author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Gabriel JACKSON, Appellant
    No. 52,606-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    LOUISIANA APPELLATE PROJECT, By: Paula Corley Marx, Counsel for Appellant
    GABRIEL JACKSON, Pro Se
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, JASON WAYNE WALTMAN, CHARLES KENNETH PARR, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   McCALLUM, J.

Gabriel Jackson was convicted in absentia of aggravated flight from an officer in violation of La. R.S. 14:108.1(C). Jackson was subsequently adjudicated as a third-felony habitual offender and sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence. Jackson appeals his conviction and sentence.

For the reasons that follow, we affirm.

FACTS

When Shreveport police officer Christopher Hodges drove his patrol SUV onto westbound I-20 from the Murphy Street entrance ramp in Shreveport late on the evening of August 4, 2017, he noticed a black car ("car") traveling at a high rate of speed. Hodges accelerated his vehicle to 90 mph in order to catch up to the car before the vehicles reached the upcoming exit for Jewella Avenue. Hodges then activated his SUV's emergency lights.

Officer Hodges turned his siren on briefly as both vehicles exited at Jewella. When the suspect vehicle did not stop, Officer Hodges turned his siren on again for a brief moment, but the car continued to travel south on Jewella. Hodges turned his siren on again and left it on, but the car continued on Jewella. Hodges saw the car's driver stick his arm out of the window and wave a bit, which Hodges took as a signal that the driver saw him. The vehicles continued a short distance to the intersection of Midway Avenue and Jewella, where the car made a left turn onto Midway through a red light. Midway is a two-lane street with homes on both sides of the street as one moves away from the intersection with Jewella.

As the car proceeded east on Midway, it crossed a double-yellow line in order to pass a vehicle. Hodges, who continued the pursuit with his lights and sirens on, thought the speed limit on Midway was 25 mph and that the suspect's car was pulling away from him. Officer Hodges believed he was traveling at 50 mph at the time.

As the chase continued onto additional residential streets in Shreveport, the car went through several stop signs without coming to a stop. In one instance, the car even went around another vehicle already at a stop sign. Once the car reached Fairy Street, the driver accelerated in an attempt to increase the distance between Hodges' vehicle and his own.

Fairy Street ends in a T-type intersection at Essex Street. The car drove through this intersection, across a ditch, and into a chain-link fence in the yard of an occupied home located on Essex. The driver was unable to exit through his door because the driver's side of the car was against the fence. Officer Hodges ordered the driver to stay seated while Officer Steve Herring, who assisted in the pursuit, detained the passenger. The driver told Officer Hodges that his name was Gabriel Jackson, which was confirmed through his identification. Jackson was arrested for aggravated flight from an officer as well as for multiple traffic violations and taken into custody. Jackson's passenger was released at the scene. The pursuit had lasted approximately four minutes.

On September 7, 2017, Jackson was charged by a bill of information with committing aggravated flight from an officer in violation of La. R.S. 14:108.1(C) by refusing to bring his vehicle to a stop under circumstances wherein human life was endangered.

La. R.S. 14:108.1 defined aggravated flight from an officer as:

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.

Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than five years and may be fined not more than two thousand dollars. La. R.S. 14:108.1(E)(1). Whoever commits the crime of aggravated flight from an officer that results in serious bodily injury shall be imprisoned at hard labor for not more than ten years and may be fined not more than two thousand dollars. La. R.S. 14:108.1(E)(2)(a).

Trial began on April 30, 2018. Jackson, who was released on bond, was present with his attorney as 12 jurors and two alternates were selected, the bill of information was read, and the jury was instructed about the trial process. The proceedings were then adjourned until 9:00 a.m. on the following day.

Jackson was absent when trial commenced at 9:15 on the morning of May 1, 2018. His attorney told the trial judge that he had spoken with Jackson earlier that morning and had actually gone to Jackson's home to bring him to the courthouse. Jackson's car was in the driveway when his attorney arrived at Jackson's home. His attorney then called Jackson to let him know that he was outside. Jackson told his attorney that he was at his aunt's home and would meet him at the courthouse.

The trial judge waited until 9:50 a.m. to proceed in the event that Jackson was running late. Jackson's attorney objected on due process grounds to proceeding in Jackson's absence. Overruling the objection, the trial judge noted that they were permitted to proceed under La. C. Cr. P. arts. 761 and 832. The court also told the attorneys that a sentence would be added to the jury charges that no negative inference should be drawn from the fact that Jackson was not present in court. A writ of attachment was issued for Jackson.

Officer Hodges testified at trial. He described the chase in detail and remarked how some of the streets where the pursuit took place were dark and narrow. Hodges was concerned during the chase because some of the streets were residential. A video camera on his patrol vehicle recorded the chase and its aftermath. Portions of the video were played for the jury. Officer Herring, who assisted Hodges in the pursuit and arrest, also testified at trial.

Jackson was convicted as charged. On June 21, 2018, the State filed an habitual offender bill of information asserting that Jackson was a third-felony offender. Jackson had been sentenced to three years at hard labor after pleading guilty to aggravated battery on August 10, 1995. On March 13, 1997, Jackson was convicted of aggravated burglary. The State filed a second-felony habitual offender bill of information. On May 7, 1997, Jackson was found to be a second-felony habitual offender and was sentenced to 18 years at hard labor.

The habitual offender hearing in this matter occurred on July 11, 2018. Jackson and his attorney were present for the hearing. His attorney filed a motion for a post-verdict judgment of acquittal, which the court denied. Jackson was found to be a third-felony habitual offender and sentenced to life in prison without the benefit of parole, probation, or suspension of sentence. No motion to reconsider the sentence was filed.

On July 13, 2018, a brief hearing was held in order for the State to supplement the record from the hearing two days earlier with a letter from the Department of Public Safety and Corrections indicating that Jackson was under supervision of the Department until July 10, 2014. Jackson and his attorney were also present at this hearing. No objection was made to supplementing the record with the letter. The court clarified that no lapse or cleansing of the 10-year period had occurred.

Jackson has appealed his conviction and sentence.

DISCUSSION

Jackson argues on appeal that: (1) his sentence is unconstitutionally excessive; (2) he was denied effective assistance of counsel when his attorney failed to file a motion to reconsider sentence; and (3) the trial court erred in trying Jackson in absentia without proof in the record that he was voluntarily absent. In a pro se filing, Jackson complains about the State's brief.

Conviction in absentia

Jackson contends that the trial court erred in trying him in absentia without proof that he was in fact, voluntarily absent. He argues that without proof that he was voluntarily absent from his trial, his due process rights were implicated and he is entitled to a new trial.

La. C. Cr. P. art. 831 establishes a defendant's due process right to be present at every stage of the trial when his absence might frustrate the fairness of the proceeding. State v. Landrum , 35,053 (La. App. 2 Cir. 9/26/01), 796 So.2d 94, writ denied , 2003-0493 (La. 2/20/04), 866 So.2d 823. La. C. Cr. P. art. 831, states, in relevant part:

A. Except as may be provided by local rules of court in accordance with Articles 522, 551, and 562, a defendant charged with a felony shall be present at all of the following:
(1) At arraignment.
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made.
(3) At the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence.
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced.
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.

The provisions of art. 831 are not absolute. State v. Williams , 50,468 (La. App. 2 Cir. 2/24/16), 190 So.3d 737, writ denied , 2016-0541 (La. 3/13/17), 216 So.3d 801, cert. denied , --- U.S. ----, 138 S. Ct. 387, 199 L.Ed. 2d 287 (2017). Exceptions, including for voluntary absence, are found in La. C. Cr. P. art. 832, which states, in part:

A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and either of the following occur: (1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial.

A jury trial commences when the first prospective juror is called for examination. La. C. Cr. P. art. 761.

In the case of a defendant who voluntarily absented himself from trial, the next inquiry is whether the defendant's attorney was present at every stage of the proceeding. If so, the defense attorney's presence was sufficient to satisfy the due process requirements of La. C. Cr. P. arts. 831 and 832. State v. Williams , supra ; State v. Landrum , supra .

