author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Gregory TRUVIA.
    No. 2009-KA-0504.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.

      Leon A. Cannizzaro, Jr., Distinct Attorney of Orleans Parish, Andrew M. Pickett, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

STATEMENT OF THE CASE

liThe defendant Gregory Truvia was charged by grand jury indictment on May 31, 2007, with first degree murder, a violation of La. R.S. 14:30. The defendant pleaded not guilty and not guilty by reason of insanity at his June 13, 2007 arraignment. He was found competent to proceed on April 8, 2008. The State amended the indictment on September 25, 2008 to reflect the charge of second degree murder. On December 10, 2008, the two-day trial ended with the defendant being found guilty as charged by a twelve-person jury. On January 22, 2009, the defendant was sentenced to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence.

FACTS

The defendant was charged with and convicted of second degree murder for the April 8, 2007 killing of his mother, Arthe-rine Williams.

One of the defendant’s assignments of error on appeal is that the evidence is insufficient to support his conviction for second degree murder, because he proved by a preponderance of evidence that he was insane at the time of the commission of the crime.

|2New Orleans Police Department Senior 911 Dispatcher Andrea Taylor identified an audiotape of a 911 call, which was played for the jury.

Jamie Pichón testified that on April 8, 2007, she was living in a Federal Emergency Management Agency trailer on the campus of Southern University of New Orleans. Ms. Pichón woke up that morning to a loud moaning noise. She looked outside of her trailer to see the man who lived next door, dragging what she believed was a moaning person or an animal. The man dragged the object into his trailer. Ms. Pichón text-messaged her mother to telephone 911, because she was afraid if she did so the man would hear her.

Forensic pathologist Dr. Richard Tracy autopsied the victim. She suffered minor injuries scattered over the body and serious injuries to her face. She had bruises, swollen bruises, swollen black eyes, ragged cuts of the kind one gets from a club-like object, and sharply incised cut edges with the absence of much of the tissue from the area. The cause of death was blunt force tears and sharply incised injuries to her face. The victim’s tongue had been torn almost completely out, and the blood loss from that injury was the biggest contributor to her death.

New Orleans Police Department Officer Nakeisha Barnes and her partner, Officer Gregory Gavins, responded to a call at approximately 4:00 a.m. on April 8, 2007, at the SUNO trailer site on Pelopidas Street. The officers knocked on the door of the defendant’s trailer. The defendant appeared shirtless and covered in blood. The defendant stepped out onto the trailer staircase after being ordered several times to do so. He refused commands to put his hands up. The defendant stumbled coming down the steps and fell to the ground. He resisted being handcuffed by Officer Gavins. Officer Barnes attempted to assist, but the defendant turned and began coming in the officer’s direction. She emptied a can of ^chemical spray at defendant, but it had no effect on the defendant at all. She estimated the struggle with defendant lasted seven minutes, and he was not subdued until other units responded. The victim was sitting upright in the trailer in a slumped over position in a pool of blood. She was unresponsive. Officer Barnes identified photographs of the crime scene.

United States Secret Service Agent Greg Gavins testified that on April 8, 2007, he was a New Orleans Police Officer and working that night with Officer Barnes. He recalled that the victim was nude, sitting in the trailer with her head slumped down, facing away from the front door. Agent Gavins’ testimony essentially tracked that of Officer Barnes with regard to the officers’ interaction with defendant. Agent Gavins said he too exhausted his can of pepper spray on the defendant and that it did not appear to have an effect on him. He and the defendant fell while struggling, and Agent Gavins was able to get one handcuff on him. Inside the trailer, Agent Gavins observed various pieces of flesh on the floor and pieces of teeth on the sofa. The agent confirmed on cross examination that the defendant made no attempt to elude the officers or run from them.

New Orleans Police Homicide Detective Harold Wischan investigated the homicide. He observed what appeared to be drag marks coming from a ditch behind the trailer towards defendant’s trailer. He observed articles of female clothing on the steps leading to the trailer. The victim was sitting upright in a pool of blood, with her shoulders rolled forward and her head hanging forward. A fire extinguisher with blood on it was inside the trailer. Detective Wischan identified photographs and physical evidence recovered from the scene.

Howard Williams, the defendant’s brother, testified that the victim was sixty-seven or sixty-eight years old at the time she was killed. She had a stroke a |4few months before her death. The defendant provided her with assistance after that stroke.

Earl Truvia, another of the defendant’s brothers, testified that their mother and the defendant always had a beautiful relationship. The victim had been living in Texas and had only come to New Orleans on April 7, 2007, the day before she was killed. She came because she was concerned about the defendant’s situation. The defendant had been living in the trailer for around three weeks. Earl took the defendant from Texas. The defendant spent the night at Earl’s house, and then Earl brought him to the trailer. He would visit the defendant occasionally, and Earl said everything was okay until he received a telephone call from the defendant on April 5th or 6th, and he told Earl he did not want to live. Earl went to the defendant’s trailer and talked with him that night. Earl and his wife once took the defendant to University Hospital because the defendant said he had a stinging feeling running through his body and complained that he was hearing voices. They waited at the hospital for three hours, but left before the defendant was examined, after the defendant said he was all right.

Earl stated on cross examination that the defendant was normal when he was living in Texas with their mother, and he changed only after living in the trailer in New Orleans. Earl also admitted that he, Earl, had been removed from the family dynamics for twenty-seven years prior to 2003. Earl said that on the night before the killing, when he left the defendant and their mother, which was around 11:00 p.m., defendant was “okay.”

Dr. Sara Deland, a forensic psychiatrist, testified that when she first met with the defendant for the first time in early June 2007, he was “overtly psychotic.” He primarily had thought disorganization, and he reported that he was hearing voices, |swhich Dr. Deland confirmed was consistent with someone overtly psychotic. She noted that the defendant was kind of disheveled and mainly stared at the floor or off into space, making very poor eye contact. The defendant was not taking any psychiatric medication at that time, but she thought he needed to be. She stated that the defendant appeared to be much better when she saw him a second time after he had been placed on anti-psychotic medication. He appeared even better on her third visit with him. She only saw him for forty-five minutes on the first visit, because he was having trouble focusing and responding. The subsequent visits were from between one and two hours.

Dr. Deland reviewed the defendant’s arrest record, medical records from three hospitals and Orleans Parish Prison, and a limited report from the Seafarer’s Union about the defendant’s past employment. She also spoke with all of his brothers and sisters, and a couple of longtime family friends. She noted that in February 2007, the defendant visited Delgado Clinic, complaining that he was stinging all over his body and worrying that he might have syphilis. Records from Delgado indicated he did not have any kind of sexually transmitted disease. When the defendant went to a hospital in Dallas right befoi'e he returned to New Orleans, he also complained of stinging all over his body and that he had syphilis. She said he did not have syphilis that time either, and that “to this day” the defendant continues to believe he has syphilis.

Dr. Deland testified that the defendant described a jolt of electricity that went through his body in Dallas, and that was how he knew he had some type of sexually transmitted disease. Dr. Deland stated that she had heard things like that before from psychotic patients. She said Orleans Parish Prison records showed that the defendant was kept in five-point restraints for two days, which, she said, | fiwas a serious matter. He reported to the psychiatric nurse at Parish Prison that he had been hearing some voices in the trailer before he was arrested. He was not hearing voices on the day the doctors at the prison saw him, and he was given a diagnosis of adjustment disorder with depressed mood, with a note of a major depression with psychotic features. Dr. Deland explained that in some people, when their depression is extreme, they have psychotic symptoms that go along with it, such as voices that tell them they are no good and to kill themselves. The person has a belief that he or she is a bad person and that they are going to die. She noted that in later notes from Parish Prison defendant reported that the voices had started up again, and significant improvement was noted after they gave him anti-psychotic medication. Dr. Deland stated that the defendant was in Southeast Louisiana State Hospital for approximately six months when he was sixteen years old, his first report of psychiatric problems. The defendant related that he was treated there with Haldol and Thorazine, which she said were both anti-psychotic medications.

Dr. Deland stated that she diagnosed the defendant with something called psychotic disorder not otherwise specified. She said that basically meant the defendant has some psychotic symptoms. She suspected that the defendant suffered from schizophrenia, but that she would want to see him over a longer period of time to make that diagnosis. Dr. Deland was asked whether, with reasonable medical certainty, because of the defendant’s symptoms and his mental defect at the time of the offense, the defendant was not able to distinguish the difference between right and wrong. She replied in the affirmative.

Dr. Deland conceded on cross examination that the defendant having had sex with street people on a regular basis could have made him suspect that he had a 17sexually transmitted disease. But, she noted that the defendant believed it even after being told several times that he did not have any such disease. She conceded that marijuana was detected in the defendant’s blood at University Hospital two to three hours after he was arrested for the crime. However, Dr. Deland stated that it was her opinion the defendant had a psychotic disorder in addition to using any illegal substances. Dr. Deland conceded that the defendant could have been depressed and suicidal because of what he did to his mother. She also conceded that drugs, anger, rage, or revenge could cause someone to behave in a violent manner. Dr. Deland was asked about the defendant reportedly crying during the killing of his mother, and whether that indicated knowledge, intent or awareness. She said that was possible.

