waiver form was not executed for defendant's consent, Detective Obiol indicated that defendant was "adamant that he didn't have anything on him," so he "took his word" and performed the search. At trial, Sergeant Collins corroborated Detective Obiol's testimony, stating that he was present when defendant was stopped and exited his vehicle, and that defendant provided consent to search his person and his vehicle. After defendant voluntarily consented to the search of his person, Detective Obiol removed the stocking cap on defendant's head, which resulted in the discovery of the cocaine.

The credibility of witnesses is best determined by the trial judge and is not to be disturbed on appeal unless the trial judge abuses his discretion. State v. Wolff , 09-508 (La. App. 5 Cir. 12/29/09), 30 So.3d 897, 902. The trial judge did not abuse his discretion in crediting the testimony of Detective Obiol, which was also supported by the testimony of Sergeant Collins, that defendant gave consent to search his person and his vehicle.

In conclusion, the stop of defendant pursuant to a traffic violation was lawful, and the record does not show that defendant was detained any longer than necessary. Defendant freely and voluntarily gave consent to search his person and vehicle, and the cocaine was lawfully seized from defendant's person. For these reasons, the trial court did not abuse its discretion in denying defendant's motion to suppress evidence.

ERRORS PATENT

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

Although the sentencing minute entry indicates that defendant was advised of the prescriptive period for seeking post-conviction relief, as set forth in La. C.Cr.P. art. 930.8, the transcript fails to indicate he was advised of these time limitations. When there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).

Therefore, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied , 09-248 (La. 10/30/09), 21 So.3d 272.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence.

AFFIRMED

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

      Pamela Williams Cyprian, a forensic scientist at the Jefferson Parish Crime Laboratory who was accepted as an expert in the identification and analysis of controlled dangerous substances, tested the substance and confirmed it was cocaine.

      A motion to suppress should be in writing. State v. Simmons , 08-269 (La. App. 5 Cir. 10/28/08), 996 So.2d 1177, 1182 n.1, writ denied , 09-0015 (La. 9/25/09), 18 So.3d 81, citing State v. Royal , 255 La. 617, 232 So.2d 292 (1970). Although it does not appear that defendant filed a written motion to suppress evidence in this case, the State did not object to the procedural deficiency and the trial court held a suppression hearing. Thus, this Court may review the ruling on the motion to suppress evidence. See Simmons , 996 So.2d at 1182, n.1.

      In Davis , supra , the defendant contended that the detective used the pretext of a broken taillight to justify the stop of his vehicle. The detective admitted that although he stopped the vehicle for a broken taillight, the stop was also based on information he learned from a confidential informant. This Court found that police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Id. at 517.

      The Louisiana Supreme Court has found that an officer's recitation of Miranda rights to a defendant did not elevate a stop to an arrest. See State v. Thompson , 11-0915 (La. 5/8/12), 93 So.3d 553, 570.


author: MARC E. JOHNSON, JUDGE

text:
    STATE of Louisiana v. Joshua L. BLACK
    NO. 18-KA-494
    Court of Appeal of Louisiana, Fifth Circuit.
    February 06, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, JOSHUA L. BLACK, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
   MARC E. JOHNSON, JUDGE

Defendant, Joshua Black, appeals his convictions and sentences for attempted possession of a firearm by a convicted felon and possession with intent to distribute marijuana. For the following reasons, we affirm Defendant's convictions and sentences, and we further grant appellate counsel's motion to withdraw as attorney of record for Defendant.

On October 2, 2017, the Jefferson Parish District Attorney filed a bill of information charging Defendant with one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one) and one count of possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two). Defendant pled not guilty at his arraignment.

Defendant filed motions to suppress his statement and the evidence, which were denied after a hearing on April 19, 2018. On May 15, 2018, the State amended count one of the bill of information to charge Defendant with attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and La. R.S. 14:95.1. Immediately following the amendment, Defendant withdrew his pleas of not guilty, and after being advised of his Boykin rights, pled guilty as charged in the amended bill of information. In accordance with a plea agreement, the trial court sentenced Defendant to five years imprisonment at hard labor on each count to run concurrently. This appeal follows.