In State v. Landrum , the defendant was present during the first day of trial when the jury was selected. No further proceedings were had on that day as court was adjourned until the next day for the taking of evidence. However, the defendant was absent the next morning. The trial court held a hearing to determine whether the defendant's absence was voluntary and the trial could continue in his absence. A deputy sheriff testified that an informant had told him that the defendant had "caught a bus" the evening before. However, the most compelling evidence to this Court was defense counsel's statement that he attempted to contact the defendant and his family. He could not explain his client's whereabouts. This Court also noted that the defendant failed to offer any justification for his absence either at sentencing or in his appeal. Therefore, this Court found no abuse of discretion in the lower court's finding that the defendant's absence was voluntary and the trial could continue without him.

Jackson was present with counsel when the jury was chosen and when the bill of information was read to the jury. Thus, he was present when trial commenced. After Jackson did not appear for the second day of trial, his counsel informed the court that he had gone to Jackson's home that morning and saw his vehicle in the driveway. According to his attorney, Jackson told him over the phone that he was at his aunt's home and would meet him. His attorney added that he had not heard from Jackson despite calling him as well as leaving two text messages. The trial court waited approximately an hour to see if Jackson would appear before moving forward with the trial.

Jackson argues that the trial court erred in continuing his trial in absentia without proof on the record that he was voluntarily absent. However, it was reasonable for the court to assume Jackson's absence was voluntary when he was present on the first day, but did not show for court on the second day of trial. Jackson's attorney had been in contact with him earlier that morning when Jackson changed their plans on how he would get to the courthouse. His later attempts to contact Jackson when he did not appear were unsuccessful. Furthermore, no explanation was provided for Jackson's absence. Finally, we note that Jackson's counsel was present for the remainder of the trial. Based on these circumstances, we conclude that it was not an abuse of discretion for the trial court to continue Jackson's trial in his absence. Of all the rights granted to defendants by the Constitutions of our country and state, invidiously manipulating the criminal justice system is not one of them.

Excessive sentence

Jackson argues that his life without benefits sentence as a third-felony offender is unconstitutionally excessive considering his predicate offenses of aggravated battery and aggravated burglary, the facts of this case, and that the maximum sentence for aggravated flight from an officer when no bodily injury was sustained is five years at hard labor and a fine of not more than two thousand dollars. He contends that his sentence makes no measurable contribution to acceptable goals of punishment and amounts to nothing more than purposeful imposition of pain and suffering.

No motion to reconsider sentence was filed. When a defendant fails to file a timely motion to reconsider sentence, the appellate court's review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Jones , 41,449 (La. App. 2 Cir. 9/20/06), 940 So.2d 61 ; State v. Duncan , 30,453 (La. App. 2 Cir. 2/25/98), 707 So.2d 164.

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Mandigo , 48,801 (La. App. 2 Cir. 2/26/14), 136 So.3d 292, writ denied , 2014-0630 (La. 10/24/14), 151 So.3d 600. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Hollins , 50,069 (La. App. 2 Cir. 8/12/15), 174 So.3d 710.

The habitual offender law has been found constitutional in its entirety, and the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson , 1997-1906 (La. 3/4/98), 709 So.2d 672. The defendant has the burden to rebut the presumption that a mandatory minimum sentence is constitutional. This means he must clearly and convincingly show that his situation is exceptional, that because of unusual circumstances, the defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson , supra ; State v. Henry , 42,416 (La. App. 2 Cir. 9/19/07), 966 So.2d 692, writ denied , 2007-2227 (La. 8/29/08), 989 So.2d 95.

The sentence mandated under the version of La. R.S. 15:529.1(A)(3)(b) for a third-felony offender in effect at the time of the offense was:

(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
.....
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B)... the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Jackson's underlying felony of aggravated flight from an officer and his predicate felonies of aggravated battery and aggravated burglary were all defined as crimes of violence under La. R.S. 14:2(B) at the time the crime of aggravated flight from an officer was committed. Thus, a life without benefits sentence was mandated under the habitual offender law.

In State v. Welch , 45,950 (La. App. 2 Cir. 1/26/11), 57 So.3d 442, writ denied , 2011-0423 (La. 9/16/11), 69 So.3d 1145, the defendant was adjudicated an habitual offender after being convicted of aggravated flight from an officer and sentenced to life imprisonment without benefits. His prior felony offenses were for possession of a Schedule I CDS (Ecstasy) and attempted possession with intent to distribute a Schedule II CDS (cocaine). At the time of his underlying offense, La. R.S. 15:529.1(A)(1)(b)(ii) provided that if the third felony and the two prior felonies were felonies defined as a crime of violence under R.S. 14:2(B), or as a violation of the Uniform Controlled Substances Law punishable by imprisonment for ten years or more, then the penalty was imprisonment for life without benefits. This Court found that his mandatory sentence was not unconstitutionally excessive, even though no one was hurt in the underlying offense and the two predicate felonies were nonviolent offenses.

In contrast, all three of Jackson's offenses are defined as crimes of violence under the law. Jackson, who was 41 years old at the time, endangered the public by fleeing from police at night while driving at high speeds and repeatedly ignoring traffic-control devices. Segments of the chase took place on narrow residential streets. It is of no significance that Jackson's attorney elicited testimony from the police officers that once the chase ended with Jackson's vehicle failing to negotiate a turn and crashing into a residential fence, an unarmed Jackson was cooperative and did not appear to be under the influence. No doubt he should have been. We note that Jackson did not have many options to flee on foot at the conclusion of the car chase as he was essentially trapped by the fence on one side and his passenger on the other side. Finally, we additionally note that according to the factual basis for Jackson's guilty plea to aggravated battery, his charge stemmed from his involvement in a drive-by shooting in which Jackson had been named by the victim as the shooter. Jackson has not shown that his situation is exceptional. In fact, his actions betray a complete disregard for the safety of himself or others. His life sentence without benefits is not shocking to the sense of justice.

Assistance of counsel

Jackson argues that his trial counsel rendered ineffective assistance of counsel when he failed to file a motion to reconsider sentence following the imposition of the life sentence. He urges that he should not be precluded from having his sentence reviewed due to his trial counsel's failure to file a motion to reconsider sentence, and there was no strategic reason not to file a motion to reconsider the imposition of a life sentence. He maintains that there was a reasonable probability the sentence imposed would have been different had the motion been filed.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing. However, when the record is sufficient, an appellate court may resolve this issue on direct appeal in the interest of judicial economy. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 2017-0966 (La. 4/27/18), 239 So.3d 836.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. A claim of ineffectiveness of counsel is analyzed under the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, to establish that his attorney was ineffective, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that counsel's deficient performance prejudiced his defense and that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland , supra ; State v. Reese , 49,849 (La. App. 2 Cir. 5/20/15), 166 So.3d 1175, writ denied , 2015-1236 (La. 6/3/16), 192 So.3d 760.

The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffective assistance of counsel may only be found if a defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different. State v. Brooks , 52,334 (La. App. 2 Cir 11/14/18), 260 So.3d 713 ; State v. Jones , 46,712 (La. App. 2 Cir. 11/02/11), 80 So.3d 500, writ denied , 2012-0016 (La. 08/22/12), 97 So.3d 356.

Jackson has not shown that had his trial counsel filed a motion to reconsider sentence, there was a reasonable probability that he would have received a sentence other than the mandatory life sentence prescribed by law. Accordingly, this argument is without merit.

Pro se supplement

Jackson filed a one-page correspondence with this Court in which he complained about the State's brief, alleging that it contained a number of falsities used by the State to support his life sentence. Jackson asks this Court to assist him, as his rights have been violated. There is no merit to this complaint.

CONCLUSION

Gabriel Jackson's conviction and sentence are AFFIRMED.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Troy HOPKINS, Appellant
    No. 52,660-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    TROY HOPKINS, Pro Se
    JAMES E. STEWART, SR., District Attorney, JASON W. WALTMAN, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   STONE, J.