Dr. Deland confirmed on cross examination that blood tests done on the defendant at University Hospital after his arrest showed no barbiturates, phenosodiapans, cocaine, opiates, amphetamines or and PCP. Dr. Deland was questioned on redirect examination about the effect of a marijuana cigarette laced with formaldehyde (embalming fluid), and she conceded that its effects would be about the same as PCP — a short-term break with reality and psychotic symptoms, problems with perception, extreme paranoia and agitation and violence.

Before Richard Richoux, M.D. and Ralph Salcedo, M.D. — the two physicians composing the court-ordered sanity commission testified — defense counsel objected to both them testimony and them report on the ground that he did not receive then-report until the first day of trial. The trial coui-t denied the motion, noting testimony that the delay was caused by the delay in the delivery of defense expert Dr. Deiand’s report.

| ¡^Forensic psychiatrist Dr. Richoux testified that he and Dr. Salcedo first examined defendant on February 7, 2008, to determine his competency to proceed. They examined him on May 8, 2008, to determine his state of mind at the time of the offense. Dr. Richoux identified two reports by himself and Dr. Salcedo, one addressing the defendant’s competency to proceed and the other addressing the defendant’s state of mind at the time of the offense.

As to the defendant’s competency to proceed and assist with his defense, Drs. Richoux and Salcedo found no evidence that defendant was suffering from any clear-cut mental disorder. They ruled out a psychotic disorder, noting that at the time they examined him he was on anti-psychotic medication. Dr. Richoux said either there had been psychotic symptoms and they were being controlled or had been put into remission with the medication, or there had been no psychotic symptoms to begin with. The doctors also included marijuana and cocaine use in their diagnostic impressions, with institutional remission, meaning that because the defendant was institutionalized he presumably could not get drugs and was not using them. The doctors found the defendant demonstrated a clear understanding of the legal proceedings.

As to the issue of sanity at the time of the commission of the offense, Drs. Ri-choux and Salcedo reviewed the defendant’s rap sheet, New Orleans Police Department records, the defendant’s medical records from Orleans Parish Prison and Delgado Clinic, and the report by defense expert Dr. Sara Deland. Dr. Richoux said there were some inconsistencies between what the defendant told them during the first examination and the second examination, indicating some untruthfulness on the part of the defendant. Dr. Richoux noted that the police report stated that the defendant’s brother Earl had essentially reported that when he ^dropped their mother off at defendant’s trailer at 11:00 p.m., approximately five hours before the murder, the defendant was in good spirits and showed no signs of being distraught in any way. He said this time frame was of great significance in determining the defendant’s state of mind at the time of the offense. Dr. Richoux said that if an individual develops psychotic symptoms within a period of five hours, the vast majority of the time that does not have to do with a mental illness, but drug intoxication. He said that typical forms of mental illness such as schizophrenia and other forms of psychoses that have nothing to with drugs develop much more gradually over a period of time. Dr. Richoux stated that one possibility was that the defendant was in a rage — nothing to do with psychoses. Dr. Richoux stated that the defendant did not begin taking anti-psychotic medication after killing his mother until he had been in Parish Prison for two months. He noted several notes by psychiatric staff at the prison indicating no evidence of psychoses during that period of time.

Dr. Richoux was shown a medical record from Parish Prison that reflected “chronic illness, psychoses, NOS.” He said “NOS” meant “psychoses not otherwise specified.” Id. This meant that the writer believed the defendant had psychoses, but did not know from what cause. Dr. Richoux said the defendant was placed in five-point restraints within a few days after his incarceration because he was voicing suicidal thoughts. Dr. Richoux listed a number of drugs he said have the ability to produce psychotic symptoms: LSD, PCP, ecstasy, marijuana cigarettes dipped in formaldehyde, and sometimes cocaine. He was aware that there was no detectible level of PCP, barbiturates, penzadiapines, cocaine, opiates or amphetamines in his system at the time of the crime. He noted that there was marijuana in the defendant’s system, but admitted that marijuana by itself |1()generally would not lead one to engage in the activity the defendant allegedly engaged in. Dr. Richoux admitted he did not see the defendant prior to him beginning to take anti-psychotic drugs.

Drs. Richoux and Salcedo did the examinations of the defendant together, and the exams lasted approximately forty minutes. Dr. Richoux said that he did not interview any of the defendant’s family members nor anyone else who might have had an opportunity to observe the defendant. He also said that he had read in other documents that the defendant’s brother Earl had taken him to the hospital the night before the killing because the defendant was hearing voices and feeling a tingling all over his body. Dr. Richoux said it was “extremely, extremely unlikely” that that night before the killing was the beginning of a schizophrenic incident. Dr. Richoux also said that as best as he could determine, the defendant apparently was taking the anti-psychotic medication from at least June 2007 until May 2008, when he and Dr. Salcedo examined the defendant for sanity at the time of the offense.

On redirect examination Dr. Richoux spoke about a marijuana cigarette laced with formaldehyde, called a “clickum.” He said the defendant was not tested for the presence of formaldehyde, and he was not sure if it could be tested for in any reliable way. He stated that a clickum frequently produces psychotic symptoms, and that he had seen at least one hundred people psychotic as a result of smoking clickums. Commenting on the defendant’s reported crying during the time of the offense, Dr. Richoux stated that could be an implication that this person is upset by his actions and therefore probably understands that what he is doing or did was wrong. He disagreed with Dr. Deland’s conclusion that there was a functional mental illness that caused the defendant to be insane at the time of the offense. It was stipulated that if Dr. Salcedo, an expert forensic psychologist, were [^called to testify his opinions and testimony would be consistent with Dr. Richoux’s.

ERRORS PATENT

A review of the record reveals no patent errors.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the evidence was insufficient to sustain the defendant’s conviction, in that viewing all the evidence in a light most favorable to the prosecution, no rational trier of fact could conclude beyond a reasonable doubt that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.

This Court set forth the applicable law on the insanity defense in State v. Currie, 2000-2284 (La.App. 4 Cir. 2/13/02), 812 So.2d 128, as follows:

In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La. R.S. 15:432. To rebut the presumption of sanity and avoid criminal responsibility, defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted of criminal responsibility, defendant must show he suffered a mental disease or mental defect which prevented him from distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14; State v. Williams, 346 So.2d 181 (La.1977). The determination of sanity is a factual matter. All the evidence, including expert and lay testimony, along with the defendant’s conduct and action, should be reserved for the fact finder to establish whether the defendant has proven by a preponderance of the evidence that he was insane at the time of the offense. State v. Bibb, 626 So.2d 913 (La.App. 5th Cir.1993), writ denied, 93-3127 (La.9/16/94); 642 So.2d 188; State v. Claibon, 395 So.2d 770 (La.1981). Lay testimony pertaining to defendant’s actions, both before and after the crime, may provide the fact finder with a rational basis for rejecting unanimous medical opinion that the defendant was legally insane at the time of the offense. State v. Peters, supra, 94-0283 (La.10/17/94); 643 So.2d 1222; State v. Claibon, supra.
In reviewing a claim for insufficiency of evidence in an action where an affirmative defense of insanity is raised, this court, applying 112the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. Peters, 94-0283 (La.10/17/94); 643 So.2d 1222; State v. Nealy, 450 So.2d 634 (La.1984); State v. Price, 403 So.2d 660 (La.1981); State v. Claibon, supra; State v. Roy, 395 So.2d 664 (La.1981).

Currie, 2000-2284, pp. 16-17, 812 So.2d at 137-138, quoting State v. Silman, 95-0154, p. 7 (La.11/27/95), 663 So.2d 27, 32.

The following rules also apply in accessing the sufficiency of the evidence:

A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the fact finding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 2006-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-1286.

The defendant does not dispute that the two members of the sanity commission appointed by the trial court, forensic psychiatrist Dr. Richard Richoux and forensic psychologist Dr. Ralph Salcedo, found no evidence of any mental disease or defect that prevented the defendant from distinguishing between right and wrong with regard to defendant’s killing of his mother. The defendant’s expert witness, forensic psychiatrist Dr. Sara Deland, answered in the affirmative when asked during direct examination whether, with reasonable medical certainty, because of the defendant’s symptoms and his mental defect at the time of the offense, he was not able to distinguish the difference between right from wrong. Dr. Richoux — and Dr. Salce-do, by the effect of defense counsel’s stipulation to his testimony — disagreed with Dr. Deland on this point.

| iSThe defendant’s argument in this assignment of error is essentially directed to bolstering the weight of Dr. Deland’s expert testimony and her credibility, while attacking the weight of the testimony by Drs. Richoux and Salcedo and attempting to undercut their credibility. However, viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues that the trial court erred in refusing to permit Earl Truvia, the defendant’s brother, to testify about the defendant’s demeanor on the night of the incident, thus violating his right to present a defense.