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 details the procedural history of the case as well as the circumstances surrounding Defendant's guilty pleas and sentencing. She particularly notes that there were no pretrial rulings preserved for appeal, as Defendant did not plea under State v. Crosby , 338 So.2d 584 (La. 1976). Appellate counsel further sets forth that Defendant's guilty pleas were not constitutionally infirm because the trial court reviewed his pleas and conducted a proper colloquy with Defendant. Further, appellate counsel recognizes that Defendant was not coerced to enter the guilty pleas, and that the sentences were imposed in conformity with the plea agreement. Defendant's appellate counsel concludes that after a conscientious and thorough review of the trial court record, she can find no non-frivolous issues to raise on appeal and no ruling of the trial court that can be raised on appeal or 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, bills of information, and transcripts in the appellate record. Our independent 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 Defendant pled guilty as charged to the amended bill of information; therefore, he waived all non-jurisdictional defects in the proceedings leading up to the guilty plea and review of any such defects either by appeal or post-conviction relief is precluded. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Moreover, no pre-trial rulings were preserved for appeal under the holding in State v. Crosby , supra .

Additionally, the record reveals no constitutional infirmities or irregularities in Defendant's guilty pleas to the two charged offenses that would render them invalid. The transcript of the guilty plea proceeding and the acknowledgement and waiver of rights form collectively 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.

The record further reflects that Defendant was informed by the trial court of the sentencing range for both counts and of the actual sentences that would be imposed upon acceptance of his guilty pleas. Further, during the guilty plea colloquy and in the waiver of rights form, Defendant confirmed that he had not been forced, coerced, or intimidated into entering his guilty pleas. After her colloquy with Defendant, the trial judge accepted Defendant's guilty pleas as knowingly, intelligently, freely, and voluntarily made.

Further, Defendant's sentences were imposed in accordance with the plea agreement. 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 that was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In addition, Defendant's sentences fall within the sentencing ranges set forth in the applicable statutes. See La. R.S. 14:27 ; La. R.S. 14:95.1(B) ; and La. R.S. 40:966(B)(2)(a).

Based on the foregoing, we find that Defendant's guilty pleas to the charged offenses and the sentences imposed pursuant to the plea agreement do not present any issues for appeal.

Lastly, we have reviewed the record for errors patent pursuant to La. C.Cr.P. art. 920 and find none that require corrective action.

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.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

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

      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 ).

      In addition, Defendant was notified of his right to file a pro se brief in this appeal. As of the date of this opinion, 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).


author: MOLAISON, J.

text:
    STATE of Louisiana v. Joseph BECNEL
    NO. 18-KA-549
    Court of Appeal of Louisiana, Fifth Circuit.
    February 06, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH BECNEL, Bruce G. Whittaker
    DEFENDANT/APPELLANT, JOSEPH BECNEL, In Proper Person
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant appeals his conviction and sentence for purse snatching. For the reasons that follow, defendant's conviction and sentence are affirmed.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information on September 8, 2017, charging defendant, Joseph Becnel, with one count of purse snatching, in violation of La. R.S. 14:65.1. After pleading not guilty on September 20, 2017, defendant proceeded to trial before a six-person jury on May 30, 2018, at the conclusion of which he was found guilty as charged. On June 27, 2018, defendant was sentenced to 17 years imprisonment in the Department of Corrections. Defendant's written motion for appeal, filed pro se on the same date of his sentencing, was granted by the trial court on July 9, 2018. The instant appeal followed.

FACTS

At trial, the victim, Lisa Reyes, testified that on the afternoon of July 23, 2017, she and Amanda Knight, along with Knight's two children, drove to a gas station in Bridge City to withdraw money from an ATM. Reyes placed $ 100 in cash from the ATM into her wallet, which already contained $30 in bills, and then began to put the wallet into her front pocket. As she did so, a man approached her from behind, pushed up against her, reached into her pocket, and took her wallet. As her wallet was being taken, Reyes fell through the driver's side doorway, which was open at that time. Reyes described resisting or struggling to retain her wallet and get back up. Reyes then unsuccessfully chased after defendant on foot. Reyes stated that she located her wallet the following day in the area where it was taken from her, and that only the cash was missing from it.

Reyes positively identified defendant in court as the individual who took her wallet. Reyes further testified that upon being shown the initial photographic lineup, she narrowed it down to two individuals but ultimately selected defendant's photograph, realizing the age difference between the individuals depicted in the two photographs.

The trial testimony of Amanda Knight largely corroborated Reyes' testimony, and she described how defendant approached Reyes and "forced her on the side of her car and pushed her up against the car and stole her wallet out of her pocket."

