author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Gerrell WASHINGTON
    19-39
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Paula C. Marx, Louisiana Appellate Project, Post Office Box 82389, Lafayette, Louisiana 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Gerrell Washington
    Hon. Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Emily Edwards Bertholl, Assistant District Attorney, Post Office Box 503, Marksville, Louisiana 71351, (318) 240-7123, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

On June 14, 2017, Defendant, Gerrell Washington, was charged by bill of information with second degree battery, a violation of La.R.S. 14:34.1. By written motion filed on January 11, 2018, Defendant waived his right to a jury trial. On July 19, 2018, Defendant was tried by bench trial on both the present charge, second degree battery, and a charge filed in a separate docket number, cruelty to persons with infirmities. The trial court found Defendant guilty of both charges. The trial court ordered a Pre-Sentence Investigation (PSI) report and set sentencing.

On September 17, 2018, the trial court sentenced Defendant on the second degree battery conviction to eight years in the Department of Corrections, to run concurrently with the sentence imposed for cruelty to persons with infirmities. On the cruelty to persons with infirmities conviction, the trial court imposed a sentence of ten years in the Department of Corrections, with all ten years to be served without benefit of parole, probation, or suspension of sentence. Defense counsel asserted an objection and subsequently filed a written Motion for Reconsideration, alleging the sentences imposed were excessive. The trial court set the Motion for Reconsideration for hearing on October 16, 2018. After hearing argument, the trial court denied the Motion for Reconsideration.

Defendant's Motion and Order for Appeal was granted on September 24, 2018. For the following reasons that will be discussed, we affirm with instructions.

FACTS

On May 1, 2017, Defendant, a forty-three-year-old inmate, was working at the Bunkie Senior Center as part of a work release program. The victim, Ruddio Rico, age sixty-eight at the time of the incident, worked with his wife as a volunteer at the center. At trial, the victim explained that earlier that day his wife told him Defendant "cussed" at her and threatened her when she told him not to pressure wash near the cracks of the windows. According to the manager of the Bunkie Senior Center, she saw the victim walk up to Defendant and tell Defendant to never call his wife names again. The victim testified that he also told Defendant that if he ever had a conflict with his wife again, he would send Defendant back to jail. When the victim turned around and walked back to his truck, Defendant followed and asked what the victim was going to do about it. The victim turned around to face Defendant, and Defendant hit the victim in the face. The victim fell backward, and Defendant began "stumping" the victim's hands and kicking the victim in the back. Defendant stopped beating the victim when the manager yelled at Defendant to go inside. The manager estimated the attack lasted about five minutes.

According to the manager, the victim was bleeding from his face, nose, eyes, and hand, leaving a pool of blood where he lay. The manager did not see any weapons on the victim and did not hear the victim make any threats to Defendant. When asked if the victim yelled during the attack, the manager replied, "No, I mean it just happened so fast, he just turned around and Gerrell hit him with his fist."

The victim described the beating as follows:

A. He hit me right here in the eye.
Q. And you've indicated just for the record, your right eye?
A. Right eye, it's a prosthetic eye right now. And then hit me on the nose and then I have a cut on here right here. And then I fell to the ground unconscious he put his hand ... or his foot over my left hand .... And he was smashing down on my hand with foot [sic] and he was kicking me in the back several times and he kicked me in the head several times.

The victim also testified that he was 99% unconscious after he was hit. The victim described the pain he felt as being worse than his wound in Vietnam. The victim was transported by ambulance to Bunkie General Hospital, where he was then transported by helicopter to Shreveport. When asked to describe the victim when she saw him at the hospital, the victim's wife stated, "He was real bad off, he was bleeding from the eye and his hand and then he was ... his eye was all bruised and it was horrible." The victim stayed at LSU Medical Center in Shreveport for about seven days.

As a result of Defendant's attack, the victim lost his right eye and some teeth.

The victim continues to suffer from blurred vision in his left eye, memory loss, and headaches. As a result of injuries to his left hand, the victim underwent two surgeries and still suffers from pain in his hand. The doctor in Shreveport initially tried to save the victim's right eye but a few days later decided it was best to remove it. The victim did not have facial reconstruction surgery since it would have interfered with other problems. After counsel noted the victim was currently walking with a cane, counsel asked if the victim walked with a cane on the day of the incident. The victim responded:

A. No.
Q. Is your reason for walking with a cane a direct result of the beating?
A. No [sic] a direct result with the beating because I had tremendous back surgery which you cannot return for sure sure [sic] if that indicated some of the cause.

In his defense, Defendant presented the testimony of one officer regarding a voluntary statement he received from an eye-witness. The witness stated that he saw "a white male elderly man push Gerrell, Gerrell then punched him in the face, the police were then called." Additionally, the victim's wife testified that when she told her husband (the victim) about her run-in with Defendant, her husband said that it did not sound like Defendant. Defendant testified that on the day in question, he was having an issue with the victim's wife trying to supervise him. When Defendant discussed the issue with his real supervisor, the victim's wife got upset and left. Shortly thereafter, Defendant testified, the victim drove up, slammed his car door, walked up to Defendant, and pushed Defendant in the chest. The victim threatened to "plant" Defendant "in the ground" if he ever called his wife a "b-i-t-c-h" again. Defendant testified that the victim followed him and tried to grab his shirt. Defendant further testified that he automatically "went on defense" and hit the victim. Defendant denied jumping or "stumping" the victim.

Defendant testified that he was approved for the work release program because of his "outstanding disciplinary jacket." According to Defendant, he had "no violence in [his] jacket" in almost twenty years of incarceration. On cross-examination, Defendant testified that he participated in the sport of boxing while in prison.