During the direct examination of Earl Truvia, defense counsel asked:
Let me ask you, when you left at about eleven o’clock the night before your mother’s death, did Gregory at that point [sic] was his demeanor [sic] or was there anything about him that seemed unusual or strange?

The prosecutor objected. Defense counsel stated “That he observed,” meaning what Earl Truvia had observed. Id. The trial court then sustained the objection. There was no valid ground for the objection. Earl Truvia had already testified without objection to defendant’s behavioral changes when he moved into the trailer, and to specific instances of defendant’s behavior. The testimony sought would have been relevant to the issue of defendant’s state of mind at the time of the offense. It would not have constituted hearsay. It would have been permissible opinion testimony by a lay witness that was rationally based on the perception of [ 14the witness and helpful to a clear understanding of the determination of fact in issue. La. C.E. art. 701.

During the prosecutor’s cross examination of Earl Truvia, moments after the foregoing objection by the State was sustained, the following colloquy occurred with regard to the witness’s testimony on direct examination about his concern for the defendant’s behavior after he moved into the trailer:

Q But you weren’t concerned enough? In other words, you left him alone with your mother. So, you weren’t concerned enough to make sure that he was okay ?
A The concern was when I left him. I stayed with him a period of time where he told me he was okay. So, that duration that I spent with him, that was enough for me to have the concern that he -was okay.

In addition, the expert opinions of Dr. Richoux and Dr. Salcedo took into account what Earl Truvia said to police after the killing, with Dr. Richoux relating that Earl told police that the defendant was in good spirits and showed no sign of being distraught in any way.

A criminal defendant has the constitutional right to present a defense. U.S. Const. Amend. 6; La. Const. Art. 1 § 16; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201. “It is difficult to imagine rights more inextricably linked to our concept of a fair trial [than the right to present a defense].” Van Winkle, 94-0947, p. 5, 658 So.2d at 202. Evidentiary rules may not supersede a defendant’s fundamental right to present a defense. Id.; State v. Thompson, 2008-0874, p. 4 (La.App. 4 Cir. 4/8/09), 10 So.3d 851, 853. Nevertheless, confrontation errors are subject to the harmless error analysis. Thompson, 2008-0874, p. 4, 10 So.3d at 853, citing State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817. In a harmless error review, “the question is not whether, in a trial that | lsoccurred without error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” State v. Vance, 2003-1946, p. 10 (La.App. 4 Cir. 6/30/04), 879 So.2d 862, 869, citing State v. Johnson, 94-1379, p. 14 (La.11/27/95), 664 So.2d 94, 100.

Defense counsel’s question to Earl Tru-via was whether Earl had noticed “anything about [defendant] that seemed unusual or strange” when Earl left defendant and their mother at 11:00 p.m. on the night before the early-morning killing. Moments after that question, Earl essentially testified on cross examination that defendant was okay when he left him; it is not disputed that Earl left him at approximately 11:00 p.m. This testimony by Earl vras consistent with what he told police after the killing, described by Dr. Richoux as that Earl felt the defendant was in good spirits and showed no sign of being distraught in any way. Dr. Richoux testified that he expressly relied on what Earl Tru-via said to police after the killing in reaching his conclusion, and that what Earl had said was very important to his conclusion that the defendant was not insane at the time of the offense. Dr. Richoux testified that if an individual develops psychotic symptoms within a period of five hours, the vast majority of the time that does not have to do with a mental illness, but drug intoxication.

While it is not known exactly what Earl Truvia would have testified to in answer to defense counsel’s question which was objected to by the prosecutor, even if he had answered that he noticed something strange or unusual when he left defendant at 11:00 p.m., that would have been inconsistent with his subsequent testimony on cross examination that defendant was okay when he left him. It would also have been inconsistent with his statement to police after the killing.

11(iIt can be noted that defense counsel failed to proffer what Earl Truvia’s answer might have been to the question objected to by the State. Nor does the defendant suggest in his appellate brief what Earl Truvia might have said in answer to that question.

Considering all of the facts and circumstances, the guilty verdict rendered in this case was surely unattributable to any error by the trial court in sustaining the State’s objection at issue here. Therefore, any error by the trial court in sustaining the objection was harmless error.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues that the trial court erred in denying his motion to continue the trial, such motion being made on the first day of trial.

Defense counsel moved for a continuance in writing on the first day of trial wdien he had not received a copy of the sanity report by the members of the court-appointed sanity commission, Dr. Richoux and Dr. Salcedo. The trial court pointed out that the defendant’s prior defense counsel had requested that Drs. Richoux and Salcedo defer their sanity report until after they had read the report by defense expert Dr. Sara Deland, and that the defense kept putting off the production of Dr. Deland’s report. That delayed Drs. Richoux and Salcedo completing their report. Thus, the trial court denied the motion to continue. Defense counsel received the report by Drs. Richoux and Salcedo later during the first day of trial. Dr. Richoux was the last witness to testify at the trial, on the second day of the trial. Dr. Salcedo did not actually testify, but instead defense counsel stipulated to his testimony after Dr. Richoux testified.

117La.C.Cr.P. art. 645(B) states that the report of the sanity commission “shall be” be filed within thirty days of after the order of appointment. However, “[t]he time for filing may be extended by the court.” Id.

A trial court’s decision to deny or grant a continuance is within its broad discretion and will not be disturbed absent a clear showing of abuse; the decision depends on the circumstances of each case and should not be disturbed absent a showing of specific prejudice. State v. Randle, 98-1670, p. 8 (La.App. 4 Cir. 12/22/99), 750 So.2d 353, 358.

The defendant shows no prejudice from the denial of his trial counsel’s motion to continue. Defense counsel received the sanity commission report the day before Dr. Richoux, a member of the sanity commission, testified at trial. Defense counsel’s cross examination of Dr. Richoux was not lacking. It is not disputed by the defendant that the trial court correctly stated that the defendant’s prior counsel had requested that the sanity commission members delay preparation of their report until they read Dr. Deland’s report, or that defense counsel delayed producing Dr. De-land’s report.

Considering these facts and circumstances, it cannot be said that the trial court erred in denying defense counsel’s motion to continue.

There is no merit to this assignment of error.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Guillermo LOPEZ Husband of and Demetria Arana Lopez v. HOUSE OF FAITH NON-DENOMINATION MINISTRIES.
    No. 2009-CA-1147.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.
    Robert C. Evans, Evans & Company, New Orleans, LA, For Plaintiff/Appellant.
    Brandon J. Frank, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

| iPlaintiffs, Guillermo and Demetria Lopez, appeal the trial court’s judgment granting an exception of prescription in favor of defendant, House of Faith NonDenominational Ministries (“House of Faith”). We find that the prescriptive period did not commence until Defendant’s building was demolished. We therefore reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Guillermo and Demetria Lopez “(Plaintiffs”) own a house at 1326-1328 Elysian Fields Avenue in New Orleans, Louisiana; House of Faith Non-Denominational Ministries (“Defendant” or “House of Faith”) owns a building on the adjacent property. Plaintiffs returned to New Orleans on January 3, 2006, following Hurricane Katrina. At that time, Plaintiffs discovered that defendant’s building was damaged and leaning over their property line. Pastor Christina Ford, minister and director of House of Faith, also returned to New Orleans in early January of 2006 to find the building leaning.

In March of 2006, Defendants filed an application for demolition of private property with the City of New Orleans. On May 22, 2006, the City issued a notification of intent to demolish defendant’s building.

|2Plaintiffs submit that sometime in the summer or fall of 2006, Defendant’s building fell onto Plaintiffs’ house. Defendant claims that the contact occurred on June 1, 2006. Defendant’s building remained in contact with Plaintiffs’ house until June 10, 2007, when it was demolished by the City of New Orleans.

Plaintiffs filed the instant lawsuit on December 7, 2007. The petition alleges that Defendant failed to repair the defect that caused damage to their property and failed to exercise reasonable care to prevent damage to their property. More specifically, the petition asserts liability on the part of Defendant pursuant to La. C.C. art. 660, which requires a property owner “to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor....” The petition further alleges that Defendant is liable under La. C.C. art. 2322, which provides that “the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it.... ”

Defendant filed exceptions of prescription, no right of action, and no cause of action. In connection with the exception of prescription, Defendant asserts that the one year prescriptive period began to run on June 1, 2006, the date its building first made contact with Plaintiffs’ house. Plaintiffs opposed the exception arguing: 1) they did not discover the full extent of the damage until defendant’s building was demolished on June 10, 2007; and 2) Defendant’s continued failure to repair and/or remove its building was a continuing tort which did not abate until the building was demolished.