Jonathan Helgason testified that on July 23, 2017, he was driving down Bridge City Avenue in Westwego, when he observed an African-American male walk behind a car in a gas station parking lot. At the time, there were two women standing outside of the car and two children in the back seat. Helgason watched the man approach the car and reach inside at the same time one of the women was entering. Soon after, Helgason heard a woman yell that her wallet had been stolen by the same man he had seen earlier. Helgason testified that one of the women in the car chased the man underneath the Huey P. Long Bridge. While Helgason called 9-1-1, the perpetrator went out of view.

Jefferson Parish Sheriff's Office Deputy Daniel Carter testified that he was dispatched to the scene of a reported purse snatching. After arriving, Deputy Carter interviewed Helgason, Reyes, Knight, and Knight's two minor children. Reyes told Deputy Carter that the man who took her wallet had done so by putting his hand into her pocket and lunging forward between the car door and the car, catching her off guard in the process. Deputy Carter's search of the immediate area did not yield the wallet at that time. In reviewing the gas station's security camera footage, Deputy Carter observed that while the video did show the perpetrator approaching Reyes, the actual crime occurred off camera.

Jefferson Parish Sheriff's Office Detective Ryan Fanguy testified that, after he retrieved the video surveillance from the gas station where the crime occurred, he was able to obtain a high-quality image of the suspect to include in a police press release. Defendant, Joseph Becnel, was eventually identified as the perpetrator in the video through the use of various databases utilized by law enforcement. A six-person photographic lineup was shown at separate times to Reyes and Knight, who both narrowed the lineup down to two persons, one of whom was defendant.

After the issuance of an arrest warrant, Detective Fanguy located defendant and took him into custody. Defendant was advised of, and waived his rights prior to confessing his involvement in the crime and identifying himself in the photograph captured from the video surveillance. Defendant told Detective Fanguy that after he saw Reyes put money into her wallet, he "took the wallet out her pocket." Defendant denied making any physical contact with Reyes when he took the wallet. Detective Fanguy testified that after he told defendant that he was being charged for purse snatching, defendant asked him whether the charge could be reduced to a theft.

The defense rested without calling any witnesses.

LAW AND ANALYSIS

In his sole counseled assignment of error, defendant argues the evidence presented at trial was insufficient to support his conviction for purse snatching, and at most, the evidence only proved the crime of theft. Specifically, defendant contends the State was unable to prove that the victim's wallet was taken by "force or intimidation, or by snatching." Defendant also contends that the video surveillance does not corroborate any alleged use of force and that the two key witnesses at trial-Ms. Reyes and Ms. Knight-testified in a manner inconsistent with what was originally relayed to investigating officers at the scene.

The standard of review for determining the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Both direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

Under the Jackson standard, a review of a criminal conviction for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores , 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, both admissible and inadmissible, to determine whether the evidence is sufficient to support the conviction. State v. Hearold , 603 So.2d 731, 734 (La.1992).

In the instant case, defendant was charged with one count of purse snatching, in violation of La. R.S. 14:65.1. That statute provides, in relevant part:

A. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

The supreme court has held that "snatching" does not require an actual face-to-face confrontation and is distinguished from "use of force" and "intimidation" by the statute's very wording. State v. Anderson , 418 So.2d 551, 552 (La. 1982). The State need only show that force or intimidation or snatching was used to accomplish the theft of something of value from the purse that is within the immediate control of or on the person. State v. Boss , 03-133 (La. App. 5 Cir. 5/28/03), 848 So.2d 75, 78, writ denied , 03-1968 (La. 5/14/04), 872 So.2d 508. La. R.S. 14:65.1 does not require that the victim know at the time of the taking that his or her property is being taken or snatched. State v. Smith , 07-2028 (La. 10/20/09), 23 So.3d 291, 298 n.3 (per curiam). Thus, it is possible in Louisiana to "snatch" a victim's purse from her possession without her awareness at the time of the taking. Id .

In Anderson , supra , sufficient evidence of a purse snatching was found where the victim testified only that she felt a vibration, then noticed that her purse was no longer on the floor by her feet. The supreme court found that the defendant's taking of the purse without force or confrontation still constituted a snatching. In State v. Capote , 474 So.2d 497 (La. App. 4th Cir. 1985), the court held that even though the victim did not feel her purse being removed from the back of her chair, the theft constituted purse snatching, recognizing that no face-to-face confrontation was required. In State v. Spurlock , 539 So.2d 977 (La. App. 4th Cir. 1989), writ denied , 544 So.2d 399 (La. 1989), the court found sufficient evidence to support the purse snatching conviction where a security guard observed the defendant remove a wallet from the victim's purse without her knowledge of the theft. And in State v. Neville , 96-0137 (La. App. 4 Cir. 5/21/97), 695 So.2d 534, writ denied , 97-1637 (La. 12/12/97), 704 So.2d 1180, although the victim did not see or feel the defendant take her wallet from her purse, she saw him walking off with it, which was sufficient to support the defendant's conviction for purse snatching.

