author: JOHNSON, J.

text:
    STATE of Louisiana v. Julius HANKTON
    NO. 17-KA-628
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Andrew Decoste, Douglas E. Rushton
    COUNSEL FOR DEFENDANT/APPELLANT, JULIUS HANKTON, Bruce G. Whittaker
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   JOHNSON, J.

Defendant/Appellant, Julius Hankton, appeals his convictions and sentences from the 24th Judicial District Court, Division "L". For the following reasons, we affirm Defendant's convictions. As to the sentences ordered on each of the six counts, we affirm the term of the sentences imposed, vacate the requirement that each sentence is to be served consecutively, amend the sentences to order that all sentences are to be served concurrently, amend the sentence on count one to delete the parole restriction; and, as amended, we affirm the sentences on each count. Additionally, we remand the matter with instructions.

FACTS AND PROCEDURAL HISTORY

On May 1, 2015, the Jefferson Parish District Attorney filed a bill of information charging Defendant with one count of possession with intent to distribute heroin, in violation of La. R.S. 40:966(A) (count one), four counts of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (counts two, three, five, and six), and one count of possession of oxycodone, in violation of La. R.S. 40:967(C) (count four). The six separate counts for which Defendant was charged all arose out of a single search warrant executed on March 19, 2015 at defendant's residence located at 1602 Clearview Parkway, Apartment A, in Metairie, Louisiana during which law enforcement seized a significant amount of heroin packaged for sale, drug paraphernalia, multiple cell phones, a large amount of cash, and four guns. Defendant pleaded not guilty to the counts at his arraignment on May 19, 2015.

On October 15, 2015, Defendant's motions to suppress statement and evidence were denied by the trial court. Trial commenced before a twelve-person jury on January 18, 2017.

At trial, Gregory Morrow, a recovering heroin addict, testified that in 2014 he was working with the Federal Bureau of Investigations (FBI) as a confidential informant. While working with the FBI, Morrow purchased heroin from Julius Hankton-Defendant-known to him as "Ju," on November 7, 19, and December 5, 2014, in quantities of one-half to one gram for which he would pay approximately $50 to $100. Morrow testified that he would call Defendant to set up the drug transaction and that his phone conversations were recorded by the FBI. He explained that prior to meeting Defendant, he would be searched to verify that he did not have any drugs in his possession before receiving the money from law enforcement to purchase the drugs and would then engage in the hand-to-hand drug transaction with Defendant while under surveillance of law enforcement.

A video of the November 7, 2014 drug transaction between Defendant and Morrow was played for the jury. On the video, a vehicle driven by Defendant is shown pulling up to Morrow's vehicle where the passenger of Defendant's vehicle then hands Morrow a gram of heroin in exchange for $100. A second purchase made by Morrow on November 19, 2014, from Defendant was for half a gram of heroin and was also recorded on video; however, Morrow testified that the video did not capture Defendant, who had given him the heroin and was out of sight of the surveillance camera. Also, on December 5, 2014, Morrow made a third purchase of heroin from Defendant near the Brother Martin football field, which was not captured on video because he was instructed by Defendant to exit his vehicle and enter Defendant's vehicle where Defendant sold him the heroin out of sight from the surveillance camera positioned in Morrow's vehicle.

Stacey Taranto of the Jefferson Parish Sheriff's Office testified that in 2014 and 2015 she was a member of the narcotics unit working as a Task Force Officer with the FBI. Officer Taranto testified that the task force she participated in was a multi-jurisdictional unit comprised of members of local law enforcement and FBI agents in the greater New Orleans area who conducted narcotics investigations. She further explained that she conducted surveillance of the controlled buys testified to by Morrow and that, in March of 2015, she participated in the execution of a search warrant at Defendant's residence: 1602 Clearview Parkway, Apartment A, in Metairie, Louisiana.