The trial court granted the exception of prescription and rendering moot the exceptions of no right and no cause of action, and Plaintiffs’ appealed.

EXCEPTION OF PRESCRIPTION

| -¡On appeal, Plaintiffs argue that the trial court erred in granting the exception of prescription because the damage to their property was caused by a continuing tort. Plaintiffs further contend that the trial court erred in granting the exception even though the suit was filed less than one year after the damage occurred.

La. C.C. art. 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the date the injury or damage is sustained. As a general rule, the party pleading prescription bears the burden of proving the plaintiffs claim has prescribed; however, when a claim has prescribed on its face, the burden shifts to the plaintiff to demonstrate prescription was suspended or interrupted. In re Medical Review Panel for the Claim of Moses, 2000-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177.

The first issue in the present case is whether it is evident on the face of the petition that Plaintiffs’ claim has prescribed. A review of the petition shows that it alleges a continuous course oí tor-tious activity on the part of Defendant. More specifically, it is asserted that Defendant failed to repair the defect that caused damage to Plaintiffs’ property and failed to exercise reasonable care to prevent damage to Plaintiffs’ property, which actions and ensuing damages continued until Defendant’s building was demolished. Although the petition does not provide the date of the demolition, it is undisputed that the demolition took place on June 10, 2007. Because the petition adequately pleads continuous tort, the burden rests with Defendant.

The continuing tort doctrine only applies when continuous conduct causes continuing damages. Bustamento v. Tucker, 607 So.2d 532, 542 (La.1992). Where the cause of injury is a continuous one giving rise to successive damages, 14pi"escription does not begin to run until the conduct causing the damage is abated. South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982).

In Crump v. Sabine River Authority, p. 7 (La.1999), 737 So.2d 720, 726, the Supreme Court of Louisiana examined the theory of continuing tort as follows:

As previously noted by this Court, the theory of continuing tort has its roots in property damage cases and requires that the operating cause of the injury be a continuous one which results in continuous damages. Bustamento v. Tucker, 607 So.2d 532, 543 n. 8 (La.1992); South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). Professor Yiannopoulos, in his treatise on Louisiana predial servitudes clarified this requirement as it relates to prescription as follows:
[A] distinction is made between continuous and discontinuous causes of injury and resulting damage. When the operating cause of the injury is ‘not a continuous one oí daily occurrence, there is a multiplicity of causes of action and of corresponding prescriptive periods. Prescription is completed as to each injury, and the action is barred upon the lapse of one year from the date in which the plaintiff acquired, or should have acquired, knowledge of the damage .... [This is to be distinguished from the situation where] the ‘operating cause of the injury is a continuous one, giving rise to successive damages from day to day....’
A.N. Yiannopoulos, Predial Servitudes, § 63 (1983). (emphasis added).
In this latter case discussed by Professor Yiannopoulos, where the operating cause of injury is a continuous one and gives rise to successive damages, prescription dates from the cessation of the wrongful conduct causing the damage. South Central Bell, 418 So.2d at 533. However, in cases where property has been injured or damaged, and the continuing tort theory is inapplicable, either because the operating cause of the injury is discontinuous or because the damages are not successive, prescription runs from the date that knowledge of such damage was apparent or should have been apparent to the injured party. La. Civ.Code Ann. art. 3493 (West 1994); South Central Bell, 418 So.2d at 532; Dean v. Hercules, Inc., 328 So.2d 69, 73 (La.1976).

In Crump, the plaintiff owned property through which the McDonald Bayou flowed. In 1971, a canal was dug on adjoining property that resulted in the flow of water being diverted away from the portion of the bayou on which plaintiffs property fronted. The plaintiff argued that the existence of the canal constituted l5the operating cause of daily injury because its presence caused a continuous diversion of the flow of water away from her property.

The Court held that the actual digging of the canal was the single operating cause of the injury. Id., at 727-28. The continuous diversion of water from the bayou was considered by the Court to be the continuing ill effect of the original wrongful act. Id. The Court further reasoned that:

[T]he defendant’s duty to remove the canal would stem from its obligation ... to repair the damage caused by its tor-tious conduct. However, the breach of the duty to right a wrong and make the plaintiff whole simply cannot be a continuing wrong which suspends the running of prescription, as that is the purpose of any lawsuit and the obligation of every tortfeasor.

Id. at 729. Thus, the Court concluded that the continuing tort doctrine could not be applied under the facts of the case to suspend the running of prescription. Id.

In Cooper v. Louisiana Department of Public Works, 2003-1074 (La.App. 3 Cir. 3/3/04), 870 So.2d 315, the plaintiffs brought an action against the Department of Transportation and Development, alleging that they had suffered damages resulting from the permanent flooding of portions of their land caused by the construction of locks and dams. The defendant argued that the plaintiffs’ claims had prescribed because they were aware of the flooding for more than twenty years. The plaintiffs asserted that their claims had not prescribed because the flooding constituted a continuing tort.

The appellate court distinguished Cooper from Crump, explaining that the continuing tort theory did not apply in Crump “because the complained of actions by the defendant were simply the continued ill effects that arose from a single tortious act, the digging of the canal.” Id., at 323. In Cooper, however, the complained of action was “the constant interference with their servitudes of | (¡drainage, causing the permanent flooding of [plaintiffs] lands.” Id. Thus, the court ruled that prescription would not run until the flooding of the plaintiffs’ lands was abated, noting that the case was analogous to Estate of Patout v. City of New Iberia, 97-1097 (La.App. 3 Cir. 3/6/98), 708 So.2d 526.

In Estate of Patout, the City of New Iberia operated a landfill on property adjacent to the plaintiffs’ land from the early 1970s through October of 1989. During those years, the City pushed garbage onto the plaintiffs’ property. The plaintiffs sued the City for trespass on their immovable property over that period of time. The appellate court held that the continued presence of the garbage on plaintiffs’ property constituted a continuing trespass and that prescription would not begin to run until the garbage was removed. Id., at 531. The Court relied on South Central Bell, in which the tortious conduct was the continuous leaking of gasoline from damaged storage tanks into a manhole containing plaintiffs telephone cables. Thus, prescription did not begin to run until the offending tanks were replaced, thereby stopping the leaks.

In the Estate of Patout case, the Supreme Court remanded the case to the Third Circuit for a determination of the date on which prescription began to run in light of the Crump decision. The appellate court concluded that Crump was distinguishable from Estate of Patout, and restated its previous ruling that “the City’s trespass on the plaintiffs’ immovable property continues by virtue of its failure to remove the deposited garbage,” holding that prescription would not begin to run until the garbage was removed from the plaintiffs’ property. Estate of Patout v. City of New Iberia, 2001-0151, p. 6 (La.App. 3 Cir. 4/3/02), 813 So.2d 1248, 1252.

17Citing Crump, defendant in the present case argues that the continuing tort doctrine does not apply here because the petition fails to allege a series of unlawful acts on the part of defendant, and is solely based on the continuing ill effects caused by Hurricane Katrina. Finding Crump distinguishable from this case, we disagree.

This case does not present a situation, as in Crump, where the continuing tort doctrine is inapplicable because the complained of actions by Defendant were simply the continued ill effects that arose from a single tortious act. It is undisputed that Defendant’s building was leaning over Plaintiffs’ property line in early January of 2006. Moreover, Defendant’s building remained in physical contact with Plaintiffs’ house from June of 2006 until June of 2007. In such a case, which is more analogous to Estate of Patout and Cooper, the wrong continues as long as the offending object remains. (See also Dore v. Jefferson Guar. Bank, 543 So.2d 560 (La.App. 4 Cir.1989), where this Court held that debris left on plaintiffs property was a continuing trespass until removed from the premises.)

Defendant further contends that it used reasonable efforts to repair its hurricane damaged building and did not engage in any act that caused the building to collapse onto plaintiffs’ property. We find no merit in this argument. The record before us, which includes an affidavit from Pastor Christine Ford, reflects that the only action taken by Defendant was to apply to the City of New Orleans for demolition. Although Defendant periodically corresponded with the City to investigate the progress of the demolition process, there is no evidence that Defendant took any remedial measures, or made any effort to stabilize or secure the building after discovering the initial damage in January of 2006. Nor is there |¡¡any evidence that Defendant made any attempts to remove the structure after it made contact with Plaintiffs’ house in June of 2006.

In Risin v. DNC Investments, L.L.C., 2005-0415 (La.App. 4 Cir. 12/7/05), 921 So.2d 133, this Court determined that the defendant/landlord’s fault, in failing to abate the lead exposure of the plaintiff/tenant, continued until the plaintiffs exposure to lead paint ended when the plaintiff moved out. We noted that the tortious conduct was continuous, despite the fact that the conduct complained of was not action, but the failure to act (to correct the problem) by one who has a duty to do so. Id., at p. 8, 921 So.2d at 138.