The defendant, Troy Hopkins, was convicted of manslaughter pursuant to La. R.S. 14:31, adjudicated as a third-felony offender and sentenced to the mandatory term of life imprisonment without benefits. His conviction and sentence were affirmed on appeal. State v. Hopkins , 34,119 (La. App. 2 Cir. 12/20/00), 774 So.2d 1178. Hopkins filed a motion to correct illegal sentence under State ex rel. Esteen v. State , 16-0949 (La. 1/30/18), 239 So.3d 233. The trial court granted the motion and set the matter for resentencing. Hopkins was resentenced to 65 years at hard labor. Hopkins appeals his sentence. For the following reasons, Hopkins' sentence is affirmed and the matter is remanded for correction of the minutes.

FACTS

On October 20, 1999, Hopkins was convicted by the jury of the responsive verdict of manslaughter, in violation of La. R.S. 14:31. The following facts are taken from this Court's prior opinion on appeal of Hopkins' conviction and original sentence:

On August 31, 1997, at approximately 3:00 p.m., Defendant shot and killed the victim, Roderick Adger, while on the way to make a drug exchange. Mr. Adger's friend, Amy White, was present during the shooting.
Mr. Adger, who lived with his girlfriend in a house on Lyon Street, contacted Ms. White, who lived in Mr. Adger's home on Malcolm Street, about a half block away. Mr. Adger, disturbing Ms. White's sleep, informed her that Defendant would be arriving at the house on Malcolm Street, at which time Ms. White was to go to Mr. Adger's residence on Lyon Street and inform him of Defendant's arrival. Ms. White informed Mr. Adger of Defendant's arrival at the Lyon Street address, at which time Mr. Adger armed himself with his .38 caliber pistol hidden under his shirt and sagged pants.
Himon Jones, Jr., Mr. Adger's first cousin, had just arrived at Mr. Adger's Lyon Street address to deliver a vehicle belonging to Mr. Adger's girlfriend, Philea, on which he had been making repairs. Mr. Adger, accompanied by Ms. White and Mr. Jones, drove the vehicle to the Malcolm Street address to meet Defendant. While at her home, Ms. White secured her nine-millimeter pistol in a brown paper bag to carry with her on the drug transaction.
Mr. Adger, Ms. White, Mr. Jones and Defendant then left the Malcolm Street address together in the vehicle. Seated in the four-door vehicle were Mr. Adger in the driver's seat, Defendant in the front passenger seat, and Mr. Jones and Ms. White in the backseat. Mr. Jones testified that, after having traveled only a short distance, he noticed that Defendant was pointing a pistol at him. Mr. Jones then jumped from the moving vehicle. Startled by Mr. Jones' immediate departure from the vehicle, Ms. White looked up to discover that Defendant was pointing a pistol at the side of Mr. Adger's head. Defendant demanded whatever drugs and money Mr. Adger possessed, which Mr. Adger turned over. As the remaining trio drove down Wallace Street toward Midway Street, only a few blocks from the initial point of departure, Defendant climbed between the bucket seats of the car to the back seat, keeping his pistol pointed at Mr. Adger. Ms. White requested that she and Mr. Adger be released since Defendant had what he wanted.
Once the vehicle was stopped at the intersection of Wallace Street and Midway Street, Defendant agreed to release Ms. White; however, Ms. White did not want to leave the vehicle without Mr. Adger. Ms. White exited the vehicle and waited near the trunk of the vehicle on the passenger side, disregarding Defendant's request that she walk away. Defendant told Ms. White to open the door on the front passenger side for Mr. Adger and to then move back. Mr. Adger, who was wearing a seat belt, was told to slide out of the unfastened seat belt. Mr. Adger managed to slide across to the passenger side and exit the vehicle. Suddenly, before Mr. Adger could completely turn toward the vehicle or utter Ms. White's name, Ms. White stated that she witnessed Defendant fire his gun at Mr. Adger, wounding him in the right side of his chest. Mr. Adger then returned fire in the direction of Defendant.
Ms. White testified that she did not see Mr. Adger with his gun out at the time Defendant first fired. She further stated that Mr. Adger, after being wounded, said, "Amy, serve him." This meant that Mr. Adger wanted Ms. White to retaliate. Ms. White fired all of her ammunition in the direction of Defendant and then fled the scene, running approximately four blocks to her house on Malcolm Street. After returning fire, Defendant drove off in the vehicle with the stolen drugs. The vehicle was later found totally destroyed by fire. Ms. White returned to the scene several minutes later and found Mr. Adger a few houses away from the scene of the shooting on Michel Street, fatally wounded ; Mr. Adger later died at the hospital from the gunshot wound to the right side of his chest. The bullet entered the right side of Mr. Adger's chest and traveled in a descending lateral direction damaging his right lung, diaphragm, stomach and liver.
Soon after the shoot-out, officers arrived to process the crime scene. Ms. White was questioned briefly, but left the crime scene to check on Mr. Adger at the hospital. The following day, Ms. White was shown a photographic lineup and immediately identified Defendant as the person who shot Mr. Adger. Mr. Jones was shown the same photographic lineup on September 3, 1997, and also immediately identified Defendant as the person who shot Mr. Adger. Defendant was arrested later that night and was eventually indicted by a grand jury for first degree murder. The indictment was later amended, however; and Defendant was indicted for second degree murder. State v. Hopkins, supra.
* * *

Hopkins was adjudicated a third-felony offender based on prior convictions of simple robbery and unauthorized entry of an inhabited dwelling. Hopkins was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence.

On May 22, 2018, Hopkins filed a motion to correct illegal sentence pursuant to Esteen, supra. The trial court granted the motion, finding that Hopkins was one of the defendants whom the ameliorative changes in the habitual offender law was designed to benefit. In a written ruling, the trial court calculated the sentencing range for Hopkins under the ameliorative provisions to be 26.6 years to 80 years. At resentencing on July 25, 2018, the trial court imposed a midrange sentence of 65 years at hard labor. A motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

In two assignments of error, Hopkins' appellate counsel challenges his sentence as excessive and argues that it is not particularly tailored to his circumstances and the case. Appellate counsel provides a brief argument that the sentence is excessive as the trial court "considered only the facts of the case prior to imposing sentence, making no effort to determine who Troy Hopkins is in the larger scheme of things."

Pro se, Hopkins challenges the trial court's calculation of the appropriate sentencing range under the ameliorative provisions and asserts that the trial court failed to consider all appropriate factors before imposing sentence. As all assignments of error concern the sentence, we will address them together as follows.

Calculation of sentencing range

In 2001, the legislature amended the Habitual Offender Law. Pursuant to La. R.S. 15:529.1(A)(1)(b)(i), as amended, a third-felony offender shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. La. R.S. 15:529.1(A)(1)(b)(ii) no longer authorized a life sentence for a third-felony offender unless the third felony and the two prior felonies were either (1) felonies defined as a crime of violence under La. R.S. 14:2(13) ; (2) a sex offense as defined in La. R.S. 15:540 et seq. when the victim is under the age of 18 at the time of the offense; or (3) as a violation of the Uniform Controlled Dangerous Substance Law punishable for 10 years or more or any other crime punishable by imprisonment for 12 years or more. However, the pre-2001 version required imposition of a life sentence for a third-felony offender if the third felony or any of the prior felony offenses fell into the categories listed above.

La. R.S. 15:529.1(G) states that any sentence imposed under the habitual offender provisions shall be at hard labor without benefit of probation or suspension of sentence. Regarding the imposition of a habitual offender sentence without benefit of parole, the conditions imposed on the sentence are determined by the sentencing provisions for the underlying offense. State v. Sullivan, 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175 ; State v. Thurman , 46,391 (La. App. 2 Cir. 6/22/11), 71 So.3d 468, writ denied , 11-1868 (La. 2/3/12), 79 So.3d 1025.