Officer Taranto testified that during the November 19, 2014 controlled buy, she observed a silver BMW pull into the meeting location set up between Defendant and Morrow, where she observed a black male wearing a black sweatshirt with the letters "O-B-E-Y" written on it, exit the vehicle he was driving and conduct a hand-to-hand drug transaction with Morrow. She further explained that during her surveillance of the drug transactions conducted on November 19, 2014 and December 5, 2014, she was able to obtain the license plate numbers from the vehicles driven by Defendant and discovered that the vehicle used in November was registered to a female by the name of Jasmine Chaney-Defendant's girlfriend-who resided at 1602 Clearview Parkway, Apartment A, in Metairie, Louisiana, and the vehicle used in December 2014 was a rental car which had been rented under the name Jasmine Chaney. Officer Taranto testified that she performed a traffic stop of the vehicle following the December 5, 2014 drug transaction and confirmed Defendant as the driver of the vehicle. A search of the vehicle driven by Defendant revealed a black sweatshirt with the letters "O-B-E-Y" written on the front, a cell phone, and two small bags of heroin.

Special Agent Christopher Bauer of the New Orleans Division of the FBI and member of the Violent Crimes Task Force participated in the controlled buy on November 19, 2014, during which he observed a silver BMW pull into the parking lot at the meeting location alongside Morrow's vehicle. He then observed a black male wearing a sweatshirt with the letters "O-B-E-Y" written across the front exit the BMW and interact with Morrow. Special Agent Bauer also confirmed his participation in the stop of the vehicle Defendant was driving after the December 2014 controlled buy. Special Agent Bauer indicated that Defendant was arrested at the time of the stop but was subsequently released.

Special Agent Bauer testified that subsequent to Defendant's release, a warrant was obtained for the search of Defendant's apartment. During the execution of the search warrant, Defendant was detained, and a search of his pants revealed 26 small plastic baggies containing heroin and eight pills that tested positive for oxycodone. Additionally, a Glock 17 pistol, Glock 29, Glock 21, an AK-47 rifle, ammunition, multiple cell phones, a scale, and over $20,000 in cash were seized during the search of the master bedroom in which Defendant's pants were located. Upon discovery of the evidence, Defendant admitted his ownership of "all the stuff in the house."

FBI Special Agent Crystal Bender, also of the New Orleans Violent Crimes Task Force, likewise testified regarding the various monitored phone conversations between Morrow and Defendant during which the narcotics transactions were arranged, as well as the monitored video recordings of the controlled buys that took place. Agent Bender explained that surveillance of the Clearview apartment was also conducted during which Defendant was seen entering and exiting the residence. At one time, Defendant was seen exiting the apartment, approaching the driver of a white sedan, leaning inside the vehicle, and retreating back into the apartment after a couple of seconds.

Agent Bender further testified regarding a controlled buy between Defendant and an unnamed confidential informant on May 8, 2014, which was recorded on video surveillance and played for the jury. Agent Bender identified Defendant from the video and confirmed that in exchange for $100, the confidential informant received .31 grams of heroin. She explained that the quantity received was less than the amount paid. A recorded phone conversation between Defendant and the confidential informant was played during which Defendant explained that the reason it was "short" was because it was "bricked up," meaning it had been cut off of a "solid piece."

Sergeant Joshua Collins, an expert in the field of quantity, packaging, pricing, and distribution of narcotics, testified that the 26 bags of heroin individually packaged within a larger plastic bag weighing approximately 21 grams, the $20,000, and the scale all found in Defendant's apartment are indicative of street-level distribution.

David Cox, an expert in forensic analysis and identification of DNA, testified that a DNA sample was obtained from one of the firearms-the AK-47 rifle-found in Defendant's apartment which was consistent with being a mixture of DNA from two individuals, for which Defendant was excluded as a contributor. However, Mr. Cox testified that the findings of the testing did not necessarily indicate Defendant had never handled the AK-47, just that his DNA was not contained on the swab collected from the gun.