In the instant case, the injury to Plaintiffs’ property continued by virtue of Defendant’s failure to repair its building and/or remove it from Plaintiffs’ property. Thus, we conclude that prescription did not begin to run until Defendant’s building was demolished on June 10, 2007.

DECREE

For the foregoing reasons, we find that the trial court erred by dismissing the case on the basis of prescription. The judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Fabian MUMME.
    No. 2009-KA-0705.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.
    Leon A. Cannizzaro, Jr., District Attorney, Christopher S. Bowman, Assistant District Attorney, New Orleans, LA, for Appellee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

| STATEMENT of case

The State charged Fabian Mumme with “cruelty to an animal, to -wit, a bat, belonging to Julian Mumme, by beating the animal with a bat causing the animal to be maimed and injured.” Later the information was amended to delete the phrase “to wit, a bat.” He pled not guilty and subsequently was found competent to stand trial. At a hearing on defense motions the trial court denied defendant’s motions to suppress the evidence and the statement and found probable cause. Mr. Mumme waived trial by jury and proceeded with a judge trial. The trial court found him guilty as charged and sentenced him to three years at hard labor, suspended, provided he serve three years active probation. The sentence was imposed under La.C.Cr.P. art. 893.

STATEMENT OF FACT

Sergeant Anthony Caprera testified that he responded to a call of a subject beating a dog with a baseball bat at 6730 Avenue A. Some construction workers next door directed Caprera to the rear of the property. As he approached the backyard, the defendant made eye contact with him and then said something to the | -¿effect that he had been ordered to get rid of the dog and that was what he was doing. Caprera observed a freshly dug hole in the ground and a dog lying next to it that appeared to have been recently killed. Caprera advised the defendant that he was under arrest and advised him of his rights.

Defendant objected to this testimony on the basis of relevancy noting that as per the bill of information, he was accused of cruelty to a bat, not a dog and suggested that he was not prepared to defend against cruelty to a dog and that he “prepared for trial with regard to a flying mammal.” After hearing argument, the trial court determined that the bat mentioned in the bill of information referred to a bat used as a weapon, not the victim animal. It then allowed the State to amend the bill of information to delete the reference and recessed the case for six days to allow the defendant to prepare.

Trial resumed with the continued testimony of Sergeant Caprera. He stated that the defendant told him that he killed the dog with a maul. He related that Sergeant Eckert recovered a baseball bat as well as an axe. The Crime Lab was called to process the scene, and the SPCA was called because a live dog remained on the property.

Sergeant Caprera further related that Mr. Mumme’s initial statement was that Judge Shea ordered him to get rid of the dogs and that was what he was doing. After being advised of his rights, Sgt. Caprera asked him why he did not just call the SPCA, and Mr. Mumme stated that on a previous occasion the dogs had been removed by the SPCA and that when they were returned they were in poor health.

Ryan Ray testified that on the day in question he was working on the second floor of the house next door. A co-worker drew Ray’s attention to the defendant’s actions after hearing a dog screaming and yelping. When Ray looked out the lawindow, he observed the defendant strike a dog several times with a baseball bat. The dog was screaming and yelping as he was being struck. The defendant then walked off, returned with an axe, struck the dog several times, and then the dog was silent.

Sergeant Doug Eckert testified that he observed an axe and a baseball bat on the scene, which he collected. The items were introduced into evidence at trial. Sergeant Eckert stated that the defendant appeared to be distraught because he was crying and apologetic.

Jennifer Ranero, an investigator with the Louisiana SPCA, testified that when she arrived on the scene she observed a black and tan Chow Shepard mix tied up in the front yard that appeared to be all right. In the back yard she observed blood splatter along the ground from the rear fence to the back door and throughout the back yard. Ranero photographed the scene. The photographs were introduced as evidence.

The trial court found the defendant guilty as charged.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR

Mr. Mumme contends that the trial court erred in allowing the State to amend the bill of information to delete the phrase “to wit: a bat” after the first witness was sworn. He contends that a mistrial should have been declared, that his conviction should be set aside, and that the State should be prohibited from trying him again.

|,[Be.cause the amendment corrected a defect of form, not a defect of substance, as provided in La.C.Cr.P. art. 487, the trial court correctly allowed the bill to be amended during trial. The evidence does not reflect any prejudice to the defendant in preparing his defense; accordingly, the trial court was well within its discretion to allow the amendment pursuant to La. C.Cr.P. art. 488, rather than declaring a mistrial pursuant to La.C.Cr.P. art. 489.

La. Const.1974, Art. I, § 13 provides that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” The Louisiana Supreme has stated, “[t]his requirement protects the accused’s right to prepare a defense and exercise fully his rights of confrontation and cross-examination.” State v. Johnson, 93-0394, p. 3 (La.6/3/94), 637 So.2d 1033, 1035 (citation omitted).

Articles 487 through 489 of The Louisiana Code of Criminal Procedure concern amendments to charging instruments and provide as follows:

Art. 487. A. An indictment that charges an offense to accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection to, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
'!■ * *
Art. 488. When there is a variance between the allegations of an indictment or bill of particulars which |fistate the particulars of the offense, and the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence.
Art. 489. If it is shown, on motion of the defendant, that the defendant has been prejudiced to his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.

The Louisiana Supreme Court explained what is meant in Article 487 by a “defect of substance,” to City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974):

A ‘defect of substance’ as contemplated by Article 487 of the Code of Criminal Procedure is intended to mean a defect which will work to the prejudice of the party accused. It has the same effect which an error in the citation of the statute or its omission from the indictment has under Article 464. Such an error ‘shall not be ground for dismissal of the indictment or for reversal of a conviction If (sic) the error or omission did not mislead the defendant to his prejudice.’ La.Code Crim. Proc. art. 464.

City of Baton Rouge v. Norman, 290 So.2d at 870.

The relevant portion of the bill of information stated that Fabian Mumme:

COMMITTED CRUELTY TO AN ANIMAL, TO WIT: A BAT, BELONGING TO FABIAN MUMME, BY BEATING ANIMAL WITH A BAT CAUSING THE ANIMAL TO BE MAIMED AND INJURED,

During trial, the state amended the bill by striking through the phrase, “TO WIT: A BAT”

1 ^Defendant contends that the bill of information in this case contained a serious error and that any plain reading of the bill gives the apparently unintended result of charging Mr. Mumme with killing “a bat with a bat.” Therefore, defendant contends, the amendment was a substantive amendment and could not have been allowed during trial.

We do not agree. A simple reading of the bill of information indicates to the average reader that the term “bat” had been duplicated unintentionally. At the very least, the average reader should have been alerted to a possible inadvertent duplication and inquired further. Accordingly, the defect in the bill was a “miswriting”, a defect of form only, which could be properly corrected during trial by amending the bill to delete the confusing language pursuant to La.C.Cr.P. art. 487.

Furthermore, knowing that the defendant had been informed through the testimony offered at the motion hearing that the offense concerned the defendant’s own dog and that the information contained in the police report likewise referenced a dog, and by the photographs of the crime scene depicting the dead dog, we cannot conclude that the defendant suffered any prejudice by the inadvertent duplication of the word “bat.” The trial court, in its discretion, properly allowed the amendment to the bill of information pursuant to La.C.Cr.P. art. 488. The absence of prejudice likewise renders the decision not to declare a mistrial pursuant to La.C.Cr.P. art. 489 a proper exercise of the trial court’s discretion.

17Finally, to the extent that the defendant may have actually believed that the State’s case concerned cruelty to a bat, the lengthy recess cured any prejudice.

In urging this perceived error defendant likens the current amendment to the amendments which occurred in State v. Johnson, supra, and State v. Wheeler, 95-1628 (La.App. 4 Cir. 12/14/95), 665 So.2d 1286. In both Johnson and Wheeler, the amendments had the substantive effect of charging a new offense, which is clearly prohibited. In Wheeler, the bill charged the defendant with failing to yield the right of way, a violation of La. R.S. 32:122, and the State amended the bill to charge the defendant with improper lane usage, a violation of La. R.S. 32:79. The amendment at issue did not have the effect of charging the defendant with a new offense.

Defendant’s assignment of error is without merit.

CONCLUSION:

For the reasons stated we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . It was not necessary to identify the type of animal in charging the crime, only that the crime involved cruelly to an animal. See La.C.Cr.P. art. 464 ("The indictment shall be a plain, concise statement of the essential facts constituting the offense charged.”) Further information regarding the nature and cause of the charge could have been set out more specifically in response to a motion by the defendant for bill of particulars pursuant to La.C.Cr.P. art 484.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Crayton JONES, Jr.
    No. KA 09-751.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 17, 2010.

      Don M. Burkett, District Attorney, Anna Louise Garcie, Assistant District Attorney, Many, LA, for Plaintifi/Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Crayton Jones, Jr.
    Crayton Jones, Jr., Sabine Parish Detention Center, Many, LA.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

| [Defendant, Crayton Jones, Jr., was charged by bill of indictment with second degree murder, in violation of La. R.S. 14:30.1, on August 24, 2005 for the shooting death of Alice Staton. He pled guilty to a reduced charge of manslaughter, in violation of La. R.S. 14:31 on July 10, 2006. He was sentenced to twenty years at hard labor on December 14, 2006.