After hearing the evidence presented, the trial court found Defendant guilty of both offenses, ruling as follows:

BY THE COURT:
I thank you for your presentations of evidence here today. And really in two separate charges and I will address them separately.
Second Degree Battery is defined by Louisiana Revised Statute 14:34.1, second degree battery is a battery when the offender intentionally inflicts serious bodily injury. The evidence presented here today it is abundantly clear that the State met it's [sic] burden of proof the defendant is guilty as charged of second degree battery. The victim Mr. Ruddi Rico sustained very severe injuries to his left eye and lost the left eye, has a prosthetic eye today, severe damage to his right vision. He has damage to his face, damage to his nose and lots of bleeding, lots of pain, loss of teeth and has memory problems all as a result of the and as a consequence of the beating that was inflicted upon him by Gerrell Washington on May 1st, 2017.
This court has not considered if a defense to the charge that anybody exercised any authority over anybody, the series of events are most regrettable that occurred that day. Regrettable as they may be the consequence and the results that occurred are clear violations of the criminal statute for which there has been no defense shown in this courtroom here today.
Accordingly I find the defendant guilty as charged of Second Degree Battery based upon the events and testimony of the victim, Ms. Sherry Guillory and Officer Lee who all testified about the events that occurred that day.
As far as the next charge Cruelty to Persons with Infirmities, that statute and I'm just going to read the words that apply to today's case and it says '[c]ruelty to persons with infirmities under 93.3 of the criminal code is the intentional mistreatment by any person whereby unjustifiable pain is caused to a person who is aged.
Aged is defined in Section C as a person or individual 60 years of age or older. It is without doubt that the victim of this crime was 68 years old on May 1st, 2017.
The State has proven each and every element of this offense beyond a reasonable doubt as to each element charged in this crime, in both crimes, accordingly I find the defendant guilty as charged to both crimes by evidence beyond a reasonable doubt.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one error patent involving the sentence imposed and one error patent as to the minutes of sentencing. The error patent involving the minutes of sentencing is assigned as error and will be addressed in Assignment of Error Number Two.

At sentencing, the trial court stated the following regarding diminution of sentence:

The sentences imposed herein are not enhanced sentences as defined in our law. As required by Article 890.1 of the Code of Criminal Procedure, I hereby inform you that the crime of second degree battery to which you have been convicted is a crime of violence as defined by our law and the sentence is not subject to diminution for good behavior. Additionally, the crime of cruelty to persons with infirmities is not listed as a crime of violence in our law and the sentence on this charge is subject to diminution for good behavior.

The trial court's statement appears to be a denial of diminution of sentence for the conviction of second degree battery. "[A] trial court lacks the authority to grant or deny good time. Except where otherwise provided by law, the provisions of LSA-R.S. 15:571.3(C) are directed to the Department of Corrections exclusively, and 'the sentencing judge has no ... role in the matter of good time credit.' " State v. Braziel , 42,668, p. 12 (La.App. 2 Cir. 10/24/07), 968 So.2d 853, 861 (citing State ex rel. Simmons v. Stalder, 93-1852 (La. 1/26/96), 666 So.2d 661 ). Accordingly, Defendant's sentence for second degree battery shall be amended to delete the trial court's statement regarding diminution eligibility, and the trial court is instructed to make an entry in the minutes reflecting this amendment. See State v. Drummer , 17-790, p. 7 (La.App. 3 Cir. 6/6/18), 245 So.3d 93, 98, writ denied , 18-1139 (La. 2/11/19), 263 So.3d 413.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant asserts that the maximum eight-year sentence is excessive for the second degree battery offense because Defendant was afraid of the victim and felt threatened by the victim's verbal confrontation. The penalty provision for second degree battery provides, in pertinent part: "Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than eight years, or both." La.R.S. 14:34.1(C). Although the trial court did not impose a fine, it imposed the maximum term of imprisonment.

At the same sentencing proceeding, the trial court sentenced Defendant for cruelty to persons with infirmities to ten years in the Department of Corrections, with all ten years to be served without benefit of probation, parole, or suspension of sentence. As with the second degree battery sentence, the trial court did not impose a fine. However, the trial court imposed the maximum term of imprisonment for cruelty to a person with an infirmity, as well as the maximum amount of time to be served without benefits. As previously stated, the trial court ordered the sentences to run concurrently.

The analysis for an excessive-sentence claim is well-settled:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00) [765 So.2d 1067], 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261. "[M]aximum sentences 'are reserved for ... the most serious violations of the charged offense and for the worst kind of offender.' " State v. Cozzetto , 07-2031, p. 2 (La. 2/15/08), 974 So.2d 665, 666 (quoting State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982) ).

Sentencing Hearing

The victim's wife gave the following statement at sentencing:

What made that day any different than any other day because he took orders from (INAUDIBLE) along with all the others in the center, he mentioned he never had a problem. I prayed to God to give me strength to forgive him but I can't. My husband is a hundred per cent [sic] disabled vet and was trying to help the center get a new face lift. He destroyed my husband's life and our entire family. My husband loves to hunt and fish he took his sight, the use of his left hand, his memory loss, hearing and he broke a lot of his teeth. He has to have someone with just about all the things because it's hard for him to get around. He has to have someone with him all the time. I now pray that this court has ... take his life and sentence him to life without the possibility of parole and credit him for time served. If he doesn't get life please give him the maximum sentence without possibility of parole. This person is a repeat offender and if released he will end up killing someone due to his violence.

The trial court stated the following when imposing the sentence in the present case:

The Court considers the following sentencing guidelines under Article 894.1 of the Code of Criminal Procedure pertinent to these proceedings; to wit:
1. there is an undue risk that during the period of a suspended sentence or probation that the defendant may commit another crime;
2. the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; and,
3. a lesser sentence will deprecate the seriousness of the defendant's crime.
Additionally, the Court considers the following grounds provided in Code of Criminal Procedure Article No.: 894.1, relevant to the sentencing of this defendant, to-wit:
1. the offender's conduct during the commission of the offense manifested deliberate cruelty to the victim;
2. the offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability or ill health;
3. the offense resulted in a significant permanent injury to the victim; and,
4. the offender used actual violence in the commission of the offense.
A pre-sentence investigation report was prepared by Probation and Parole Officer, Kristin Brouillette, and same has been filed of record in these proceedings. Gerrell Washington is classified as a fourth felony offender with a previous conviction for aggravated battery on 5/1/1995 in Terrebonne Parish, Louisiana (original charge was second degree battery). The defendant's record further bears a conviction for armed robbery on 4/1/1999 which also occurred in Terrebonne Parish, Louisiana. Gerrell Washington has a pre-trial date scheduled for 10/30/2018 and a trial date scheduled for 11/13/2018 for the pending charge of battery of a correctional facility employee in Allen Parish, Louisiana (date of alleged offense 6/06/2018). The defendant's criminal history reflects a propensity for violent crime and a felony record with offenses that have not been considered for multiple offender adjudication (see pre-sentence investigation report).
The Court has taken into consideration the severity of the beating inflicted upon the victim, Ruddie Rico, and the permanent physical injury that has resulted to him. The Court has further considered the great pain and suffering that Mr. Rico has endured by virtue of the defendant's criminal conduct, the significant cost of medical expenses attendant thereto, the need for continuing and future medical treatment for Mr. Rico and the permanent loss of eyesight suffered by him. The Court recognizes that under the factual situation presented at bar that the defendant may have felt personal anger from the circumstances arising in his work release environment. However, those personal feelings do not justify by any means whatsoever the cruel and severe beating inflicted upon the physical-ill [sic], sixty-eight-year-old victim. As required by the cruelty to the infirmed statute ( La.R.S. 14:93.3 ), the evidence presented at trial supports a finding beyond reasonable doubt that the victim, Ruddie Rico, was a person with infirmities and of advanced age, who was subject [sic] to intentional mistreatment by Gerrell Washington that resulted in unjustifiable pain and suffering to Mr. Rico.
... Without any question and beyond any reasonable doubt, the trial evidence supports a finding that the acts of cruelty inflicted upon the victim, Ruddie Rico, were both intentionally and maliciously committed by Gerrell Washington. Accordingly, the defendant is ordered to serve ten (10) years in the custody of the Department of Corrections with the State of Louisiana with all ten (10) years of the sentence imposed being without benefit of probation, parole or suspension of sentence; the defendant is further awarded credit for time served since arrest for this offense.
Second degree battery is defined as follows, to-wit:
" La.R.S. 14:34.1 : Second degree battery
A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury; however, this provision shall not apply to a medical provider who has obtained the consent of the patient."
Serious bodily injury is defined as a bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. The evidence presented at trial supports a verdict of guilty to the charge of second degree battery as the battery committed by the defendant, Gerrell Washington, upon the victim was intentional and the victim suffered serious bodily injury. Serious bodily injury in this case involved extreme physical pain, protracted and obvious disfigurement and impairment/permanent loss of eyesight for Mr. Ruddie Rico with a need for a prosthetic eye.
... Accordingly, and because of the intentional infliction of such extremely serious bodily injury upon the victim in this case, the Court imposes a sentence of eight (8) years in the custody of the Department of Corrections for the State of Louisiana, with credit for time served since arrest for this offense, said sentence to run concurrent with the sentence imposed this date in Criminal Docket No.: 200,824 on the charge of cruelty to the infirmed.

At the hearing on the motion to reconsider sentence, the trial court denied the motion, reasoning as follows:

BY THE COURT:
All right. And I thank you both. I do appreciate the opportunity to revisit and reconsider the situation. If memory serves me correctly and I think it does I think this particular case involved some very, very serious injuries, in fact permanent injuries which the victim lost eye sight and has underwent surgeries in fact multiple surgeries and large hospital bills and his life is forever ... it will never be the same; 68 years or whatever age he was. I mean his life is impacted so negatively and the injury to him was so great his life will never be the same.
I just under the circumstances I thought the court was very lenient, very gracious and very kind when I did not impose consecutive sentences for what happened. And although I had the discretion under the law and could have those sentences run consecutively, chose not to run them based on the circumstances, it all alleged[ly arose] out of the same occurrence and the same situation.
I have given consideration to that fact in the initial sentencing and I did not overlook the fact that it involved a single event and a single hitting as has been argued here today. I find that the motion is without merit and there are no legal grounds for the court to grant the reconsideration, in fact I do think full benefit was granted and my latitude begs the positions that the event was a singular event and a single hitting. When I imposed sentence and made sentence run concurrent in this case instead of consecutive, even in light of the serious nature of the injuries and the permanent injuries that were inflicted as a result of the beating that was inflicted in this case.
The Motion is denied.

Defendant's Argument in Brief

Defendant argues the trial court's imposition of the maximum sentence was excessive in this case. Defendant claims he was afraid of the victim and hit the victim only once after the victim pushed him and threatened to "plant him in the ground." Defendant further argues the trial court failed to give sufficient weight to the victim's threat "to plant Defendant in the ground," especially since the victim was a hunter. Additionally, Defendant claims he had a non-violent prison record for almost twenty years prior to the offense at issue. Finally, Defendant asserts no dangerous weapon was used; the injuries, although serious, occurred in a single event; the abuse was not on-going, Defendant is remorseful; and the action is not likely to reoccur.

Defendant cites several cases wherein lesser sentences were imposed for similar or worse conduct. In State v. McBride , 00-422 (La.App. 3 Cir. 11/15/00), 773 So.2d 849, writ denied , 01-294 (La. 2/8/02), 807 So.2d 858, the defendant was sentenced to four years and ten months imprisonment and to pay a $ 1,000 fine. The trial court suspended all but six months of the prison term and placed McBride on supervised probation. This court upheld the sentence, noting the victim sustained a significant injury (a cut throat which damaged his jugular vein and thyroid blood vessels), McBride committed other crimes against the victim for which he had been found guilty, McBride used a dangerous weapon, and McBride had a previous conviction for arson in 1974. McBride , 773 So.2d at 852, 864-65.

In State v. Francisco , 10-881 (La.App. 3 Cir. 2/2/11), 55 So.3d 995, the defendant was sentenced to five years at hard labor for second degree battery committed against his girlfriend. Five years was the maximum sentence a defendant could receive for second degree battery at that time. Francisco beat the victim on the side of her head and face, dragged the victim by her hair, and slammed the victim into the door frame, knocking her unconscious. Id. Francisco continued kicking and punching the victim. Id. The victim suffered bruising and swelling on the left side of her face, bruising on her left arm and leg, and a broken rib. Id. In upholding the sentence, this court noted Francisco's extensive criminal history of six felonies and Francisco's numerous arrests for domestic abuse battery, trespassing, aggravated battery, stalking, and violations of protective orders. Id. This court discussed sentences imposed in other second degree battery cases:

In support of his excessive sentence claim, Defendant refers to State v. Tisby, 33,591 (La.App. 2 Cir. 6/21/00), 764 So.2d 209, writ denied, 00-2236 (La. 6/1/01), 793 So.2d 181, wherein the defendant was convicted of second degree battery and sentenced to two and one-half years at hard labor. The defendant and his girlfriend were guests at a barbeque when the defendant forcibly removed his girlfriend from the gathering and took her home. Afterwards, the victim went to the defendant's house to check on the defendant's girlfriend. When the victim tried to enter the house, the defendant swung a sling blade at him, cutting him across the face. At sentencing, the trial court noted the defendant's criminal history, which included a conviction for simple robbery, reduced by plea agreement from a first degree robbery charge, and convictions for driving while intoxicated. Also, the forty-year-old defendant was the father of three children and a high school graduate who had served three years in the military. The sentence was affirmed on appeal.
However, this court has affirmed the maximum five-year sentence for second degree battery in similar cases. Most recently, in State v. Thomas, 08-1280 (La.App. 3 Cir. 4/1/09), 7 So.3d 802, the defendant was involved in a physical altercation with the victim and stabbed him in the neck and twice in the back with a knife. On appeal, the court found that the sentence was not excessive, considering the defendant's criminal history as a second felony offender. He also had four misdemeanor convictions and approximately twenty-eight separate encounters with law enforcement agencies, fifteen of which were classified as crimes against a person. The court also found that the evidence supported the greater charged offense of aggravated battery and that a subsequent jailhouse fight wherein the defendant beat the victim demonstrated a patent lack of remorse.
In State v. Hopkins, 96-1063 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, the defendant received the maximum sentence and was fined $ 2,000 after his conviction of second-degree battery. The defendant was involved in an argument with the victim and beat her on her bare buttocks with a thick branch, leaving a four-inch bruise. In affirming the sentence on appeal, this court found that the evidence supported the greater charged offense of aggravated battery. No other aggravating or mitigating factors were addressed on appeal.
Considering the brutal beating of the victim in the instant case and Defendant's significant criminal history, we find that the trial court did not abuse its discretion when it imposed the maximum sentence. We likewise find that Defendant is clearly one of the worst offenders, for whom a maximum sentence is intended. Also, the sentence is commensurate with sentences affirmed by this court in comparable cases. Accordingly, Defendant's sentence is affirmed.

Id. at 1006-07.

State's Argument in Brief

The State asserts that the sentence imposed is not excessive:

The State asserts that this was a serious crime which resulted in permanent disfigurement to Mr. Rico. Not only did Gerrell Washington cruelly maim Ruddie Rico, he justified his actions behind the ridiculous notion that a 68-year-old man, nowhere near Mr. Washington's physical condition, would cause him, Mr. Washington, sustained fear of life. Not only did Washington deliver such a severe punch to Mr. Rico that it caused him to lose his eyeball and several teeth, he also continued to kick and stomp on Mr. Rico until he caused other permanent damage. Washington did not stop even at the point where he rendered Mr. Rico unconscious. Before the sentence the defendant showed no remorse for the permanent disfigurement he caused to a veteran, he only disrespected the court even further by yelling obscenities as he was removed from the courtroom. The State asserts that the proper analysis under La.Code of Criminal Procedure Article 894.1 was utilized by the Trial Court. These factors were all considered in the sentence imposed.

Analysis

The maximum sentence for second degree battery was increased from five years to eight years in 2014. See 2014 La. Acts. No. 722 § 1. Considering Defendant's criminal history and considering the severity and permanent nature of the injuries inflicted, we find the present case comparable to Francisco and the cases cited therein where maximum sentences were imposed, albeit five years.

In State v. Jackson , 51,575 (La.App. 2 Cir. 9/27/17), 244 So.3d 764, a four-and-one-half year sentence was imposed for a second degree battery committed when the defendant struck the female victim in the face, causing an orbital blowout fracture and a broken nose. Id. As a result of the injuries, the victim's left eye ruptured and eventually had to be surgically removed and replaced with a prosthetic eye. Id. In reviewing the excessiveness of the sentence, the court noted the defendant's criminal history, which included a racketeering conviction, a possession of cocaine conviction, and a possession of drug paraphernalia conviction. The court concluded, "In light of the permanent and devastating harm suffered by the victim, we find that the sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense." Id. at 771. Jackson committed the second degree battery two months before the maximum penalty was increased from five years to eight years. Thus, Jackson received a sentence near the maximum.

Although the trial court imposed the maximum term of imprisonment in the present case, it is clear the trial court did not impose it lightly. Furthermore, as noted by the trial court, Defendant received concurrent sentences when consecutive sentences could have been imposed. This court has stated the following regarding a sentencing court's ability to impose consecutive sentences even when the offenses arose out of the same transaction:

Considering the serious nature and violence used in the commission of the offenses, the trial court in its discretion could have reasonably imposed consecutive sentences for one or more of these offenses even though they constituted parts of a common scheme or plan. "Although Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, La.C.Cr.P. art. 883 ; State v. Underwood , 353 So.2d 1013, 1019 (La.1977), a trial judge retains discretion to impose consecutive penalties on the basis of other factors, including the offender's past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community. State v. Williams , 445 So.2d 1171, 1182 (La.1984) ; State v. Jacobs , 371 So.2d 727, 732-33 (La.1979) (on reh'g)." State v. Thomas , 98-1144, p. 1 (La. 10/9/98), 719 So.2d 49, 49.

State v. Bartie , 12-673, p. 25 (La.App. 3 Cir. 12/5/12), 104 So.3d 735, 750, writ denied , 13-39 (La. 8/30/13), 120 So.3d 256. As discussed below, the imposition of consecutive sentences was within the trial court's discretion in the present case.

As stated by the trial court, the offense committed in the present case involved significant, permanent injuries to the victim. While Defendant argues that he hit the victim only once, the police investigation shows that the victim suffered a violent and sustained beating. The exhibits introduced at trial, including original photos of the injuries sustained by the victim, are not part of the appeal record. However, copies of those photos are attached to the probable cause affidavit. The photos show significant injuries sustained by the victim to his eye and hand. The record of the 911 emergency call from the incident, referencing injuries to the victim's eye and finger, is also attached to the probable cause affidavit. In the PSI, the victim stated Defendant caused him to lose his eye and caused his hand to be paralyzed. The victim also stated that his hand is wired together, he has had back surgery, he has had memory and hearing loss, and he is responsible for reimbursing Medicare for his medical bills, which are estimated to be around two million dollars.