A stipulation was accepted by the parties that Sergeant Joel O'Lear, an expert in fingerprint examination and comparison, if called, would testify that he compared State's Exhibit 1-the latent fingerprint card of Defendant-to State's Exhibits 2 and 3-certified conviction packets for Defendant-and concluded that Defendant's fingerprints matched those contained on the certified conviction packets, establishing the prior felonies as alleged in counts two, three, five, and six.

At the conclusion of the trial, the following day, the jury found Defendant guilty as charged. Prior to sentencing Defendant on March 13, 2017, the trial court denied Defendant's oral motion for new trial. After a waiver of delays, the trial court sentenced Defendant on count one, to 50 years imprisonment at hard labor, with the first ten years to be served without benefit of probation, parole, or suspension of sentence; on each of counts two, three, five, and six, to 20 years imprisonment at hard labor to be served without benefit of probation, parole, or suspension of sentence; and on count four, to two years imprisonment at hard labor. The trial court further ordered Defendant's sentences on all counts to be served consecutively to each other.

On July 19, 2017, Defendant filed a motion for out-of-time appeal, which was granted by the trial court on July 24, 2017. The instant appeal follows.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges 1) the trial court improperly impinged upon his right of confrontation, and 2) the trial court imposed an unconstitutionally excessive sentence.

LAW AND ANALYSIS

Right of confrontation

In his first assignment of error, Defendant argues that because his primary accuser was a named cooperating informant, the trial court committed reversible error when it prohibited him from directly confronting and cross-examining Morrow-the informant-regarding the full scope of bias and inducement under which his testimony was offered to the jury. Thus, given the importance of the informant's testimony, Defendant maintains that the error was not harmless.

The State asserts that Defendant has failed to preserve this issue for appeal. Nevertheless, the State maintains Defendant was fully able to cross-examine Morrow on issues related to his credibility absent a few questions to which objections were properly sustained. Regardless, the State contends any alleged error claimed by Defendant would be harmless in this case.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to confront the witnesses against him. The Confrontation Clause of the Louisiana Constitution specifically and expressly guarantees the accused the right "to confront and cross-examine the witnesses against him." La. Const. Art. I, § 16 ; State v. Robinson , 01-273 (La. 5/17/02), 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Robinson , supra. Cross-examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. Id. ; State v. Williams , 04-608 (La. App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied , 05-0081 (La. 4/22/05), 899 So.2d 559.

Here, Defendant maintains that, although Morrow testified regarding three separate instances where Defendant sold him heroin, not all of the transactions were captured on video surveillance or by the surveilling officers themselves, and therefore, the jury was required to rely on Morrow's uncorroborated testimony. Thus, given the importance of Morrow to the State's case, Defendant asserts the trial court erred in precluding him from cross-examining Morrow regarding the payments he received from law enforcement for his participation as an informant and the extent of the uncharged criminal wrongdoing offered to him in exchange for his cooperation.

Specifically, Defendant sets forth two instances during his cross-examination of Morrow where the trial court allegedly impinged on his Sixth Amendment right. The first is the following exchange during which he was allegedly precluded from questioning Morrow regarding other narcotics transactions he had previously engaged in-other than those in this case-and which law enforcement elected to "look the other way[:]"