At that hearing, Defendant verbally indicated his desire to appeal his sentence. Defendant’s attorney, Joseph David Toups, Jr., told the court, “I’d like to give notice to the Court of my intention to appeal and I will provide the Court with a written motion for appeal as well as a written motion to reconsider the sentence.” The trial court instructed Mr. Toups to file a written motion for appeal prior to the end of the 2007 year. Mr. Toups died on September 17, 2008; at the time of his death, no written motion had been filed.

In the meantime, Defendant timely filed a pro se application for post-conviction relief on July 8, 2008, in which he alleged he pled guilty because he was scared and forced into making the plea. Defendant claimed his guilty plea was made without understanding the nature of the charge and the consequences of the plea. Where the application asked if Defendant had appealed from the judgment of conviction, Defendant checked “Yes.” The trial court denied the application for post-conviction relief on July 11, 2008. Defendant did not seek review of the denial.

The record on appeal contains the trial court’s order dated October 27, 2008 that states, “[t]he Court has received written correspondence from the defendant in which he requests that new counsel be appointed due to the demise of Mr. Toups.” The next entry in the record is a handwritten letter from Defendant dated “12-20-08,” addressed to the District Attorney’s office in Many, Louisiana, which reads:

| gI, Crayton Jones Jr., was sentence[d] Dec. 14-06 as the charged of manslaughter, in the 11th Judicial Court. My appointed counsel Mr. Joseph Toups (IDB) represented me and after a guilty plea, Mr. Joseph Toups asked for an appeal in which records shows.
Mr. Joseph Toups deceased [sic], in pro-tractive [sic] to assist in the legal matters pertaining to this matter. After inquiring I was told the appeal was placed with the IDB for a new appointed attorney. My prayers is that your office would investigate my allegations, and reappoint me the attorney as soon as possible. I thank you very much.
Look to hear from you soon.
Sincerely,
Mr. Crayton Jones

The letter bears no indication of the date of filing into the record.

This Court made a request to the office of the Clerk of Court for Sabine Parish for a copy of the letter to which the October 27, 2008 order refers. In response, the clerk’s office supplemented the record on appeal with an affidavit stating the letter from Defendant dated “12-20-08” was attached to the October 27, 2008 order and filed with it on that same date. Thus, the only logical explanation is that Defendant placed an incorrect date on the letter, and his request for a new attorney was actually made prior to October 27, 2008.

On March 3, 2009, the trial court signed an order to appoint new counsel for Defendant for the purpose of preparing and filing an out-of-time appeal. Newly-appointed counsel filed an out-of-time motion to reconsider Defendant’s sentence on March 9, 2009. The motion alleged the trial court failed to articulate sufficient reasons to justify Defendant’s sentence and the sentence was harsh and excessive because Defendant’s conduct did not justify a twenty-year sentence. At a hearing on March 24, 2009, the parties submitted the matter but made no oral argument. The trial court denied the motion on March 25, 2009. Defendant then filed a motion for [3an out-of-time appeal on April 2, 2009, and the trial court granted the motion on April 3, 2009.

Mr. Toups’ oral indication of the intent to appeal Defendant’s sentence served as a timely motion for appeal, even though Mr. Toups told the trial court he would “provide the Court with a written motion for appeal as well as a written motion to reconsider the sentence” and never did so. The Louisiana Supreme Court has held an “oral motion made by counsel in open court following sentencing constituted an oral motion for an appeal as authorized by La.C.Cr.P. art. 914(A).... ” State v. Murphy, 07-2032 (La.2/22/08), 974 So.2d 1290. Murphy reversed this court’s decision dismissing an appeal based on a similar oral motion. See State v. Murphy, an unpublished opinion bearing docket number 07-555 (La.App. 3 Cir. 9/12/07).

Here, the motion for reconsideration was filed on March 9, 2009, and the motion for an out-of-time appeal was filed on April 2, 2009, both more than two years from the date Defendant was sentenced. Thus, the time had lapsed for Defendant to file an application for post-conviction relief for the purpose of requesting an out-of-time appeal. See State v. Counterman, 475 So.2d 336 (La.1985). Based on Murphy, this appeal was timely requested by Mr. Toups’ oral motion.

Defendant appeals his sentence as excessive. He also argues the trial court’s reasons for imposing the sentence are unsupported by the record and do not satisfy the mandates of La.Code Crim.P. art. 894.1. His pro se brief suggests his guilty plea was not knowingly and voluntarily made. For the reasons set forth below, the sentence imposed by the trial court is affirmed.

FACTS

According to the pre-sentence investigation report, Defendant told Sabine Parish Sheriffs Detective Steven Marr on July 21, 2005, the day of the incident, that |,,he and Alice Staton had an argument, struggled over a handgun, and it fired. In Defendant’s application for post-conviction relief, he alleged that, although he had told the detective he and Staton were “tussel-ing [sic] over the firearm,” in reality, he cocked the gun to see if it needed cleaning, and it accidentally fired. The application for post-conviction relief states Defendant “was scared and shock [sic] up, when the accident occurred.” What he had said in his initial statement to Detective Marr was “not the way it happen [sic].” Defendant filed correspondence with the trial court on July 8, 2008, in which he stated, “I’m very sorry i[sic] didn’t tell how the accident happen [sic] from the beginning, i[sic] am very sorry please forgive me.” According to Defendant’s handwritten statement attached to the pre-sentence investigation report, Defendant checked the gun to see if it needed oiling. As he “was fixing to set down,” it accidentally went off, and he saw Staton “laying there.” Defendant threw the gun in a chair, got a towel to wipe Staton’s face, went to a neighboring apartment, and asked its resident to call 911. When the resident asked what happened, Defendant told her the gun accidentally fired. Defendant ran back to the apartment, then returned to the neighboring apartment, and was stopped as he tried again to return to his apartment. Defendant was too nervous, scared and hurt “to tell what happen [sic] at the time of the accident.”

A witness reported she had been at the couple’s residence on the date of the shooting, and Defendant and Staton had argued periodically, from 11:00 p.m. until she left their home at 2:08 a.m. At one point, Defendant retrieved a handgun from his vehicle, brought it into the residence, and placed it on the couch. As the witness left the residence, Staton got into her vehicle and said she wanted to go home with the witness, but the witness did not let her go.

|-At the guilty plea hearing, Defendant indicated he understood the nature of his plea, his possible sentence, and the waiver of his constitutional rights. The trial court found Defendant was capable of making the plea and had “done so knowingly, intelligently and voluntarily, fully understanding the rights [he had] given up by pleading guilty and the consequences thereof.”

Defendant’s pro se brief, however, states he was “scared and nervous” and did not know what he was doing when he pled guilty. Defendant alleges the guilty plea “was a big misunderstanding,” and he would have never pled guilty had he understood the questions better.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Defendant claims his twenty-year sentence is cruel, unusual, and excessive and thus violates both the Eighth Amendment to the U.S. Constitution and Article 1, § 20 of the Louisiana Constitution. Further, he argues the reasons given by the trial court in support of the imposition of the twenty-year sentence are not supported by the record and are insufficient to satisfy the mandates of La.Code Crim.P. art. 894.1.

At the sentencing hearing on December 14, 2006, the trial court noted Defendant was convicted of simple burglary in 1982. He also served time on a theft charge and was released on good time parole that expired in 1990. The court discussed the benefit Defendant gained by his guilty plea and noted Defendant’s crime was one of violence. The trial court then particularly noted its review of the La.Code Crim.P. art. 894.1 factors. While it did not comment on each of the thirty-three factors, it specifically mentioned two of them as aggravating and one as mitigating. He noted that Defendant used a dangerous weapon in the commission of the crime and that Defendant foreseeably endangered human life by discharging a firearm, even though that discharge may have been accidental. The trial court also |(inoted in mitigation that the circumstances were unlikely to reoccur.

The trial court should indicate in the record that it considered both the aggravating and mitigating factors of La. Code Crim.P. art. 894.1 in particularizing a sentence to a defendant. State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66. The court need not “go through all of the aggravating and mitigating circumstances” so long as the record reflects that he adequately considered the article’s guidelines.” Id. at 68 (quoting State v. Thomas, 434 So.2d 530, 536 (La.App. 2 Cir.1983)). The trial judge’s specific reference to the factors he considered applicable in this case shows he adequately considered Article 894.1.

Defendant further argues his sentence is excessive considering the circumstances of the case and his background. This court has set out a standard to be used in reviewing excessive sentence claims:

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. 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).

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(alteration in original).

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

|7[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. 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, [p.2] (La.5/31/96), 674 So.2d 957, 958.

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.