Excessive Sentence

Appellate courts utilize a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 16-0959 (La. 5/1/17), 219 So.3d 332.

The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. 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) ; State v. DeBerry , supra.

The important elements which should be considered are the defendant's personal history (e.g., age, family ties, marital status, health, employment record, etc.), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. DeBerry , supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. DeBerry , supra ; State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 07-0144 (La. 9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , supra.

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 15-0608 (La. 1/25/16), 184 So.3d 1289.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Allen , supra. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

In the matter sub judice , Hopkins, pro se, challenges the trial court's calculation of his sentencing range under the ameliorative sentencing provisions. The trial court properly calculated Hopkins' sentencing exposure in its written ruling on the motion to correct illegal sentence. Hopkins' current offense of manslaughter is defined as a crime of violence under La. R.S. 14:2(13). Hopkins' first predicate felony was simple robbery which is also a qualifying crime of violence. However, his second predicate felony was unauthorized entry of an inhabited dwelling, which is not a qualifying felony. Since all three of his felonies do not meet the statutory requirements for a life sentence, La. R.S. 15:529.1(A)(1)(b)(ii), the trial court properly sentenced Hopkins under La. R.S. 15:529.1(A)(1)(b)(i), the 2001 amended version. Two thirds of 40 years is 26.67 years; twice 40 years is 80 years. Thus, Hopkins' sentencing exposure under the more lenient provisions to which he was entitled was not less than 26 years, nor more than 80 years. His sentence imposed of 65 years falls mid-range.

Moreover, we find that the midrange sentence of 65 years is not excessive. At resentencing, the trial court noted that it had obtained the original case file and had reviewed all of the police reports and written statements. The trial court recited the pertinent facts and found that (1) there is an undue risk that during the period of a suspended sentence or probation, Hopkins would commit another crime, (2) Hopkins is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution, and (3) a lesser sentence would deprecate the seriousness of the offense. See La. C.Cr.P. art. 894.1.

As aggravating factors, the court found that Hopkins' behavior manifested deliberate cruelty to the victim and that he knowingly created a risk of death or great bodily injury to more than one person. Characterizing this incident as basically a neighborhood shootout, the trial court noted that many people could have been harmed since actual violence, with a weapon, was used resulting in death and causing significant harm to the victim's family. The trial court stated that there were not any applicable mitigating factors, except it was "somewhat mitigating" that Mr. Adger may have also been armed, which would support the responsive verdict of manslaughter rather than second degree murder.

Thus, we find that the trial court adequately complied with La. C.Cr.P. art. 894.1 and this midrange sentence of 65 years for the shooting death of Mr. Adger in a residential area over a drug deal gone awry does not shock the sense of justice.

Error Patent

The record does reveal one error patent - the trial court failed to specify that Hopkins' sentence is to be served without probation or suspension of sentence. La. R.S. 15:529.1(G) states that any sentence imposed under the habitual offender provisions shall be at hard labor without benefit of probation or suspension of sentence. This provision is self-implementing and requires no action by this Court.

However, while the minutes reflect that the sentence is "subject to the conditions provided by law," because the Department of Corrections relies on the minutes for calculation of time, we remand this matter for specification in the minutes that Hopkins' sentence is to be served without probation or suspension of sentence.

CONCLUSION

For the foregoing reasons, the defendant's sentence is affirmed and the matter is remanded for correction of the minutes.

SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF THE MINUTES.


author: WILLIAMS, C.J.

text:
    J & J LIVESTOCK, LLC, Plaintiff-Appellee v. MUSA SLAUGHTERHOUSE, LLC, Musa Simreen and Michael Habash, Defendants-Appellants
    No. 52,651-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    AYRES, SHELTON, WILLIAMS, BENSON & PAINE, LLC, By: Jody T. Benson, Shreveport, Alexandra E. Vozzella, Baton Rouge, Counsel for Appellants
    COLVIN, SMITH & McKAY, By: Daniel N. Bays, Jr., Homer, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   WILLIAMS, C.J.

The defendants, Musa Slaughterhouse, LLC, Musa Simreen and Michael Habash, appeal a district court judgment denying their petition to nullify a default judgment that was rendered in favor of the plaintiff, J & J Livestock, LLC. For the following reasons, we affirm in part and reverse in part.

FACTS

This dispute arose as a result of an open account between the plaintiff, J & J Livestock, LLC ("J & J"), and the defendant, Musa Slaughterhouse, LLC ("Musa Slaughterhouse"). The defendant, Musa Simreen, is the owner of Musa Slaughterhouse; the defendant, Michael Habash ("Habash"), testified that he is the manager of the slaughterhouse. Musa Slaughterhouse is domiciled in Tampa, Florida; Musa Simreen is a resident of New York; Habash is a citizen of Canada. The plaintiff, J & J, is domiciled in Claiborne Parish, Louisiana.

In December 2014, J & J and Musa Slaughterhouse entered into an agreement to sell/buy livestock. As a result of business transactions between the entities, an open account was created. Generally, the parties' arrangement was as follows: Habash and James Garcia (the owner of J & J) would discuss orders and shipping arrangements via telephone conversations and/or text messages; once the order and shipping arrangements were determined, J & J would ship the orders to Musa Slaughterhouse's headquarters in Tampa, Florida. Normally, once Musa Slaughterhouse received the shipment from J & J, Habash would either mail a check to J & J, or would make a direct wire transfer to J & J's account. On the occasions when Musa Slaughterhouse's payment was insufficient to pay for the entire shipment, J & J would apply the payment to the outstanding balance on the open account. Between December 2014 and April 2015, 14 truckloads of livestock were transported from Claiborne Parish to Musa Slaughterhouse.

During that period, the defendants made approximately 22 payments to the plaintiff.

On April 28, 2015, Habash's nephew and at least two other men traveled to Louisiana to pick up the fourteenth shipment of livestock/fowl. Garcia and Habash discussed the transaction over the telephone, and according to Garcia, Habash instructed him to "[j]ust let my nephew pick it all out." Habash's nephew selected certain livestock and fowl, and transported the load back to the Musa Slaughterhouse headquarters in Florida. At some point thereafter, Musa Slaughterhouse stopped making payments on the open account.

On June 24, 2015, J & J filed a "Petition on Open Account," naming Musa Slaughterhouse, Musa Simreen and Michael Habash as defendants. On June 29, 2015, the defendants were served with the petition via Louisiana's long-arm statute. The defendants did not file a response to the plaintiff's petition.

At the plaintiff's request, on August 3, 2015, the trial court entered a preliminary judgment of default against the defendants. On August 10, 2015, the plaintiff filed into the record the required affidavits of mailing of service of process to each of the defendants through the long-arm statute. The citations and petitions were mailed to each defendant at Musa Slaughterhouse's address in Tampa, Florida. The plaintiff attested that the process was sent by United States certified mail, in envelopes properly addressed to each defendant, with sufficient postage attached. The exhibits attached to the affidavits show that three certified mail notices were delivered to Musa Slaughterhouse's address on June 29, 2015. The return receipts were signed; however, the signatures were not legible.

Thereafter, on September 16, 2015, the district court entered a confirmation of the default judgment, finding that the defendants were liable, in solido , to the plaintiff for $76,306.11, plus legal interest from the date of judicial demand. The court also awarded to the plaintiff $2,500 in attorney fees and court costs. J & J made the judgment executory in Florida, resulting in the seizure of Musa Slaughterhouse's property.

On April 4, 2018, the defendants filed a pleading entitled "Petition for Nullity and to Stay Execution of Judgment and Request for Expedited Consideration." The defendants argued that Louisiana lacked personal jurisdiction over them because Musa Slaughterhouse is a Florida company; Musa Simreen is a resident of New York; and Michael Habash is a resident of Canada. They also argued that service of process was improper because the "green cards" from the certified mail were signed by "an unknown person," rather than by Musa Simreen, who was Musa Slaughterhouse's agent for service of process. According to the defendants, the person who signed the receipt of service cards for all three defendants was not authorized to do so.