Additionally, according to the PSI, Defendant is classified as a fourth-felony offender, with a lengthy criminal history:

• 4/19/1993 - Pled guilty to damage to property over $ 500.
• 7/14/1994 - Pled guilty to shoplifting.
• 1/27/1994 - Arrested and later pled guilty to possession of stolen property over $ 1000.
• 1/27/1994 - Arrested and later pled guilty to reckless operation of a vehicle.
• 2/3/1994 - Arrested and later pled guilty to simple criminal damage to property.
• 5/1/1995 - Pled guilty to aggravated battery.
• 5/1/1995 - Pled guilty to possession with the intent to distribute cocaine.
• 9/26/1995 - Arrested and later pled guilty to simple criminal damage to property.
• 6/12/1997 - Arrested and later pled guilty to enter/remain in places/on land after being forbidden.
• 6/15/1997 - Arrested and later pled guilty to misrepresentation during booking.
• 4/1/1999 - Pled guilty to armed robbery.
• 4/1/1999 - Pled guilty to manufacture/distribution of CDS II
• 7/19/2018 - Convicted of second degree battery (instant offense).
• 7/19/2018 - Convicted of cruelty to persons with infirmities (instant offense).
• 3/7/2018 - Pled guilty to public intimidation.
• 6/6/2018 - Arrested for battery of a correctional facility employee.

Of particular note is Defendant's history of violent offenses, including a previous conviction for aggravated battery in 1995 and a conviction for armed robbery in 1999. In June 2018, Defendant committed a battery on a correctional facility employee, which was still pending at the time of sentencing. Thus, Defendant's propensity for violence continued even after the current offense.

When the offense at issue occurred, Defendant was on a work release program, a time during which he should have been on his best behavior. Even considering Defendant's claim that he was provoked and in fear of a sixty-eight-year-old man, the extreme beating that Defendant inflicted upon the victim while on a work release assignment shows Defendant is a danger to society. Considering this fact along with Defendant's past criminal history, the trial court could have ordered the second degree battery sentence to run consecutively to the sentence imposed for cruelty to a person with an infirmity. Nonetheless, the trial court ordered Defendant's sentence for second degree battery to run concurrently with the sentence for cruelty to a person with an infirmity. Consequently, even though Defendant's sentences are the maximum for each crime, Defendant will actually be serving only one maximum sentence when he could be serving two. Additionally, the trial court did not impose any fine even though it was permitted to do so by the penalty provision. See La.R.S. 14:34.1.

Considering the extreme injuries suffered by the victim in the present case, Defendant's criminal history, Defendant's continued propensity for violence, and the trial court's order that the present sentence be served concurrently with the offense of cruelty to a person with an infirmity, we find that the sentence imposed for second degree battery is not excessive. Additionally, the supreme court has repeatedly stated "that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case." State v. Savoy , 11-1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker , 00-3200 (La. 10/12/01), 799 So.2d 461 ; State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ; and State v. Humphrey , 445 So.2d 1155 (La.1984) ).

For the foregoing reasons, we find that this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends and the State agrees that the minutes of sentencing incorrectly reflect that the trial court ordered the sentence imposed for second degree battery to be served without benefit of probation, parole, or suspension of sentence. The transcript of sentencing shows the trial court ordered the denial of such benefits for the conviction of cruelty to a person with an infirmity but did not deny such benefits for second degree battery. If there is a conflict between the minutes and the transcript, the transcript prevails. State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we find that the minutes of sentencing should be amended to accurately reflect the sentence imposed by the trial court.

DECREE

Defendant's sentence is affirmed. However, Defendant's sentence for second degree battery is amended to delete the trial court's statement regarding the denial of diminution eligibility, and the trial court is instructed to make an entry in the minutes reflecting this amendment. The trial court is also instructed to amend the minutes of sentencing to accurately reflect the sentence imposed by the trial court by deleting the statement that the trial court imposed the sentence for second degree battery without benefit of probation, parole, or suspension of sentence.

AFFIRMED WITH INSTRUCTIONS.

      We note that the written Motion to Waive Jury filed by Defendant's counsel and signed by Defendant refers to Defendant's charge as "aggravated battery," instead of "second degree battery," the charge at issue in the present case. However, it is clear that Defendant intended to waive his right to a jury in the present case since the motion contains the docket number in the present case, and the trial court discussed the waiver with Defendant in open court.

      In a separate docket number, Defendant was charged with cruelty to persons with infirmities arising out of the same incident. Although the record does not contain a motion to consolidate, Defendant was tried in the same bench trial on both charges. Defendant's appeals of both convictions are presently before the court in separate docket numbers specifically, cruelty to persons with infirmities under appellate docket number 19-38 and second degree battery under appellate docket number 19-39.

      The maximum sentence for second degree battery increased from five years to eight years in 2014. 2014 La. Acts. No. 722 § 1.

      The record does not reflect the State's assertion that Defendant yelled obscenities at the court.


source: Caselaw Access Project

author: KYZAR, J.

license: Public Domain

text:
    STATE of Louisiana v. Victor Wayne LOYD
    18-968
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Douglas Lee Harville, Louisiana Appellate Project, P.O. Box 52988, Shreveport, Louisiana 71135-2988, (318) 222-1700, COUNSEL FOR DEFENDANT/APPELLANT: Victor Wayne Loyd
    James P. LeMoine, District Attorney, Renee W. Nugent, Assistant District Attorney, Thirty-Fifth Judicial District, 200 Main Street, Colfax, Louisiana 71417, (318) 627-2971, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, J.

Defendant, Victor Wayne Loyd, appeals his conviction for unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4. For the reasons set forth herein, Defendant's conviction is affirmed, the sentence is vacated, and the case remanded for resentencing with instructions.

DISCUSSION OF THE RECORD

On May 21, 2018, the State filed a bill of information charging Defendant with unauthorized use of a motor vehicle, in violation of La.R.S. 14:68.4. On July 5, 2018, Defendant pled not guilty and waived his right to a trial by jury. The district court heard evidence and argument on August 9 and took the matter under advisement.

The evidence adduced at trial revealed that, in September of 2017, Carol Spotsville, a relative of Defendant, made a verbal agreement with him to repair a dented area on her 2006 Hyundai Santa Fe. She agreed to have Defendant do the repair work chiefly because he was charging her a low price. Also, he told her he would have the job done by noon the next day. Defendant drove the victim's car from her house to the area he was using as a body shop. The next day, he called to tell her he could not have the car ready by noon, but that it would be ready by 3:00 p.m. She testified that she repeatedly called him after the car was not returned after 3:00 but got no answer. She did not hear from him until approximately 8:30 p.m., when she called, and he answered only to tell her he had driven the car into Alexandria and collided with another vehicle. The victim testified that Defendant was not authorized to drive the vehicle; she thought his girlfriend (his wife by the time of the trial) was going to drive it.