It is clear from the foregoing jurisprudence that use of force is not an element necessary to be proven in order to sustain a conviction for purse snatching. Therefore, defendant's argument on this point is without merit. Turning to the actual elements of the crime at issue, discussed above, we first find that, by defendant's own admission, he took the victim's wallet from her front pocket after he watched her place money inside of it. The defendant's account of the crime was consistent with the testimony of the victim and Knight, that defendant approached Reyes, pushed up against her, reached into her pocket, and took her wallet. Viewing this evidence in the light most favorable to the prosecution, we hold that the jury had a reasonable basis for its finding that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , supra .

ERRORS PATENT REVIEW

As is our routine practice, we have reviewed the record 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. 5th Cir. 1990). The following matter was discovered.

The record reflects that defendant was given an incomplete advisal per La. C.Cr.P. art. 930.8, after imposition of his sentence on June 27, 2018. La. C.Cr.P. art. 930.8 provides that a defendant shall have two years after the judgment of conviction and sentence has become final to seek post-conviction relief. Here, according to the transcript, the trial court informed defendant he had "two years after the judgment and sentence become final to seek post conviction relief." (Emphasis added). Further, although the sentencing minute entry provides that an advisal regarding the proper prescriptive time period was given to defendant by the trial court, where there is a discrepancy between the transcript and the minute entry, the transcript generally prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Brooks , 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied , 12-2478 (La. 4/19/13), 111 So.3d 1030.

Accordingly, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED

      The record shows that Bridge City Avenue, where the crime occurred, is located in Westwego, Louisiana, which is within Jefferson Parish.

      On November 30, 2018, defendant filed a pro se supplemental brief, in which he challenged the sufficiency of the evidence introduced at trial to convict him. Specifically, he denied that he had made physical contact with the victim during the taking of her purse, and he also challenged the credibility of the witnesses to the crime. Finally, defendant argued that if a crime was committed, it was pickpocketing and not purse snatching. Because all of these issues are addressed in the discussion of defendant's counseled assignment as well, a single analysis for all assigned errors is provided.

      To the extent that defendant asserts inconsistencies between Reyes' and Knight's trial testimony and their initial statements to police, we find no merit to his argument. Deputy Carter testified that while this is not contained in his police report, upon speaking with Reyes, he learned that defendant had taken her wallet from her by "sticking his hand in her pocket and lunged her between the car door and the car, so that she didn't know where to go or what to do." This testimony was consistent with Reyes' and Knight's accounts of the events at trial. The credibility of a witness will not be re-weighed on appeal. State v. Johnson , 00-1552 (La. App. 5 Cir. 3/28/01), 783 So.2d 520, 527, writ denied , 01-1190 (La. 3/22/02), 811 So.2d 921.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Cardell E. TORRENCE
    NO. 18-KA-551
    Court of Appeal of Louisiana, Fifth Circuit.
    February 06, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, CARDELL E. TORRENCE, Bertha M. Hillman, Gretna
    DEFENDANT/APPELLANT, CARDELL E. TORRENCE, In Proper Person
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   CHAISSON, J.

Defendant, Cardell E. Torrence, appeals his convictions and sentences for racketeering, conspiracy to commit theft, and theft of property. For the reasons that follow, we affirm defendant's convictions and sentences, but we remand the matter for the correction of errors patent as noted herein. In addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On June 30, 2016, the Jefferson Parish Grand Jury returned an indictment charging defendant and twelve other individuals with various offenses arising from the operation of a vehicle theft and "chop shop" ring throughout the State of Louisiana between May 1, 2009, and May 16, 2016. Specifically, defendant was charged with one count of racketeering, in violation of La. R.S. 15:1352 and La. R.S. 1353 (count one), one count of conspiracy to commit theft of property valued over $25,000.00, in violation of La. R.S. 14:26 and La. R.S. 14:67 (count two), and one count of theft of property valued at $5,000.00 or more but less than $25,000.00, in violation of La. R.S. 14:67 (count twenty-four).

On November 16, 2016, after being advised of his rights, defendant pled guilty as charged. Thereafter, on December 15, 2016, the trial court sentenced defendant in accordance with the plea agreement to ten years on "all counts" in the Department of Corrections to run concurrently.