A hearing was conducted on May 10, 2018, during which two witnesses testified, James Garcia and Michael Habash. Garcia testified that Habash learned of his livestock company from someone in Georgia and contacted him about purchasing livestock for Musa Slaughterhouse. Garcia testified as follows:

I did all my business with Michael Habash.
* * *
He would call me on the phone or send me text messages about what he needed and when he needed them.
* * *
And we provided freight for him, big truck loads, the first four or five loads, and then it'd be cut back to gooseneck loads, and then the last load, he sent his own people up here to pick up the load.

Garcia explained that when Habash called to place the first 13 orders, Habash specified "what type animal, what size animal." He stated that he shipped the livestock to Musa Slaughterhouse in Tampa, Florida. With regard to the fourteenth order/shipment from J & J to Musa Slaughterhouse, Garcia testified as follows:

We had been shipping big truck loads and then cut it to gooseneck loads, and then on load 14, he decided to send his own people up here. He thought he could do the freight cheaper. So, he sent his own truck and trailer up here with three or four men and one of them was his nephew, and they brought a trailer full of chicken crates because on that invoice * * * we shipped chickens, turkeys, ducks, goats, lambs, everything back on that fourteenth load[.] * * * And the nephew is the gentleman that pick[ed] out all the lambs. I had hundreds of lambs and goats there, and birds, and his nephew is the person that picked everything out and he had some help to help him load it, and so they loaded the animals and went back to Florida.
* * *
[A]nd I talked to Mike [Habash] several times while they were there loading the animals and - to find out if he wanted certain kinds. The order had changed a little bit, and he finally told me, "Just let my nephew pick it all out."
* * *

With regard to the payments he received from Musa Slaughterhouse, Garcia testified as follows: the first three or four orders for livestock were "very big loads," that averaged $60,000-$70,000 each, and Habash "paid them in full immediately"; Habash began "cutting back and not paying the loads in full"; Habash "had various stories he told, and then he just quit paying for them altogether"; Musa Slaughterhouse ordered approximately $500,000 in livestock over a five-month period; and he received 22 payments from Musa Slaughterhouse.

On cross-examination, Garcia testified that Habash never came to select or retrieve any livestock. He stated that he believed Habash's nephew was employed by Musa Slaughterhouse because when he (Garcia) went to Musa Slaughterhouse, he saw Habash's nephew behind the counter "reaching in the meat box to bring out meat."

Habash testified as follows: he is a citizen of Canada; he is not a dual citizen of the United States; he does not own a home or any immovable property in the state of Florida; Musa Simreen lives in New York and has never lived in Florida; prior to the court hearing in this matter, he has never been to the state of Louisiana; prior to the transactions at issue in this case, Musa Slaughterhouse had never purchased livestock from anyone in Louisiana; Musa Slaughterhouse is not registered in Louisiana, does not have an office in this state, does not have an agent for service of process in this state, and does not own any movable or immovable property in this state; he could not recall whether he contacted Garcia first regarding purchasing livestock; the plaintiff delivered the first 13 loads to Musa Slaughterhouse; the men who traveled to Louisiana to select and transport the last load of livestock were not employed by Musa Slaughterhouse; his nephew was not an employee of Musa Slaughterhouse "at that time"; his nephew was "17 or 18" years old at the time and "would hang around the slaughter plant just like a kid would"; his nephew just "went with the guys who picked up the load" and was not paid to do so; the men who picked up the load were paid a "flat fee" to transport the load; he does not recall the name of the driver he hired to transport the livestock; he found a driver to transport the livestock on one occasion because the plaintiff was unable to deliver it at that time; he was an employee, not an owner, of Musa Slaughterhouse; the slaughterhouse was owned by Musa Simreen; he was named a defendant in the lawsuit because he placed the orders and communicated with the plaintiff regarding the orders; none of the employees at Musa Slaughterhouse had the authority to accept service of process; he was not personally served with the lawsuit prior to the judgment of default; and he was not aware the lawsuit had been filed until he learned of the default judgment.

On cross-examination, Habash testified that he hired a driver to travel to Louisiana to transport the fourteenth load of livestock to Florida; his nephew traveled with the driver because "he wanted to go for a ride"; he does not know if anyone else accompanied his nephew and the driver; he and Garcia transacted business via telephone "a couple of times a week"; he does not recall whether the payments for the livestock were made by wire transfers or by check; and he and Musa Simreen were both authorized to sign checks on behalf of Musa Slaughterhouse.

At the conclusion of the hearing, the district court denied the petition to nullify the judgment of default, stating:

Based upon the testimony, particularly in light of the fact that it doesn't matter to me whether Mr. Habash employed his nephew and the driver, or he contracted with the nephew and driver, there were * * * physical contacts with the State of Louisiana on that fourteenth load, and I don't see that that's - it doesn't appear to be disputed. Mr. Habash said, yes, that did happen. There were regular contacts also in terms of a relationship from 2014 to 2015. Fourteen loads of animals for slaughter is a lot of loads in a short period of time. At least, I would think so, particularly when you look at the cost of the animals that were purchased.
* * *
It doesn't seem to be any dispute that the individuals involved in this LLC, Musa Simreen and Michael Habash, are not residents of Tampa, Florida.
* * *
Nevertheless, there were regular contacts and frequent contacts with J & J Livestock * * * and those were by telephone and by payment either wire transfers, interstate commerce had to be used, or the post office depending upon whether checks were sent, and although there was some dispute as to payment by check, there was still instrumentalities involved in interstate commerce for the payment of these. The livestock was delivered to Tampa, Florida, from Claiborne Parish, Louisiana, and at one point, that would be April 28, 2015, Mr. Habash, as an employee of Musa Slaughterhouse, engaged a driver and someone else to pick up the livestock in Claiborne Parish, Louisiana. I feel like that's sufficient minimum contact for establishing the personal jurisdiction under the provisions and authority of International Shoe versus Washington , and the cases following that. * * * It is litigation that was filed specifically related to those contacts. So, I do think that prong of the personal jurisdiction has been met.
With regard to Mr. Habash's statement that he did not know of the certified mail that was sent to Musa Slaughterhouse's address * * * I cannot imagine that no one in that office said to either Mr. Habash or Mr. Simreen, hey, we've got certified mail that's come here. I just don't believe that.
* * *

The defendants now appeal.

DISCUSSION

The defendants contend the trial court erred in denying their petition to nullify and stay the execution of the judgment of default. They argue that they "lacked sufficient contacts with the state of Louisiana to establish in personam jurisdiction under the United States Constitution." Therefore, according to the defendants, the default judgment is an absolute nullity.

The Louisiana long-arm statute provides for the exercise of personal jurisdiction over a nonresident, who acts directly or through an agent, as to a cause of action arising from specific enumerated activities performed by the nonresident, including (for purposes of this matter) transacting any business in this state. La. R.S. 13:3201(A)(1). Additionally, La. R.S. 13:3201(B) provides:

B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

Comment (d) to La. R.S. 13:3201 explains:

(d) "Transacting business", as used in Subdivision (a), is a term which is much broader than "doing business" as defined by earlier Louisiana cases, and the phrase "does ... business" of Subdivision (d) conferring personal jurisdiction over a nonresident on a cause of action arising ex delicto or quasi ex delicto. It is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase "engaged in a business activity" of R.S. 13:3471(1).[ ]

The following is applicable to the exercise of personal jurisdiction over a nonresident defendant:

The limits of the long-arm statute and constitutional due process are coextensive, and the sole jurisdictional inquiry is an analysis of constitutional due process requirements. Ruckstuhl v. Owens Corning Fiberglas Corp. , 98-1126 (La. 4/13/99), 731 So.2d 881, cert. denied , 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999) ; Lewis v. Pine Belt Multipurpose Cmty. Action Acquisition Agency, Inc. , 48,827 (La. App. 2 Cir. 4/9/14), 138 So.3d 776, writ denied , 2014-0965 (La. 8/25/14), 147 So.3d 1119.
In order to subject a nonresident defendant to personal jurisdiction, due process requires that the defendant have certain minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington , 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ; Ruckstuhl , supra ;
Devillier v. Farmers Ins. Exch. , 49,562 (La. App. 2 Cir. 1/14/15), 161 So.3d 993. In applying the "minimum contacts" prong, the United States Supreme Court has differentiated between general and specific jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ; Devillier , supra . A state exercises general jurisdiction when the defendant's contacts with the state are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant's contacts with the forum. Greenway Leasing, L.P. v. Star Buffet Management, Inc. , 45,753 (La. App. 2 Cir. 1/26/11), 57 So.3d 397. The two-part minimum contacts/fairness analysis applies to the assertion of both specific and general jurisdiction. de Reyesv. Marine Mgmt. and Consulting, Ltd. , 586 So.2d 103 (La. 1991).
When a forum seeks to exercise specific jurisdiction over an out-of-state defendant who has not consented to suit there, the defendant's purposeful direction of its activities at a resident of that forum with litigation resulting from alleged injuries arising out of or related to those activities satisfies the requirement of meaningful minimum contacts. de Reyes , supra ; Greenway Leasing , supra . An act committed outside the state that has consequences or effects in the state will suffice as a basis for jurisdiction in a suit arising from those effects if the consequences or effects are seriously harmful and were intended or highly likely to follow from the nonresident defendant's conduct. Devillier , supra ; Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc. , 39,065 (La. App. 2 Cir. 10/27/04), 887 So.2d 624, writ denied , 2004-2935 (La. 2/4/05), 893 So.2d 872, citing Guidry v. United States Tobacco Co., Inc. , 188 F.3d 619 (5th Cir.1999). However, when the cause of action does not arise out of the defendant's purposeful contacts with the forum, due process requires that the defendant be engaged in continuous and systematic contact to support the exercise of general jurisdiction. Devillier , supra ; Lewis , supra .
Contacts may be effected by mail and electronic communication, as well as physical presence. Greenway Leasing , supra , citing Spomer v. Aggressor Intern., Inc. , 2000-1646, (La. App. 1 Cir. 9/28/01), 807 So.2d 267, writ denied , 2001-2886 (La. 1/25/02), 807 So.2d 250.
The second phase of the analysis is a determination of the fairness of the assertion of jurisdiction. The defendant's conduct and connection with the forum state must be such that it should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz , 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ; Greenway Leasing , supra .
Once the plaintiff proves the defendant has sufficient minimum contacts to meet his burden of proof, a presumption of reasonableness of jurisdiction develops. Then the burden shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice that the presumption of reasonableness created by the defendant's minimum contacts with the forum is overcome. Spomer , supra .

In Asahi Metal Indust. Co. v. Superior Court , 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Court directed that the forum court examine the following to determine reasonableness of the jurisdiction: the defendant's burden in litigating in the forum state, the forum state's interest, the plaintiff's interest in convenient and effective relief, the judicial system's interest in efficient resolution of controversies, and the state's shared interest in furthering fundamental social policies.

An appellate court conducts a de novo review of a trial court's legal ruling on an exception of lack of personal jurisdiction. Devillier v. Farmers Ins. Exch. , supra ; Lewis v. Pine Belt Multipurpose Cmty. Action Acquisition Agency, Inc. , supra ; Greenway Leasing, L.P. , supra .

In the instant case, it is undisputed that the plaintiff's lawsuit arose out of and is related to the defendant's contacts with Louisiana. Consequently, the primary issue is whether the defendants had sufficient contacts with Louisiana such that the maintenance of this lawsuit does not offend the traditional notions of fair play and substantial justice.

In IberiaBank v. Thornton , 45,332 (La. App. 2 Cir. 6/23/10), 44 So.3d 720, the bank filed a lawsuit against the defendants as guarantors of various loans made by the bank to the borrower (a company owned by the individual defendants). The bank was organized and domiciled in Louisiana; the defendants and their company were residents of Arkansas. Over a period of approximately three years, the bank made multiple loans to the defendants, the amounts of which exceeded $15 million. Thereafter, the defendants defaulted on the loans and the bank filed a lawsuit in Louisiana. The defendants filed an exception arguing that Louisiana did not have personal jurisdiction over them. The district court denied the exception and granted summary judgment in favor of the bank. On appeal, this Court affirmed, stating:

Defendants make much of the fact that neither set foot in Louisiana. We note that jurisdiction may not be avoided merely because the defendants did not physically enter the forum state. A review of the record makes clear that all of the loan documents, including the guaranties identified the Iberia office in Monroe, Louisiana, and it was also the location where the payments on notes were made.

Id. at 723 (internal citation omitted).

Herein, the record reveals that Habash, acting on behalf of Musa Slaughterhouse, contacted Garcia at his place of business in Claiborne Parish, Louisiana, regarding the purchase of livestock. The parties developed an ongoing business relationship, and over the next several months, Habash and Garcia made multiple business transactions, resulting in the purchase, transport, and slaughter of approximately $500,000 worth of livestock. Habash, who was in the habit of transacting business with various livestock companies on behalf of Musa Slaughterhouse, testified that he knew he was transacting business with a Louisiana company. Further, the defendants do not dispute that the transactions were made, and they did not dispute the amount of the debt owed.

Louisiana has a strong interest in protecting its corporate citizens who have sustained any injury. See IberiaBank , supra . Additionally, the plaintiff is entitled to convenient and effective relief, and should not be expected to travel to Florida to litigate issues that were created and consummated in Louisiana. We find that by incurring and failing to pay a debt owed to a Louisiana company, with whom they had established an ongoing business relationship, Habash and Musa Slaughterhouse should reasonably have anticipated being haled into court in Louisiana. Consequently, we find that there are sufficient minimum contacts with the forum state to establish personal jurisdiction over Habash and Musa Slaughterhouse.

However, according to the testimony of the witnesses, Musa Simreen did not negotiate the terms of the contract, order livestock or make any payments to the plaintiff, either individually or on behalf of Musa Slaughterhouse. Therefore, the plaintiff failed to prove that Simreen had sufficient minimum contacts with the state of Louisiana. Consequently, we find that Louisiana does not have personal jurisdiction over Simreen, and the default judgment rendered against him is an absolute nullity and is hereby reversed.

CONCLUSION

For the foregoing reasons, the default judgment against the defendants, Musa Slaughterhouse, L.L.C. and Michael Habash, is affirmed. The default judgment against the defendant, Musa Simreeen, is hereby reversed. Costs of this appeal are assessed to the defendants, Musa Slaughterhouse, L.L.C. and Michael Habash.

AFFIRMED IN PART; REVERSED IN PART.

      Garcia testified that "three or four" men came from Florida to select/buy/transport the livestock. Habash testified that he was unaware of anyone, other than his nephew and a driver he had hired, traveling to Louisiana.

      According to the plaintiff's brief, a Florida court denied the defendants' petition to stay the sale of the property. Conversely, the defendants maintain that the stay was issued pending the instant proceedings. The proceedings in Florida are not a part of this record and will not be addressed in this appeal.

      Habash testified that Musa Simreen resides in New York, is a paraplegic, and has not traveled to Florida for several years.

      The trial court's ruling with regard to the sufficiency of service of process was not appealed. Therefore, that ruling is not before us and will not be addressed in this opinion.

      La. R.S. 13:3471(1) contains supplementary rules for service of process.


text:
    STATE of Louisiana, Appellee v. James WILLIAMS, Appellant
    No. 52,618-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    GARY V. EVANS, District Attorney, CLOYCE CLARK, III, KENNETH P. HAINES, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   WILLIAMS, C.J.

The defendant, James Williams, was charged by bill of information with two counts of distribution of a Schedule II controlled dangerous substance (cocaine), in violation of La. R.S. 40:967(A). Following a bench trial, the defendant was found guilty as charged. He was sentenced to 10 years at hard labor for each conviction, to be served concurrently. For the following reasons, we affirm the defendant's convictions and sentences. However, we remand this matter to the trial court with instructions to amend the court minutes to correctly reflect that, pursuant to La. R.S. 40:967(B)(4)(b), the first two years of the defendant's sentences are to be served without the benefit of parole, probation or suspension of sentence.