Defendant’s crime of manslaughter is a violent offense that resulted in Staton’s death. The penalty for manslaughter is up to forty years at hard labor. La. R.S. 14:31. Defendant’s twentjr-year sentence is in the middle of the sentencing range. At the time of his guilty plea, Defendant was forty-five years old. He has a seventh grade education and two prior felony convictions for simple burglary and theft. Defendant now claims the shooting occurred accidentally while he was cleaning or oiling his gun. However, just hours after the shooting and at the hearing of his guilty plea, he said the gun discharged as he and Staton argued. Nothing in the record indicates Defendant’s story changed until after he was sentenced. Defendant now wants this court to believe that he was unable to truthfully report how the shooting actually occurred because of his shock and fear in the immediate aftermath of the shooting, and again a year later at the guilty plea, but is now, after sentencing, able to tell how the accident really happened.

Defendant alleges the trial court doubted whether the State could have proven second degree murder, and thus, he really received no benefit from the plea bargain to the lesser offense of manslaughter. The trial court commented, “even though there are some indications that it was accidental in regard to not an intentional [sic], it was Iscertainly as a result of elements that make it manslaughter.” The trial court did not see the evidence or hear the witnesses’ testimony because of the plea bargain, and therefore, could not (and did not) say whether the State could have proven its case. Had Defendant gone to trial for second degree murdei-, a jury might have found him guilty, and he would have faced a mandatory life sentence without benefit of parole, probation or suspension of sentence. His agreement to plead to manslaughter reduced his possible sentence to no more than forty years at hard labor. Defendant will serve only half of that possible sentence. Clearly, Defendant received considerable benefit from the plea agreement.

The manslaughter conviction is Defendant’s third felony. He had a 1982 conviction for simple burglary and a theft conviction for which his parole expired in 1990. The trial court did not use these convictions to enhance Defendant’s sentence, but properly considered them as part of Defendant’s criminal history.

Similar cases show Defendant’s mid-range sentence was not an abuse of the trial court’s discretion. The defendant in State v. Williams, 03-1537 (La.App. 3 Cir. 6/9/04), 875 So.2d 1043, writ denied, 04-1951 (La.12/17/04), 888 So.2d 864, was sentenced to the maximum forty years at hard labor, without benefits, after a confrontation that resulted in the defendant shooting the victim at point-blank range and killing him.

The victim died of injuries from a fist fight in State v. Levy, 08-1467 (La.App. 3 Cir. 6/10/09), 12 So.3d 1135. The Levy defendant was charged with second degree murder. He pled guilty to manslaughter and was sentenced to twenty-five years at hard labor. In State v. Lanieu, 98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962, the defendant shot his victim after an argument, paused, and shot him again. He drove away with the victim’s body in the pear and dumped it in a field. The first circuit affirmed the maximum forty-year sentence.

Defendant argues the aggravating factor of endangering human life should not have been considered in imposing his sentence because that characteristic is inherent to a manslaughter conviction. By nature, manslaughter endangers human life, and so, that factor is already considered in the sentencing range for the crime. Thus, Defendant argues that factor should not be considered to lengthen his sentence in any way.

This argument was not made in the trial court, and thus, may not be considered here. La.Code Crim.P. art. 881.1. “Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1.” State v. Lanclos, 419 So.2d 475 (La.1982). The record shows an adequate factual basis for Defendant’s twenty-year sentence.

PRO SE ASSIGNMENT OF ERROR

Defendant’s pro se brief does not formally allege any assignments of error. However, it argues Defendant’s guilty plea was made because he misunderstood what he was doing, implying the plea was not knowingly and voluntarily made.

This argument was not made in Defendant’s motion to reconsider his sentence. It was first raised in Defendant’s application for post-conviction relief; that application was denied. The proper mode of review of a judgment denying an application for post-conviction relief is by application for supervisory writs. La.Code Crim.P. art. 930.6. Defendant did not file a supervisory writ application seeking review of the trial court’s denial of his application for post-conviction relief. However, in the interest of judicial economy, we will consider Defendant’s pro se | inassignment of error and review the trial court’s denial of his application for post-conviction relief.

From the time of the shooting, Defendant maintained it occurred during an argument with Staton that involved the gun. Defendant continued with that version of the facts at the hearing of his guilty plea. Only after he received a twenty-year sentence of imprisonment at hard labor did his story change. Only at that point did he contend the gun accidentally fired while he was cleaning or oiling it.

Defendant’s pro se brief alleges he waived his rights because he misunderstood the question asked of him, and his guilty plea to manslaughter was a big misunderstanding. He would have never taken the plea if he had understood the question; he was scared and nervous and did not know what he was doing.

Defendant, however, never identifies the particular question he allegedly misunderstood. The transcript of the plea hearing shows Defendant said no one had threatened him or made any promises or guarantees to try to make him plead against his will. He understood the possible penalty for manslaughter was forty years at hard labor. He said he was not under the influence of drugs or alcohol and that nothing was going on in his life that would prevent him from understanding what he was doing or the consequences of his action. Defendant said he understood he gave up his Boykin rights of trial by jury, confrontation of witnesses, and privilege against self-incrimination.

After the State presented the factual basis for the plea, including that Defendant told law enforcement officers that he and Staton had a verbal argument and that the gun fired while they struggled over it, Defendant indicated he still wanted to enter his guilty plea. The judge found Defendant fully understood the rights he relinquished and entered the plea knowingly, intelligently and voluntarily. The record supports |1ta finding that the trial judge was correct. See State v. Jones, 08-1158 (La.App. 5 Cir. 2/25/09), 9 So.3d 893.

Nothing in the record supports Defendant’s claim that he misunderstood any part of the hearing. Defendant’s contention that he was too scared and nervous to tell the truth does not provide an adequate basis to withdraw his guilty plea.

CONCLUSION

The twenty-year sentence imposed by the trial court is affirmed, and the trial court did not err in denying Defendant’s application for post-conviction relief.

AFFIRMED.

      . The record contains no timely filed motion to reconsider.


author: AMY, Judge.

text:
    STATE of Louisiana v. Edward L. CHRISTIEN.
    No. 09-890.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      John F. DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Edward L. Christien.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

|/The defendant pled guilty to armed robbery and aggravated burglary. He was subsequently sentenced to twenty-five years imprisonment at hard labor without the benefit of probation, parole or suspension of sentence on the armed robbery charge and thirty years imprisonment at hard labor for the aggravated burglary charge to run concurrently with the armed robbery sentence. In addition, the trial court suspended five years of the aggravated burglary charge and, upon release from incarceration, placed the defendant on five years of supervised probation. On appeal, the defendant asserts that the trial court erred in denying his motion to reconsider sentence and that he was denied effective assistance of counsel. For the following reasons, we affirm the defendant’s sentence and remand this case to the trial court for an evidentiary hearing.

Factual and Procedural Background

The defendant, Edward L. Christien, and four other individuals entered the home of a Calcasieu Parish woman and held her at knife point while they proceeded to take several items from the home including weapons, jewelry, and electronics. The men then instructed the woman to place $500.00 in a potato chip bag and leave it at a specific intersection at a designated time the following day. The victim was also instructed that if she did not comply, the men would return to her home and harm her. The victim notified law enforcement who proceeded to place marked money at the scene as instructed. The following morning, the defendant was apprehended attempting to retrieve the money.

The defendant was subsequently charged by bill of indictment with armed robbery, extortion, contributing to the delinquency of a juvenile, and aggravated burglary, violations of La. R.S. 14:64, 14:66, 14:92, and 14:60, respectively. Pursuant |2to a plea agreement, the defendant entered a guilty plea to armed robbery and aggravated burglary. The State dismissed the remaining charges. The parties also agreed to a recommended sentence of ten years on each charge to run concurrently.

On January 16, 2008, the defendant was sentenced to twenty-five years imprisonment at hard labor for the armed robbery conviction and thirty years imprisonment at hard labor for the aggravated burglary conviction, with the sentences to run concurrently. The trial court also suspended five years of the sentence, and ordered, that upon release, the defendant be placed on supervised probation with special conditions.

The defendant filed a motion to reconsider sentence which was denied on January 24, 2009. The defendant also applied for post-conviction relief, requesting: (1) an out-of-time appeal; (2) a court review of the record to determine whether he was denied effective assistance of counsel, and; (3) a withdrawal of his guilty plea. Following the application for post-conviction relief, the defendant was granted an out-of-time appeal. The other relief he requested in his post-conviction relief application — the ineffective assistance of counsel and withdrawal of his guilty plea — were determined by the trial court to be moot until the defendant exhausted his appeal rights.

On appeal, the defendant asserts that the trial court erred in denying his motion to reconsider sentence, resulting in sentences that are excessive in light of a number of mitigating circumstances. In a supplemental pro se brief, the defendant also contends that he received ineffective assistance of counsel as his attorney failed to object to what he contends was the State’s breach of the plea agreement at the time of sentencing.