The State then filed a bill of information, pursuant to the provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second felony offender on count two. After being advised of his rights, defendant stipulated to the allegations in the multiple bill. The trial court then vacated defendant's sentence on count two and resentenced him, in accordance with the plea agreement, to ten years in the Department of Corrections to run concurrently with the previously imposed sentences. The trial judge subsequently granted defendant an out-of-time appeal.

FACTS

Because defendant pled guilty, the facts of this case were not fully developed at a trial. However, as part of the plea agreement, defendant provided a written factual basis indicating that since 2010, he had stolen approximately four to five vehicles per month with Kevin Nero and Edwin Smith and had also stolen four or five vehicles with Parrish Norris. He further acknowledged that he received approximately $500.00 to $600.00 per stolen vehicle and that he helped to dissemble the stolen vehicles. In addition, defendant recognized that on March 23, 2016, he stole a 2015 Suzuki GSX-R.

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 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. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has filed an Anders brief, in which she sets forth the procedural history, the limited facts, and the circumstances surrounding defendant's guilty pleas. She specifically notes that during the November 16, 2016 guilty plea proceedings, the trial court explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights and further advised defendant of the sentences that would be imposed upon acceptance of his guilty pleas. Defendant's appellate counsel also notes that at the multiple offender proceeding on December 15, 2016, the trial court explained to defendant the rights he was waiving by stipulating to the multiple offender bill and the terms of his sentence. Further, she notes that the defendant was sentenced in conformity with the plea agreement and therefore is restricted by law from appealing his sentences. Having made a conscientious and thorough review of the trial court record and finding no non-frivolous issues to raise on appeal and no rulings of the trial court that arguably support the appeal, appellate counsel requests permission to withdraw as attorney of record for defendant.

In addition to appellate counsel's brief, defendant has filed a pro se supplemental brief, in which he challenges the validity of his guilty pleas alleging that they were not knowingly and intelligently entered. Defendant also asserts that the enhanced sentence imposed pursuant to the provisions of La. R.S. 15:529.1 is unconstitutional.

This Court has performed an independent, thorough review of the pleadings, minute entries, bills of information, and transcripts in the appellate record. Our review 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 to the three felony offenses. 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 his rights by pleading guilty.

In addition, the record reflects that defendant was advised by the trial court and in the waiver of rights form of the potential sentencing ranges for the charged offenses and of the actual sentences that would be imposed upon acceptance of his guilty pleas. Further, defendant acknowledged that pleading guilty was a knowing, intelligent, free, and voluntary act on his part and that no promises or threats had been made to encourage him to plead guilty. Defendant also answered affirmatively when asked whether he understood the possible legal consequences of pleading guilty as explained to him by his attorney and by the court. After a thorough colloquy with defendant, the trial court accepted defendant's pleas as knowingly, intelligently, freely, and voluntarily made.

Likewise, the record reveals that defendant was adequately advised of his rights in the multiple offender proceedings. The waiver of rights form and the colloquy between the trial court and defendant indicate that defendant was advised of his right to a hearing at which the State would have to prove the multiple offender status and of his right to remain silent throughout such a hearing. Defendant was also advised of the potential sentencing range as a second felony offender and of the actual sentence he would receive. Defendant indicated he was satisfied with the representation provided to him by his attorney and denied that he was forced, threatened, or coerced into entering the stipulation. Afterward, the trial court accepted his stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made.

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 that was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams , 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-109 (La. 6/21/13), 118 So.3d 406.

Here, defendant's original and enhanced sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Further, his sentences fall within the sentencing ranges set forth in the statutes. See La. R.S. 15:1354 ; La. R.S. 14:26 ; La. R.S. 14:67 ; La. R.S. 15:529.1. Moreover, the plea agreement appears beneficial to him in that he received a low-range sentence for his conviction of racketeering and a ten-year enhanced sentence when the maximum exposure was twenty years imprisonment.

Based on the foregoing, we find that defendant's guilty pleas, his multiple offender stipulation, and the sentences imposed pursuant to the plea agreements do not present any issues for appeal. We now turn our attention to the arguments raised by defendant in his pro se supplemental appellate brief.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In this first assigned error, defendant argues that his pleas were unknowingly and unintelligently entered as he did not understand the crimes to which he was pleading guilty. He specifically asserts that he did not understand the factual basis of the crimes and further that neither his trial counsel nor the trial court properly explained to him the statutory elements of racketeering or conspiracy, in violation of La. C.Cr.P. art. 556.1.