On August 16, 2018, the court found Defendant guilty as charged. On September 13, the court sentenced Defendant to two years at hard labor, to run consecutively to any other term. Also, he was ordered to pay a fine of seven hundred and fifty dollars and restitution to the victim. The trial court recommended work release, if available.

Defendant now seeks review by this court and assigns as a single error that there was insufficient evidence to support his conviction for unauthorized use of a motor vehicle.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, Defendant argues the evidence adduced at trial was insufficient to support his conviction for unauthorized use of a motor vehicle.

Specifically, he argues the State failed to prove beyond a reasonable doubt that his use of the victim's vehicle was unauthorized. The general analysis for insufficiency claims is well-established:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Unauthorized use of a motor vehicle is defined by La.R.S. 14:68.4(A), which states in pertinent part: "Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently." The key issue that arose at trial was whether Defendant's use of the Hyundai was unauthorized. The victim testified that he was not authorized to drive the vehicle at any time; she expected his girlfriend, Doris Loyd, to drive if there was any need. Doris and Defendant both testified that he was authorized to drive the Hyundai. Defendant testified that the victim's husband saw him drive the Hyundai when Defendant picked it up at the victim's residence. Thus, resolution of the issue, and ultimately the verdict, hinged upon a credibility determination.

The trial court explained its ruling at some length:

BY THE COURT: You can have a seat over there. Counsel, last week we had a bench trial on a charge of Unauthorized Use of a Movable, um, after the conclusion of the trial, the Court um, recessed the trial to allow me to research the jurisprudential handling of consent, which I think was the primary - - one of the primary issues in the case, was whether um, or not [Defendant], had the consent of Ms. Spotsville to use her vehicle - - her SUV uh, on the - - at the time in question.
And um, the Court uh, did - - the Court has researched the jurisprudence involving the Unauthorized Use of a Motor Vehicle, the Court has - - also received a case that was submitted by Mr. Wilson for the Court's consideration.
And the - - the jurisprudence um, the jurisprudence seems to focus on - - due to the fact that it is a crime that re - - requires intent, uh, the jurisprudence seems to focus on the Defendant's intent in connection with the consent. Um, and from a civil standpoint, I think for both parties to have an agreement, they both have to have an understanding of what is happening, they have uh, - - to form the consent, both have to have a similar understanding, and I'm not saying that doesn't exist in a criminal standpoint, but, in the context of these cases, the cases - - the court seem to have focused on what was the Defendant's intent or understanding of his use of the vehicle.
And um, I think there were - - there had been similar cases in the past, uh, one, would be State vs. Varnado , [01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191], in that particular case a uh, an employee had use of a transport van to haul employees from one location to another, and he was supposed to be back on Friday evening after transporting people to the work - - work site, and uh, he didn't make it back until Sunday evening. And uh, apparently the employer got uptight about Mr. Varnado using the van for the weekend, and uh, the Court - - the Court found there was sufficient proof of intent in that case due to the fact that the Defendant refused or failed to communicate with his employer's repeated requests or repeated attempts to contact him over that weekend period.
Uh, another case was State vs Spencer [97-811 (La.App. 5 Cir. 1/27/98), 707 So.2d 119]. Uh, in Spencer um, apparently it was a uh, test drive situation where the Defendant went to a mo - - and automobile location, and took the car for a test drive, and apparently the salesman, and the car lot didn't feel like a 24 hour test drive was reasonable under the circumstances, and um, the - - the Court seem to agree that they thought that 24 hours was kind of a long test drive for - - for their vehicle, and they - - they upheld the conviction for Unauthorized Use of a Motor Vehicle.
Um, just for purposes of findings in this case, um, the Court believes that Ms. Spotsville hired [Defendant] to perform um, repair work to her automobile. And uh, the parties had agreed that he was going to pick that vehicle up from - - from her house, and take it to his repair shop. And uh, that - - that seem[s] to be a consistent belief from all the witnesses. Uh, Ms. Spotsville testified, [Defendant] testified, and his wife testified, they were all present at the location in the parking lot where this initial discussion took place where [Defendant] was going to come pick up the vehicle. There was a further discussion at Ms. Spotsville's home where, again, it was discussed that uh, we have other engagements we're going to right now, and I'm going to come back later, and take your car to my shop, and so, I think it's clear that [Defendant] had initial um, authorization to drive Ms. Spotsville's car.
Um, the witnesses are also very consistent that these repairs were going to be completed by noon the next day. And [Defendant] has explained that he wasn't able to meet that deadline and he decided to extend how long he was going to work on the car until 3:00 PM. He did not meet that deadline, and everyone is consistent as to, that did not occur. And [Defendant] unilaterally decided to extend the deadline, and to drive her car around in Alexandria until he wrecked it around 6:30 or 7 that evening.
It is also significant that there was contact between [Defendant] and Ms. Spotsville prior to noon and prior to 3:00 PM, but, no communication from 3:00 PM until - - at some point after the wreck. Ms. Spotsville testified that she was uh, concerned about her car and repeatedly tried to contact [Defendant] from 3:00 PM until he - - she finally got a call.
I think that that is significant. I think it is significant that there was no communication by [Defendant] from 3:00 PM until after the wreck. And the reason it's significant is because I think [Defendant] knew he had exceeded his authority or had exceeded his use of her vehicle. Um, whether the reason he took the car was in the scope of his repair, I don't think it matters. He had clearly exceeded the time that everyone had agreed to, everyone had agreed to noon, I don't think Ms. Spotsville agreed to 3:00 but she didn't have much choice. She never agreed 'till[sic] 6:30 or 7:00 that PM.
COURT'S RULING
And I think it is - - whether it's 24 hours, such as in the Spencer case, or whether it's two (2) days in the Varnado case, when a defendant exceeds his permitted use of the vehicle, that is an unauthorized use of that motor vehicle, and I believe the State has met it's burden of proving beyond a reasonable doubt that [Defendant] committed an Unauthorized Use of Ms. Spotsville's vehicle on the day in question.