DEFENSE: So - and by the way, not only were you not arrested for selling heroin, but you were paid money; right?
MORROW: Yes.
DEFENSE: So the Government pays you - how much money did they pay you?
MORROW: Um, two or three hundred dollars a time; something like that.
DEFENSE: I'm in the wrong business. So every time you go and do something for them, you get paid two hundred dollars; and you can buy and use heroin, and sell heroin, and never worry about being arrested by them; right? Have you been arrested by them for any of your drug selling or using since this all began?
MORROW: No, because nothing was around them?
DEFENSE: What do you mean "nothing was around them"?
MORROW: I said nothing I did was around them, so they didn't have any direct knowledge or any direct link to me using. They knew that -they figured that it was using -
DEFENSE: They figured you were using, but no one ever saw like -what about the other buyers that you bought from, did you give them their names, and make other buys?
STATE: I'm going to object to anything beyond the scope of -of this trial.
DEFENSE: Judge, they decided to put this man on the stand.
COURT: I know, but we're only concerned about this case; so I'll sustain it as to that -
DEFENSE: But this case isn't even about this man. And that's the -
COURT: Mr. Smith, --
DEFENSE: Okay, I'm sorry, Judge.
COURT: I make a-
DEFENSE: I'm sorry.
COURT: --I make a ruling, we don't argue. Okay?
DEFENSE: Okay, you're right.
COURT: So let's move on.
DEFENSE: I apologize.

The second alleged cross-examination restriction Defendant alleges is the trial court's prohibition on his inquiries to Morrow concerning the total amount of money he received from law enforcement for his cooperation in other uncharged narcotics trafficking engaged in by Morrow that did not involve the instant case:

DEFENSE: So just -how much money did you make in 2014, in income, from the Government paying you?
MORROW: If I said it -STATE: I'm going to object. As it related to his case? I think that may be relevant, but -
DEFENSE: Okay, as it-okay as it relates to this case?
COURT: As it relates to this case -it's a legal (inaudible words).
MORROW: If I had to say a number, I'd be lying. I'm not sure of the exact number, the F.B.I. knows that, it's written down somewhere.
DEFENSE: But wait a second, you only testified that this happened November -the only time -every time you did something with Ju [defendant], it was recorded; right?
MORROW: Yes.
DEFENSE: So, we've only heard about 7-November 7, November 19th, December 5th; that would only be six hundred dollars; two hundred times three. Where is the other money coming from?
MORROW: What other money?
DEFENSE: Well you couldn't even tell me how much money you made. It seems clear if you get two hundred dollars every time you did it, and you only testified about three times.
MORROW: I'm not sure of the exact number of how many buys that were done.
DEFENSE: So are you telling us now that you've bought more from Ju [defendant] now?
MORROW: No.
DEFENSE: But what other buys are you talking about then, from other people?
STATE: Objection, Judge, it -
DEFENSE: Okay, I'll -
COURT: Sustained.

Defendant claims the aforementioned exchanges illustrate an egregious denial of his fundamental right to confrontation. He maintains that Morrow was a critical witness against him; and without Morrow, there would have been "a much less compelling case of guilt." Defendant comes to the conclusion that the trial court's restrictive rulings concerning additional unrelated narcotics transactions with individuals other than Defendant and the money received for those dealings were not harmless beyond a reasonable doubt.

In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C.Cr.P. art. 841. It is well-established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Cooks , 97-0999 (La. 9/9/98), 720 So.2d 637, 644, cert. denied , 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999) ; State v. Johnson , 03-620 (La. App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied , 03-3171 (La. 3/19/04), 869 So.2d 849. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling on a favorable verdict then resorting to appeal on errors that might easily have been corrected by an objection. State v. Johnson , supra. Since Defendant did not object to the aforementioned alleged restrictions on his cross-examination of Morrow or to any testimony on the ground that it violated the confrontation clause of the United States or Louisiana Constitutions, we find he is precluded from raising the issue on appeal. See State v. Taylor , 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 594-95.

Excessive Sentence

In his second assignment of error, Defendant maintains that his sentence of 132 years imprisonment is unconstitutionally excessive. He argues that with the exception of his two-year sentence imposed on count four (possession of oxycodone), he received the maximum available sentences on all other counts, which were then ordered by the trial court to be served consecutively for a total of 132 years-a virtual life sentence-constituting a needless and purposeless infliction of pain and suffering. Defendant avers that his consecutive sentences result in a plainly unconstitutionally excessive sentence. He notes that he was 25 years old at the time he committed the instant crimes, is a father of a young child, and his crimes of conviction are non-violent possession offenses warranting remand of this matter for resentencing.