^Discussion

Excessiveness of Sentence

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guai'antees 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[p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 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 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

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.

For his conviction of armed robbery, the defendant faced a sentence of ten to ninety-nine years at hard labor, to be served without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B). As such, the defendant’s twenty-five year sentence was a lower range sentence for this offense. For aggravated burglary, the defendant faced a sentence of one to thirty years at hard labor, and thus, his thirty-year sentence was the maximum possible sentence for this offense. La. R.S. 14:60. The trial court, however, suspended five years and ordered the sentence to run concurrently with his sentence for armed robbery.

Additionally, the Defendant’s sentencing exposure was greatly reduced by virtue of his plea agreement. Prior to his plea, he faced a sentence of one to fifteen Lyears at hard labor for extortion, La. R.S. 14:66, and two to ten years at hard labor for contribution to the delinquency of a juvenile. La. R.S. 14:92(E)(1).

After reviewing the record in the present case, we find that the defendant’s sentences are not excessive. The defendant’s twenty-five year sentence for armed robbery is in the lower range of allowable sentences for that crime. Although the defendant received the maximum sentence for aggravated burglary, five years were suspended and the sentence was ordered to run concurrently with his sentence for armed robbery. Lastly, as noted above, the defendant received a significant benefit from plea agreement. Accordingly, we find that the defendant’s sentences should be affirmed.

Ineffective Assistance of Counsel

The defendant asserts that the State breached the plea agreement by failing to make the agreed upon sentencing recommendation to the trial court at the time of sentencing. He further argues that he was assured that the judge would accept this recommendation, and thus, was clearly induced to plead guilty by the representations of both the State and his counsel. He contends that his counsel’s failure to object to the alleged breached plea agreement resulted in ineffective assistance of counsel.

A review of the record reflects that the State informed the trial court at the beginning of the guilty plea hearing that the defendant would be pleading guilty to armed robbery and aggravated burglary, and in exchange for his plea, the State would agree to dismiss the remaining charges and make a sentence recommendation. At the plea healing, the trial court stated the maximum sentences allowable for each offense, and further stated:

|f,THE COURT:
Just for some reason, to give you an idea, you could get up to 129 years, of which 99 would be without benefit of probation, parole, if you were to get the maximum sentence you could get. You understand that?
MR. CHRISTIEN:
Yes, sii-.
THE COURT:
You accept that possibility?
MR. CHRISTIEN:
Yes, sir.
The trial court then inquired about the sentence recommendation and the parties responded as follows:
[THE STATE]
Yes, Your honor, ten years on each count, to run concurrent.
[COUNSEL FOR THE DEFENDANT]
That is the joint recommendation, Judge, and there’s also a recommendation that [the defendant] is aware of, it’s the minimum; he was hoping he could get something less, and I told him that’s the minimum that’s on the charge, if we resolve it today. And I know it’s the mandatory minimum, Judge, and I ask you to accept that.

The State also indicated that the recommended sentence was also acceptable to the victim.

At the conclusion of the guilty plea hearing, the trial court ordered a Presentence Investigation Report, stating that it wanted to review the defendant’s juvenile history and the victim’s statement.

The defendant contends that the State breached the plea agreement at the sentencing hearing, by stating:

Your Honor, in this matter, in speaking with the victim on this matter before I agreed to the plea agreement that defense and I worked pout, she stated that as long as the defendant received ten years on both counts and where they ran concurrent or consecutive, whatever, that would satisfy her, but that was the minimum she would agree to, Your Hon- or. I think the only thing in these type cases, and I know the Court recognizes it, but sometimes we forget, is this woman was traumatized by what happened. And, regardless of whether the defendant’s story that the son owed him money or not, the assault did not take place on the son. This was a very frightening situation where four people burst into this lady’s house and, grant it, it was only a knife. She thought it was a gun that was in her back. She was forced to open a safe or give a combination to a safe and thi'eatened with harm. And home invasions of this nature, Your hon- or, certainly should not be taken lightly.
I don’t think he should do 50 years in prison or 60 years in prison, but I think he does need to do more than ten years personally, or the State does.

(Emphasis added.) The defendant contends that by failing to object to this statement, his counsel was ineffective. The defendant contends that this alleged breach of the plea agreement by the State implicates Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), a case in which the United States Supreme Court spoke of the voluntariness of guilty pleas in light of plea agreements. In that case, the defendant negotiated a plea agreement with the State to plea guilty to a lesser included offense than the offense originally charged. In exchange, the State agreed to make no recommendation as to sentence to be imposed. The defendant entered a plea of guilty, and the sentencing was scheduled for a later date. At the sentencing, the State appeared and made a recommendation as to what sentence should be imposed. The Santobello court issued its reasons for remanding the case and stated as follows:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Id at 262, 92 S.Ct. 495; 499.

|7A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains sufficient evidence to decide the issue, and the issue is raised by an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

In the present case, the facts applicable to the issue of ineffective assistance of counsel, found in the defendant’s application for post-conviction relief, are his allegations that his trial counsel “should have raised the prosecuting attorney’s remarks to the sentencing judge violated [sic] his due pro[cess] rights and preserved the claim for review on appeal.” The defendant also contends that the record clearly shows that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

In State v. Tapp, 8 So.3d at 807, the defendant alleged that his trial counsel was ineffective in failing to allege the necessary facts in support of a motion to suppress. The Tapp court found that the allegations should be resolved in post-conviction proceedings, citing State v. Smith, 06-820 (La.App. 1 Cir. 12/28/06), 952 So.2d 1, writ denied, 07-211 (La.9/28/07), 964 So.2d 352, as follows:

But the particular allegations of ineffective assistance of counsel alleged by the defendant herein cannot be sufficiently investigated from the inspection of the record alone. Each of these allegations (failure to object to the jury’s review of written evidence during deliberations, failure to present evidence of the effects of alcohol or evidence of impairment, and the failure to object to jury instructions) may involve matters of trial preparation or strategy. It is well settled that decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where the defendant could | ^present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, these allegations are not subject to appellate review.

The Tapp court further explained:

The facts before us do not allow for a determination as to why counsel acted in this manner. It is possible that she felt that there were no facts which would support constitutional allegations which required a hearing, or was concerned that damaging facts might become known to the prosecution if the hearing took place. Of course, proper proceedings could also demonstrate that counsel had no good reason for her omission. We simply cannot know based on the record before us.

Tapp, 8 So.3d at 807.

Similar to the Tapp decision, we find that the particular allegations of ineffective assistance of counsel alleged by the defendant herein cannot be sufficiently investigated by a review of the record alone. In his post-conviction relief application, the defendant requested an evidentiary hearing to obtain the necessary facts to carry his burden of proving his ineffective assistance of counsel claims and to prove that he is entitled to withdraw his guilty plea. The State, in its answer to the defendant’s post-eonviction relief application, also requested an evidentiary hearing arguing that without a hearing, it is “impossible” to determine “what the understanding was between defense counsel and the defendant, if any, with regard to an appeal of his sentences.” The Louisiana Supreme Court has explained the burden of proof necessary in cases, such as the case here, as follows:

In Strickland, the United States Supreme Court set out a two-prong test for proving ineffective assistance of counsel. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, for a defendant to establish that he received ineffective assistance of counsel, he must show (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.” Strickland,, 466 U.S. at 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. In addition to proving that defendant’s attorney’s representation fell below the standard of reasonableness, it is incumbent | <)Upon the defendant in the context of a guilty plea to show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also State v. Washington, 491 So.2d 1337, 1338-39 (La.1986).

State v. Montalban, 00-2739, p. 5 (La.2/26/02), 810 So.2d 1106, 1110.

In the present case, the defendant and State both agreed at the time post-conviction relief was filed that the record was insufficient to determine the issue of whether the defendant’s trial counsel was ineffective. In its answer to the defendant’s application for post-conviction relief, the State requested an evidentiary hearing stating that “[a] hearing must be held to determine what the understanding was between defense counsel and the defendant, if any, with regard to an appeal of his sentences.” Further, the State asserted that without an evidentiary hearing, it would be “impossible” from the record to answer the defendant’s ineffective assistance of counsel claims. In reviewing that same record on appeal, we conclude that further proceedings are indicated. On appeal, this court would have to determine whether the defendant’s trial counsel’s representations fell below an objective standard of reasonableness, however, the circumstances surrounding the defense counsel’s actions in light of the plea agreement are not evident from a review of the record. Accordingly, we find an evidentia-ry hearing is warranted to determine whether defense counsel’s representation was ineffective.

DECREE

For the above reasons, the length of the defendant’s sentences are affirmed. This matter is remanded to the district court for a post-conviction evidentiary hearing and consideration of the defendant’s application for post-conviction relief.

SENTENCE AFFIRMED; REMANDED FOR AN EVIDENTIARY HEARING AND CONSIDERATION OF THE DEFENDANT’S APPLICATION FOR POST-CONVICTION RELIEF.