FACTS

On April 21, 2016, deputies from the DeSoto Parish Sheriff's Office met with a confidential informant ("CI") to conduct controlled buys of crack cocaine from the defendant, James Williams. The CI was wired with an audio/video recording device and was given money to purchase the drugs. On two occasions - April 21, 2016, and May 3, 2016 - the CI met with the defendant at arranged locations where the drug transactions were completed. The body camera worn by the CI recorded the transactions.

The defendant was arrested and charged by bill of information with two counts of distribution of a Schedule II controlled dangerous substance ("CDS") (cocaine), in violation of La. R.S. 40:967(A). Subsequently, the defendant waived his right to a jury trial.

A bench trial was conducted on March 20, 2018, during which Sergeant Chato Atkins and Sergeant Justin Taylor of the DeSoto Parish Sheriff's Office testified with regard to their investigation. According to the witnesses, the target of the operation was "Bo Hogan," who was later identified as the defendant.

The two law enforcement officers testified that on both April 21, 2016, and May 3, 2016, they met with a CI for controlled narcotics buys in Mansfield, Louisiana. The officers had determined that the CI was reliable because he had completed undercover drug buys for them in six to eight previous cases. On both dates, the CI made contact with the defendant by telephone, met the defendant at an arranged location, purchased drugs from the defendant, returned to the officers, and gave them the drugs purchased. Both transactions were recorded.

Sgt. Atkins testified that the CI was previously arrested after being found in possession of a crack pipe, but he was not prosecuted for that charge in exchange for his help with the controlled drug buys. Sgt. Atkins admitted that the CI was a drug user and a "criminal," and he could have been buying and using drugs while making the controlled buys for them.

Regarding the first transaction, on April 21, 2016, the video depicted the following: the CI was outfitted with the camera; the officer stated that the CI was given $ 70 and had been searched; the CI began walking and called the defendant to tell him that he was on his way to meet him; a vehicle stopped in the road, with the defendant in the passenger seat; after a brief conversation, the defendant handed the CI cocaine, and the CI handed the defendant $ 50; the CI asked for $ 20 more in cocaine; the defendant stated that he did not have more with him, but the CI could call him later; the vehicle in which the defendant was riding drove away; and the CI

walked back to the officers and gave them the cocaine he had purchased.

As to the second transaction, on May 3, 2016, the video depicted the following: the CI was outfitted with the camera; the police officer stated that the CI was given $ 100 and that he had been searched; the CI began walking and called the defendant to tell him that he was on his way to meet him; the CI walked up to a trailer; the defendant was standing outside with another man, near a vehicle; the CI talked to the defendant, who said he only had "$ 60 worth"; the CI handed the defendant $ 60; after some unintelligible conversation, the defendant appeared to point to the vehicle parked nearby; the CI walked to the car and picked up the cocaine; and the CI walked back to the officers and gave them the cocaine he had purchased.

Sgt. Taylor testified that on both dates, he searched the CI before he went to meet the defendant, and the CI did not have any contraband on his person. Sgt. Taylor identified the baggies of cocaine that the CI purchased from the defendant. Sgt. Taylor admitted that for both transactions, a third person was present with the defendant, and that the video that was recorded on May 3, 2016, did not actually show the cocaine being placed on the hood of the car. He stated that the CI told him that the defendant put the cocaine on the car as he (the CI) was walking up to the trailer.

Bruce Stentz, of the Northwest Louisiana Crime Lab, testified that he analyzed the substance and confirmed that it was cocaine.

The CI testified that he made a deal with the police officers to do undercover drug buys after he was arrested for being in possession of a crack pipe. He testified as to the circumstances of the transactions, and he identified the defendant as the person who sold him cocaine on April 21, 2016, and May 3, 2016. The CI testified that he wore a body camera, and the police officers gave him money to buy the drugs. He stated that he called the defendant to arrange the buys. As to the first transaction, the CI testified that as he was walking, the defendant arrived in a vehicle, and he purchased the drugs from the defendant. With regard to the second transaction, the CI testified that he walked to a house to meet the defendant, gave the defendant the money, and the defendant told him to pick up the drugs that had been placed on the car; he followed the defendant's instructions. The CI also stated that he never bought drugs from the man who was with the defendant. During his testimony, the CI was unable to recall the amount of cocaine he purchased from the defendant, but stated it was anywhere from $ 50 to $ 100. The CI also identified the baggies of cocaine he purchased from the defendant.

With regard to his criminal history, the CI admitted that he was currently incarcerated at Caddo Correctional Center, awaiting trial for illegal possession of stolen things and second degree murder. He also admitted that he had more than five prior simple burglary convictions, "theft arrests," "unauthorized use of a vehicle," and a "drug possession charge." The CI testified that although he had a history of cocaine use, he was not using drugs during the time he was working with the DeSoto Parish Sheriff's Office.

The trial court found the defendant guilty as charged. After denying the defendant's motion for a new trial, the trial court sentenced the defendant to serve 10 years in prison at hard labor for each conviction, to be served concurrently.

The defendant appeals.

DISCUSSION

The defendant contends the evidence was insufficient to support his convictions for distribution of a Schedule II CDS. He argues that the CI was the "only source of information" to prove the drugs the CI provided to the officers were sold by defendant. Further, the defendant asserts that the camera did not actually capture the transfer of drugs from him to the CI, and the CI could have hidden the cocaine on his person in order to make it appear that the drugs he provided to the officers were sold to him by the defendant.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the trier of fact's decision to accept or reject the testimony of a witness in whole or in part. State v. Casaday , 49,679 (La. App. 2 Cir. 2/27/15), 162 So.3d 578, writ denied , 2015-0607 (La. 2/5/16), 186 So.3d 1162.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Crossley , 48,149 (La. App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied , 2013-1798 (La. 2/14/14), 132 So.3d 410 ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 2009-0372 (La. 11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Johnson , 47,913 (La. App. 2 Cir. 4/10/13), 113 So.3d 1209.

At the time the instant offenses were committed, La. R.S 40:967(A) provided, in pertinent part:

[I]t shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.
***

Cocaine is classified as a Schedule II CDS. La. R.S. 40:964, Schedule II(A)(4).

To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175, writ not cons. , 2017-0895 (La. 9/6/17), 226 So.3d 428.

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

In the instant case, we have reviewed the record in its entirety. The CI testified that he purchased cocaine from the defendant on April 21, 2016, and May 3, 2016. The CI's testimony was corroborated by the testimony of the police officers and video recordings of the transactions. On both occasions, the CI contacted the defendant by phone, walked to the arranged location to meet the defendant, and gave the defendant money in exchange for cocaine. After the transactions, the CI immediately returned to the police officers and turned over the cocaine he had purchased from the defendant.

The video recordings do not clearly depict the defendant passing the cocaine to the CI. However, the defendant was seen and heard on the recordings, and the CI positively identified the defendant as the person who sold him the cocaine. See State v. Sullivan , supra ; State v. Washington , 46,913 (La. App. 2 Cir. 2/1/12), 86 So.3d 697, writ denied , 2012-1407 (La. 11/21/12), 102 So.3d 54 (finding that there was sufficient evidence of a transfer where the CI left his money on a shelf and picked up cocaine as instructed by the defendant); State v. Robinson , 44,676 (La. App. 2 Cir. 9/23/09), 22 So.3d 1064 (finding that there was sufficient evidence of a drug transaction, even if one could not actually see the defendant passing the drug to the CI on the video recording).

Further, with regard to the defendant's argument that the CI could have hidden the cocaine on his person to make it appear as if the defendant had sold him drugs, the police officers testified that the CI was searched prior to going to meet the defendant; the search of the CI's person did not reveal that he was in possession of drugs at that time. Additionally, the video recordings showed that the CI never deviated from his route, removed any article of clothing, or did any act to suggest that he obtained the cocaine from a source other than the defendant.