The State asserts that even if this Court were to extend an excessiveness review to the issue of the sentences imposed on each individual count, no relief would be warranted because the trial court did not abuse his broad sentencing discretion.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v.Nguyen , 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied , 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Id.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Nguyen , 958 So.2d at 64 ; State v. Taylor , 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied , 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato , 603 So.2d 739, 751 (La. 1992) ; State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56 ).

In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen , 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy , 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied , 02-2900 (La. 4/4/03), 840 So.2d 1213.

At the time of the charged offenses, the penalty for possession with intent to distribute heroin, a violation of La. R.S. 40:966(A), carried a term of imprisonment at hard labor for "not less than ten nor more than fifty years, at least ten of which shall be served without benefit of probation or suspension of sentence," and the penalty for possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, carried a term of imprisonment at hard labor for "not less than ten nor more than twenty years without benefit of probation, parole, or suspension of sentence."

The trial court sentenced Defendant to the maximum allowable sentences on count one (possession with intent to distribute heroin) and on each of counts two, three, five, and six (possession of a firearm by a convicted felon). Specifically, Defendant received a 50-year sentence, with ten years to be served without benefit of probation, parole, or suspension of sentence on count one and 20-year sentences without benefit of probation, parole, or suspension of sentence on each of counts two, three, five, and six. The trial judge gave the following reasons for the sentences imposed:

All right. Mr. Hankton, I'm familiar with this particular case. I was the sitting judge. I have reviewed the Code of Criminal Procedure Article 891 of the sentencing guidelines, and find under A1 that if there's an undue risk, that during the period of suspended sentence or probation the defendant would commit another crime. And that two, the defendant is in need of a correctional treatment of custodial environment that can be provided most effectively by his commitment to an institution and that any lesser sentence would deprecate the seriousness of this offense. Based on the evidence that I saw of the multiple dealings, in what was uncovered at your house, along with the guns and the heroin, the Court --
All right, on count one, based on the evidence that I saw and what I know and what I've seen in this particular case, the Court is going to sentence you [....]

When an appellate court is reviewing a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker , 00-3200 (La. 10/12/01), 799 So.2d 461, 462 (per curiam ).

As will be further explained, we find the trial court did not abuse its discretion in imposing the maximum sentences on each of counts one, two, three, five, and six when considering the nature of the crime, as well as the nature and background of Defendant.

First, Defendant stipulated to his prior 2012 convictions for aggravated battery and possession of cocaine. Past records of drug offenses weigh heavily in the decision to uphold the imposition of maximum sentences. State v. Jones , 33,111 (La. App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied , 00-1467 (La. 2/2/01), 783 So.2d 385. Second, Defendant had eight oxycodone pills, 26 baggies of heroin, a scale, four firearms, and over $20,000 in cash in his apartment in which his girlfriend and their four-year-old child were present. Thus, we find Defendant illustrated a disregard for the welfare of others by keeping dangerous narcotics and loaded weapons in a house with children. See State v. Payne , 10-47 (La. App. 5 Cir. 1/25/11), 59 So.3d 1287, writ denied , 11-0387 (La. 9/16/11), 69 So.3d 1141.

Additionally, when considering the seriousness of the offense of La. R.S. 14:95.1, we note that it was committed while Defendant was simultaneously in possession of a quantity of drugs. The Louisiana Supreme Court has found generally in considering laws that make it illegal to possess a firearm while also possessing a controlled dangerous substance, "there is a rational relationship between the statute's scope, i.e., making it a felony for a person to possess a firearm in connection with a drug offense, even a misdemeanor drug offense, and its legitimate state purpose of preventing drug-related violence." State v. Blanchard , 99-3439 (La. 1/18/01), 776 So.2d 1165. This Court has drawn a similar conclusion with respect to drug violations that involve guns in State v. Williams , 98-1006 (La. App. 5 Cir. 3/30/99), 735 So.2d 62, writ denied , 99-1077 (La. 9/24/99), 747 So.2d 1118 by stating,

The aim of the legislature in enacting the present statute was to criminalize possession and/or use of a dangerous weapon, including a firearm, in order to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the trade. This statute was enacted not solely for the protection of police officers, as Defendant contends, but also for the protection of the general public.