This court, in considering the proof necessary for a conviction for the offense of unauthorized use of a motor vehicle, has explained:

The Defendant was convicted of unauthorized use of a motor vehicle, which is "the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently." La.R.S. 14:68.4.
In State v. Joseph , 05-368 (La.App. 5 Cir. 1/17/06), 921 So.2d 1060, the fifth circuit discussed unauthorized use of a motor vehicle as follows:
This Court, while acknowledging that there are few published cases interpreting La. R.S. 14:68.4, has found the jurisprudence interpreting La. R.S. 14:68 (prohibiting the unauthorized use of a movable) instructive since the two statutes proscribe the same conduct. See: State v. Varnado , 01-367, p. 4 (La.App. 5th Cir. 9/13/01), 798 So.2d 191, 193 ; State v. Spencer , 97-811, pp. 6-7 (La.App. 5th Cir. 1/27/98), 707 So.2d 119, 120.
In State v. Bias , 400 So.2d 650, 652-653 (La.1981), the Louisiana Supreme Court clarified the meaning of La. R.S. 14:68 as follows:
A person commits the crime of unauthorized use of a movable when he either takes or uses another's property without the owner's consent or by means of fraudulent practices. [Louisiana Revised Statutes] 14:68, although not requiring that a person act with an intent to deprive the owner permanently of his property, must reasonably be construed to require the existence of fraudulent intent. See: State v. Kelley , 241 La. 224, 128 So.2d 18 (1961). If the statute were construed otherwise, every breach of a rental contract would be included within the reach of the statute, and the Legislature certainly did not intend such a result.
....
[La.]R.S. 14:68 may be violated by a taking or use either without the consent of the owner or by means of fraudulent conduct, practices, or representations.
....
... [W]e construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the "evil" state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another).
Id. at 1063-64.
In brief to this court, the Defendant asserts that the entire case rested on Drewitt's questionable credibility. The Defendant asserts that Drewitt conveniently omitted the terms of the loan of his truck and never testified that it was for a specified time or when he expected it to be returned. The Defendant points out that Drewitt never testified that the truck was kept longer than the agreed upon time and, when Drewitt initially talked to police, the Defendant did not have Drewitt's truck.
The Defendant further points out that Drewitt testified that a neighbor "supposedly" chased him with a gun. The Defendant asserts that it would seem Drewitt would be able to say whether someone chased him with a gun, and if he had been chased with a gun, he would have reported it to police. The Defendant asserts that he did not initially take the truck, so the question then becomes, was there an agreement as to when it was to be returned and, if so, what was the agreement.
The Defendant then asserts that if Drewitt did not testify to or perhaps recall the agreement, the State did not meet its burden of proof. The Defendant further argues that his request for money in exchange for the return of the truck did not indicate a taking. The Defendant asserts that in light of the events surrounding the loan of the truck, the request for money is far more indicative of the use of the truck as collateral so that Drewitt would be fronted drugs.
We find that the Defendant had Drewitt's permission to use the truck while Drewitt was at the Defendant's residence; however, Drewitt testified that when he was forced to leave the Defendant's residence, he made it clear that he wanted his truck back and the Defendant was no longer permitted to use it. Charles returned the truck to the Defendant and later saw the Defendant drive the truck. The Defendant then called Drewitt on November 19, 2005 and stated he would return the truck if Drewitt paid him two hundred dollars. Additionally, Drewitt was driving the truck when he encountered the police and fled the scene upon exiting the vehicle. We find that flight by the Defendant was indicative of his guilty knowledge that he was not authorized to use the truck. See State v. Dunbar , 07-219, p. 8 (La. 2/26/08), 978 So.2d 899, 904.
The verdict indicates the jury chose to believe Drewitt's testimony that the Defendant did not have permission to use the truck after Drewitt left the Defendant's residence and that credibility determination should not be second guessed by this court. State v. Hatch , 06-1587 (La.App. 3 Cir. 6/6/07), 964 So.2d 394. Based on the evidence presented, we find that the State proved beyond a reasonable doubt that the Defendant drove Drewitt's truck without Drewitt's permission. Accordingly, the Defendant's conviction for unauthorized use of a motor vehicle is affirmed.

State v. Baylor , 08-141, pp. 9-12 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, 807-08, writ denied , 09-275 (La. 11/20/09), 25 So.3d 795.

In light of the rationale of Baylor and our standard of review as per Kennerson , the verdict herein is affirmed. As noted earlier, this case hinged upon credibility, and a determination regarding credibility is within the province of the factfinder. In this case, the trial court heard the testimony and chose to believe Ms. Spotsville and not Defendant or his witness, wife Doris Loyd. In addition, similar to the defendant's flight in Baylor , Defendant here fled the scene of the accident in Alexandria, which can be construed as evidence of guilty knowledge on his part. As further noted by the trial court, Defendant's failure to contact Ms. Spotsville after 3 p.m., or answer her calls until their contact by phone hours later after he totaled her vehicle, can also be construed as guilty knowledge on his part. It is also clear under our law that the testimony of one witness, the victim in this case, if believed, and absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. State v. Pierre , 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d 348, writ denied sub nom. , State ex rel. Pierre v. State , 15-1151 (La. 5/13/16), 191 So.3d 1054. There are no such internal contradictions or irreconcilable conflicts here. For these reasons, the assignment of error lacks merit, and Defendant's conviction is affirmed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent which we find harmless and one error patent which requires Defendant's sentence be vacated and the case remanded for resentencing.

The record contains no written waiver of Defendant's right to trial by jury as required by La.Code Crim.P. art. 780. Defendant was charged with unauthorized use of a motor vehicle, a relative felony, as it carries the potential for imprisonment with or without hard labor for not more than two years when the value of the vehicle exceeds one thousand dollars. La.R.S. 14:68. "A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict" and "a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable." La. Const. Ann. art. I, Sec. 17. "The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial" and "shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel." La.Code Crim.P. art. 780

In State v. Bell , 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, a different panel of this court held that the absence of a written waiver of jury trial, as required by La.Code Crim.P. art. 780, was harmless error where the defendant and his counsel were in open court when the judge addressed the defendant's right to a jury trial and his waiver thereof. The current version of La.Code Crim.P. art. 780 providing for a written waiver of the right became effective on July 17, 2013. Prior thereto, the article required only that a defendant knowingly and intelligently waive a trial by jury and elect to be tried by the judge, at the time of arraignment, and that the court inform the defendant of his right to waive trial by jury. Prior to the enactment of the current version of La.Code Crim.P. art. 780, there was no absolute method required for a waiver of a defendant's right to a jury trial.