Furthermore, in finding the defendant guilty of both counts of distribution of cocaine, the trial court stated that it had reviewed the video recordings several times and that it found the CI's testimony to be compelling and truthful. The trial court's credibility determinations are entitled to great deference, and this Court will not reassess the credibility of the witnesses or reweigh the evidence.

Considering the evidence in a light most favorable to the prosecution, we find that the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that the defendant was guilty of both counts of distribution of cocaine. This assignment of error is without merit.

The defendant also contends the maximum sentences imposed in this case, 10 years at hard labor, even imposed concurrently, are harsh and constitutionally excessive. The defendant argues that maximum sentences are to be reserved for the worst offenses and the worst offenders, and asserts that he is far from the worst of offenders. According to the defendant, he has demonstrated his willingness and ability to change and rehabilitate himself, and his motion to reconsider sentence should have been granted.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 2016-0959 (La. 5/1/17), 219 So.3d 332.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. 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) ; State v. DeBerry , supra . The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. DeBerry , supra . There is no requirement that specific matters be given any particular weight at sentencing. State v. DeBerry , supra ; State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 2007-0144 (La. 9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , supra .

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 2015-0608 (La. 1/25/16), 184 So.3d 1289. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Allen , supra . On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 2007-2031 (La. 2/15/08), 974 So.2d 665 ; State v. Hogan , 47,993 (La. App. 2 Cir. 4/10/13), 113 So.3d 1195, writ denied , 13-0977 (La. 11/8/13), 125 So.3d 445.

In 2016, when the instant offenses were committed, La. R.S. 40:967(B)(4)(b) provided that a person convicted of distribution of cocaine shall be sentenced to not less than two, nor more than 30 years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. The statute further provided that the defendant may be ordered to pay a fine of not more than $ 50,000.

It is well settled that an offender's punishment is determined according to the law in effect at the time he committed the offense. State v. LeBlanc , 2014-0163 (La. 1/9/15), 156 So.3d 1168 ; State v. Parker , 2003-0924 (La. 4/14/04), 871 So.2d 317 ; State v. Nixon , 52,202 (La. App. 2 Cir. 8/15/18), 254 So.3d 1228. See also State v. Thompson , 50,392 (La. App. 2 Cir. 2/24/16), 189 So.3d 1139, writ denied , 2016-0535 (La. 3/31/17), 217 So.3d 358 (noting that an ameliorative change in the penalty provision of a statute which occurs after the commission of the offense is only a factor to be weighed by the trial judge in imposing sentence).

In the instant case, at the sentencing hearing, the trial court noted that it had considered all of the evidence presented at trial, the PSI report, and the sentencing factors set forth in La. C. Cr. P. art. 894.1. The court noted that the defendant was 33 years old at the time of the offense, is not married, and has no children. The record also reveals that the defendant was raised by his grandmother, dropped out of high school in the ninth grade, has no vocational skills, and denied a history of substance abuse. Defense counsel informed the trial court that the defendant had become a trustee at the jail and was working every day. He argued that this fact demonstrated the defendant's potential for rehabilitation.

The trial court also reviewed the defendant's criminal history, noting that he has two prior felony convictions. In 2003, the defendant pled guilty to attempted manslaughter (reduced from attempted first degree murder) and was sentenced to 10 years at hard labor. In 2014, the defendant pled guilty to possession with intent to distribute cocaine, and was sentenced to 10 years at hard labor, 8 suspended, with 4 years of probation. The trial court noted that the instant offense occurred while the defendant was on probation for that offense.

At the hearing on the motion to reconsider sentence, the defendant stated that he had "learned his lesson" and that he realized that he needed to make changes in his life and "do better for himself." He also stated that since his arrest, he had been working every day, doing mechanic work and washing cars, and that he "loved the feeling" of going to work every morning. Additionally, Donna Richardson, the defendant's probation officer, stated that she had been supervising the defendant on probation since 2013. According to Richardson, the defendant "did well" on probation, considering his behavior, and she believed he had the ability to be rehabilitated.

The trial court did not specifically articulate which factors under La. C. Cr. P. art. 894.1, it considered in imposing the defendant's sentences. However, the entire record, including the reasons stated by the trial court, and the PSI report, provide an adequate factual basis for the sentences imposed. The record shows that the trial court adequately considered the facts of this case, including the amount of cocaine the defendant sold to the CI, the defendant's personal and criminal history, and the defendant's efforts at rehabilitation. The record reveals that the defendant has been consistently involved in criminal activity since 2003, including prior drug offenses and a crime of violence, and that he has not benefited from prior probationary treatment.

Further, at the sentencing hearing, the trial court incorrectly stated that the sentencing range for distribution of cocaine was one to 10 years, with or without hard labor. Because the instant offenses were committed in 2016, the applicable sentencing range for the defendant is two to 30 years at hard labor. Consequently, contrary to his argument on appeal, the defendant did not receive the maximum sentences for his crimes of conviction.

Accordingly, we find that the trial court did not abuse its discretion and the sentences imposed do not shock the sense of justice. The sentences are not constitutionally excessive. This assignment of error is without merit.

ERROR PATENT

In accordance with La. C. Cr. P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of this record has revealed one error: the trial court imposed an illegally lenient sentence by failing to specify that the first two years of the defendant's sentences are to be served without the benefit of parole, probation, or suspension of sentence, as required by La. R.S. 40:967(B)(4)(b).

When the trial court fails to order that a portion of a sentence be served without benefits as statutorily mandated, the sentence will be automatically served without benefits for the requisite time period. State v. Nixon , supra ; State v. Jones , 48,505 (La. App. 2 Cir. 11/20/13), 128 So.3d 622 ; La. R.S. 15:301.1(A). Accordingly, there is no need to remand this matter for resentencing. However, we hereby remand this matter to the trial court with instructions to amend the minutes and the uniform commitment order to reflect that the first two years of the defendant's sentences are to be served without the benefit of parole, probation, or suspension of sentence, as required by La. R.S. 40:967(B)(4)(b).

CONCLUSION

The defendant's convictions and sentences are affirmed. The trial court is hereby instructed to amend the court minutes to correctly reflect that the first two years of the defendant's sentences are imposed without the benefit of parole, probation or suspension of sentence.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      The baggies containing the substances the CI purchased from the defendant were sent to the Northwest Louisiana Crime Lab for analysis. It was later determined that the substances contained cocaine.

      Sgt. Atkins testified that he was only present for the drug buy that took place on April 21, 2016.

      The video recordings were admitted into evidence and were played during the defendant's trial.

      At trial, there was no testimony as to the weight of the cocaine that the defendant sold to the CI. However, the evidence transfer sheet shows that the CI had purchased "one baggy containing six grams of suspected crack cocaine" and "one baggy containing several bags of suspected crack cocaine."

      In 2017, the legislature amended La. R.S. 40:967, to reduce and tailor sentences according to the weight of the CDS involved. See Acts 2017, No. 281. La. R.S. 40:967(B)(1)(a) now provides that for an aggregate weight of less than 28 grams, the offender shall be imprisoned for one to 10 years, with or without hard labor.
      The 2017 amendments to La. R.S. 40:967 became effective August 1, 2017, and do not apply retroactively. State v. Ferguson , 2018-0679 (La. App. 1 Cir. 8/20/18), 2018 WL 3993872. See also State v. Nixon , supra (finding that the 2017 amendments to La. R.S. 40:966 and 40:967 did not apply to offenses committed in 2012); State v. Casaday , 51,947 (La. App. 2 Cir. 4/11/18), 247 So.3d 1057, writ denied , 2018-0700 (La. 11/5/18), 255 So.3d 1047.

      That sentencing range is provided for in the 2017 amendments to La. R.S. 40:967.

      Under the 2017 amendments, which are not applicable as discussed above, there is no restriction of benefits.