Further, the evidence at trial established that Defendant had an ongoing drug distribution business involving the sale of heroin for a profit, in quantities inconsistent with personal use. In State v. Williams , 16-600 (La. App. 5 Cir. 6/29/17), 224 So.3d 1194, 1198, this Court upheld the defendant's maximum enhanced sentence of 20 years imprisonment for the defendant's conviction of simple possession of heroin, with a predicate conviction for possession of heroin. This Court found that the nature of the defendant's crime warranted the sentence of 20 years, noting that although the defendant was convicted of simple possession, the facts of the case and the defendant's history suggested his involvement in heroin distribution.

Also, Defendant's possession of four loaded guns while in possession of a significant quantity of heroin could have conceivably led to a violent outcome or injury to members of the public; thereby, rendering the nature of the single offense of La. R.S. 40:966(A) not inconsequential for sentencing purposes.

Accordingly, the record amply justifies the sentences imposed by the trial court and the individual sentences are not grossly disproportionate to the offenses or impose needless and purposeless pain and suffering. Considering that Defendant's conduct constituted a threat to public safety, his prior criminal record for drug-related activity and violence, and the fact that the trial court was of the opinion that there was an undue risk that Defendant would commit another crime and is in need of correctional treatment, we find the individual sentences imposed do not shock this Court's sense of justice and the trial court did not abuse its discretion in imposing a 50-year sentence on count one and 20-year sentences on each of counts two, three, five, and six. However, we note there is an issue with the consecutive nature imposed on Defendant's sentences. Therefore, we will review the consecutive nature of Defendant's sentences as part of his claim that the sentences imposed are unconstitutionally excessive.

In determining whether sentences are excessive, this Court should consider, among other things, whether the convictions arise out of a single course of criminal conduct. State v. Ortego , 382 So.2d 921 (La. 1980), cert. denied , 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all shall be served consecutively. La. C.Cr.P. art. 883. In other words, if the trial court elects to impose consecutive sentences for crimes arising out of the single course of conduct, it must articulate the reasons it feels consecutive sentences are necessary. Cornejo-Garcia , 90 So.3d at 465 ; State v. Blanchard , 03-612 (La. App. 5 Cir. 11/12/03), 861 So.2d 657, 664, writ denied , 03-3389 (La. 10/15/04), 883 So.2d 1045. According to the record in this case, since Defendant's convictions arose from a single event-the search warrant executed on his Metairie residence on March 19, 2015-under La. C.Cr.P. art. 883, there was a presumption in favor of concurrent sentences. The trial judge, however, did not articulate any particular reasons or identify any specific factors particular to Defendant for requiring that his sentences be served consecutively.

Considering sentences imposed for similar crimes in this and other courts, the following jurisprudence indicates to us that the consecutive nature of the sentences imposed upon Defendant herein-resulting in a total period of incarceration of 132 years, which is greater than a life sentence reserved for the most violent of crimes-is unconstitutionally excessive and shocks our sense of justice. Specifically, the following jurisprudence shows a range of sentences for a total period of incarceration imposed for similar offenses for which Defendant was convicted.