The record does not support defendant's argument that he did not understand the factual basis of the crimes to which he pled guilty. In fact, as part of the written plea agreement, defendant provided a factual basis setting forth his involvement in the crimes. During the guilty plea proceedings, defendant acknowledged his signature on the page entitled "Factual Basis" and further acknowledged that all of the information on that page was factually accurate. Therefore, defendant clearly was aware of the factual basis of the crimes to which he pled guilty.

Further, we find no merit to defendant's argument that he was not informed of the statutory elements of the offenses. Under La. C.Cr.P. art. 556.1(A)(1), the trial court shall not accept a plea of guilty or nolo contendere without determining that the defendant understands the nature of the charge to which the plea is offered. In State v. Respert , 14-769 (La. App. 5 Cir. 2/25/15), 168 So.3d 839, 845, writ denied , 15-604 (La. 1/25/16), 184 So.3d 1288, this Court recognized that the test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of an offense, but rather the defendant must establish he lacked awareness of the essential nature of the offense to which he was pleading.

In the present case, the record reflects that defendant was aware that he was pleading guilty to racketeering, conspiracy to commit theft valued over $25,000.00, and theft over $5,000.00 but less than $25,000.00. Defendant executed a written plea agreement and initialed the page of the agreement stating the charges to which he was pleading guilty. Further, the waiver of rights form, which was also initialed and signed by defendant, indicates that defendant was aware and understood that he was pleading guilty to racketeering, conspiracy to commit theft over $25,000.00, and theft of $5,000.00 or more but less than $25,000.00. Lastly, during the colloquy with the trial court, defendant answered affirmatively when asked if he understood the crimes to which he was pleading guilty.

Accordingly, in light of the foregoing, we find no merit to defendant's argument that his guilty pleas were not knowingly and intelligently entered.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In this second assigned error, defendant asserts that the imposition of his enhanced sentence pursuant to the multiple offender bill of information was double jeopardy, pointing out that no new crime was charged and that he was already "tried, convicted and sentenced for a violation of La. R.S. 15:1352 and R.S. 14:26:67."

The Habitual Offender Law creates no independent offense but rather prescribes the conditions under which there is an enhanced penalty for the current offense. State v. Boykin , 34,133 (La. App. 2 Cir. 12/6/00), 774 So.2d 1074, 1075. See also State v. Dorthey , 92-3120 (La. 9/10/93), 623 So.2d 1276 (explaining that because the multiple offender hearing is not a trial, legal principles such as double jeopardy do not apply). Therefore, considerations of double jeopardy do not apply to multiple offender proceedings. We further note that the record reflects that even before defendant pled guilty to the underlying charges, he was aware he would be charged as a multiple offender on count two as part of the plea agreement. Thus, defendant's second pro se assignment is also without merit.

ERRORS PATENT REVIEW

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 an error relating to the date of the offenses in the State of Louisiana Uniform Commitment Order (UCO) that needs correction. The UCO sets forth an offense date of May 1, 2009; the waiver of rights form and the transcript of the colloquy indicate that the date of the offenses was March 23, 2016; and the indictment sets forth a range of May 1, 2009 through May 16, 2016, as the offense date for counts one and two, and March 23, 2016, as the offense date for count twenty-four. In light of these discrepancies, we remand the matter to the trial court for the correction of the UCO to reflect the correct offense dates. We further instruct the Clerk of Court for the 24th Judicial District to transmit the corrected UCO to the officer 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.

DECREE

Based on the foregoing, we find that defendant's guilty pleas, his multiple offender stipulation, and the sentences imposed pursuant to the plea agreements do not present any issues for appeal. 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, his multiple offender adjudication, and the sentences imposed pursuant to the plea agreements. We remand the matter for correction of errors patent as noted herein. In addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      This Court has previously held that when the trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. 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 ).

      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 in a felony case, the court must personally inform defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. In the present case, the trial court misadvised defendant that the maximum penalty that could be imposed on count twenty-four was sixteen years imprisonment whereas it was actually ten years. The trial court did, however, advise defendant of the sentences that would be imposed upon acceptance of his guilty pleas. The advisement of the agreed upon sentence was 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.

      In any event, we note that the due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Louisiana law, unlike federal law, has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis. Due process requires a factual basis for a defendant's guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. State v. Smith , 09-769 (La. App. 5 Cir. 3/9/10), 38 So.3d 894, 896 n.1, writ denied , 10-843 (La. 11/5/10), 50 So.3d 812.

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