Although it remains the preferred method for the district court to advise a defendant of her right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. See La.C.Cr.P. art. 780 ; State v. Kahey , 436 So.2d 475, 486 (La.1983) ; State v. Muller , 351 So.2d 143, 146-47 (La.1977). Likewise, it is preferred but not necessary, for the defendant to waive her right to jury trial personally. State v. Wolfe , 98-0345, pp. 6-7 (La.App. 4th Cir. 4/21/99), 738 So.2d 1093, 1097. Counsel may waive the right on the defendant's behalf, provided that the defendant's decision to do so was made knowingly and intelligently. Id. ; Kahey , 436 So.2d at 486-87.
In the instant case, the record reflects that counsel waived a jury trial on the defendant's behalf. On the second day of trial, the district court memorialized the defendant's earlier waiver in her presence. At this time, defense counsel stated that he and his client had discussed the waiver at length and on several occasions, and that both agreed to the waiver. In these circumstances, the court of appeal erred in its determination that the defendant did not waive her right to a jury trial knowingly and intelligently.

State v. Pierre , 02-2665, pp. 1-2 (La. 3/28/03), 842 So.2d 321, 322

When the trial judge does not follow the preferred method, an appellate court may nevertheless conduct a de novo review of the record to ascertain whether the defendant was advised of his or her right to jury trial; whether the defendant was present when his or her counsel elected a judge (bench) trial; and, if he or she was present, whether he or she voiced any objection to the election. See State v. Denson , 11-0517, pp. 7-8 (La. App. 4 Cir. 1/25/12), 83 So.3d 1183, 1188-89 ; State v. Santee , 02-0693, p. 3 (La. App. 4 Cir. 12/4/02), 834 So.2d 533, 535.

State v. Mahogany , 17-377, p. 24 (La.App. 4 Cir. 7/26/17), 225 So.3d 489, 506-07, writ denied , 17-1416 (La. 5/18/18), 242 So.3d 1225.

In this case, Defendant was present in open court for arraignment on July 5, 2018 when his counsel waived formal reading of the bill of information and entered a not guilty plea. Immediately thereafter, Defendant's counsel requested a judge trial, in Defendant's presence. While there is no record of the trial court having advised Defendant at arraignment of his right to jury trial, Defendant was represented by counsel and voiced no opposition to the request for a bench trial. Further, at the actual trial, Defendant acknowledged before the trial judge in open court that he and counsel discussed, prior to the arraignment, his right to jury trial and the reasons for the decision to waive that right. We additionally note that Defendant was not inexperienced in the criminal process; the record reflecting an extensive arrest history and a previous conviction for felony theft of a motor vehicle, the offense for which he was on probation at the time of this trial. Thus, like the defendant in Pierre , Defendant's acknowledgement of the right to a jury trial and his reasons for choosing to waive such, albeit during trial, is sufficient to show a knowing and intelligent waiver. Further, Defendant requested the waiver of his right to jury trial, did not object to the granting of the waiver, and did not assign as error or argue the jury waiver issue on appeal. State v. McKeel , 13-855 (La.App. 3 Cir. 2/12/14), 153 So.3d 1029. Accordingly, we find that any error as to failure to file a written waiver of Defendant's jury trial right and election of a bench trial to be harmless under these circumstances.

We further find that in sentencing Defendant, the trial court failed to set the amount of restitution to be paid to the victim. Specifically, the trial court stated:

Order that you pay restitution to Ms. [Spotsville] for the monetary amount that she paid you, and as well as any out of pocket expenses that were not covered by insurance. Court will allow you to res - - reserve the right to a restitution hearing if you and your par - -probation or parole officer cannot agree on that amount.

In State v. Fussell , 06-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, restitution was imposed pursuant to La.Code Crim.P. art. 883.2, as it was in the instant case. On error patent review, this court found the defendant's sentence was indeterminate due to the trial court's failure to set the amount of restitution. The trial court stated in pertinent part:

I'm also gonna[sic] order you to pay all restitution involved with respect to - - if there is any - - I order you to pay for any and all medical counseling and health expenses incurred by the victim or her family, as a consequence of your conviction for these offenses. That's also gonna[sic] be - - it's an indetermined amount, it's just gonna be generally made in the judgment. I don't know what it's gonna be. I don't even know if the State's gonna[sic] make an application for that.
....
And I've already ordered you to pay for any and all medical counseling or other health expenses incurred by the victim or her family as a consequence of your commission of those particular offenses in that case.

Fussell , 941 So.2d at 139.

This court vacated the defendant's sentences and remanded the case for resentencing with the instruction that if restitution was imposed, the trial court must specify the amount.

The supreme court agreed, stating:

We agree with the Third Circuit Court of Appeal that, due to a nonspecific restitution order, the sentences imposed upon Defendant by the trial court were indeterminate and, thus, invalid. See La C.Cr.P. art. 879 (stating that "[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence"); La.C.Cr.P. art. 883.2. Accordingly, this case must now be remanded for resentencing on all convicted counts.

State v. Fussell , 06-2595, p. 25 (La. 1/16/08), 974 So. 2d 1223, 1238 (footnote omitted).

Louisiana Code of Criminal Procedure Article 883.2 provides in pertinent part:

A. In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.
....
C. The court shall order that all restitution payments be made by the defendant to the victim through the court's designated intermediary, and in no case shall the court order the defendant to deliver or send a restitution payment directly to a victim, unless the victim consents.
Text of par. D effective until August 1, 2019.
D. Notwithstanding any other provision of law to the contrary, if the defendant is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court may order a periodic payment plan consistent with the person's financial ability.
Text of par. D effective August 1, 2019 .
D. Notwithstanding any other provision of law to the contrary, if the defendant is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court may order a periodic payment plan pursuant to the provisions of Article 875.1.

Accordingly, Defendant's sentence is vacated and the case remanded for resentencing in accordance with La.Code Crim.P. art. 883.2 with instructions that if restitution is imposed, the amount must be specified.

DECREE

Defendant's conviction is affirmed. The sentence is vacated and the case remanded for resentencing in accordance with La.Code Crim.P. art. 883.2 with instructions that if restitution is imposed, the amount must be specified.

CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED FOR RESENTENCING WITH INSTRUCTIONS.

      While the victim testified that Defendant provided the information about the accident in response to her call, Defendant stated that he called the victim some 30 minutes after the accident to tell her what had occurred.

      Although the supreme court agreed with this court's ruling on this issue, it reversed this court on other grounds.