In State v. Evans , 09-477 (La. App. 5 Cir. 12/29/09), 30 So.3d 958, writ denied , 10-363 (La. 3/5/11), 61 So.3d 653, this Court upheld a 45-year habitual offender sentence where the defendant was convicted of possession of cocaine with intent to distribute. In State v. Collins , 09-283 (La. App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied , 10-34 (La. 9/3/10), 44 So.3d 696, this Court considered the defendant's four prior felony convictions and upheld a 35-year sentence for possession of heroin with the intent to distribute from a hotel room. In State v. Calway , 98-2061 (La. App. 4 Cir. 11/17/99), 748 So.2d 1205, writs denied , 00-3396 (La. 8/24/01), 795 So.2d 342 and 04-1260 (La. 3/18/05), 896 So.2d 998, the Fourth Circuit upheld a 60-year sentence for possession of cocaine with the intent to distribute, finding that the defendant's prior convictions for theft, burglary, possession of narcotics paraphernalia, possession of cocaine, and possession of marijuana justified the imposition of the maximum sentence. In State v. Cann , 471 So.2d 701 (La. 1985), the trial court sentenced the defendant to five years on a marijuana distribution count and to one 30-year and two 15-year sentences on cocaine distribution counts. The defendant had several arrests and convictions as an adult for drug-related offenses and sold drugs on three occasions to an undercover officer within a five-week period. Although the supreme court found that none of the sentences were individually excessive, under the circumstances of that case, it found the sentences to be excessive in that they were ordered to be served consecutively and ordered the sentences to be served concurrently.

While the trial court may certainly consider the full context of the current charges, as well as many other factors in sentencing a defendant, it nevertheless is important to focus upon the facts of that particular record in first rendering the sentence and then upon review for constitutional excessiveness. In light of the record before us and the jurisprudence outlined above, we find the consecutive nature of Defendant's sentence, essentially exposing him to a total of 132 years of incarceration, shocks our sense of justice and is grossly disproportionate to the severity of the crime. Moreover, it imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe Defendant for potentially the rest of his natural life. As this 25-year-old man ages, these costs will only increase due to the need for geriatric health treatments. See State v. Bruce , 11-991 (La. App. 5 Cir. 10/30/12), 102 So.3d 1029, writ denied , 12-2568 (La. 4/16/13), 112 So.3d 839. The crimes with which Defendant was charged carry mandatory minimum sentences, indicating that the Legislature is deeply concerned with both heroin trafficking and guns in the hands of convicted felons. Furthermore, the amount of heroin seized, during execution of the search warrant, as well as the nature of its packaging, the accouterments of trafficking, and the four weapons seized, all indicate that Defendant was a serious drug dealer. The ongoing nature of Defendant's activities is further evidenced by the four separate predicating buys surveilled by law enforcement. A lengthy period of incarceration is justified and well within the trial court's broad sentencing discretion. Separation of Defendant from society for a significant period of time assures the community of safety from both his trafficking of a deadly drug and from his use of the four firearms found in his possession.

With these factors in mind, while sentencing Defendant to the maximum term for five of the six charged offenses does not constitute cruel and unusual punishment, ordering that the sentences be served consecutively for a full 132-year term does. The record contains scant evidence to support a finding that this case involved the most serious violation of the offenses and the worst type of offender. Maintaining each sentence rendered on the six counts for which Defendant was convicted, while vacating the consecutive nature of the six terms and ordering the six sentences to be served concurrently, does not shock our sense of justice nor do we find it unconstitutionally excessive. By removing the consecutive nature of the terms, we find the sentences imposed are supported by the jurisprudence, meet all of the societal goals of incarceration for Defendant without imposing an undue financial burden on the state, are more proportionate to the crimes committed in the instant case, and will eliminate the "purposeful imposition of pain and suffering" element that is prohibited by the federal and state constitutions.

Accordingly, we affirm Defendant's convictions on all six counts. Because the sentences imposed for Defendant's convictions all arose out of the same search warrant executed at the Defendant's Metairie residence, and were based on the same transaction or single course of conduct creating a presumption in favor of concurrent sentences under La. C.Cr.P. art. 883, we find that the aggregate of the sentences is unconstitutionally excessive and must be amended to provide that Defendant's sentences are to be served concurrently rather than consecutively. Therefore, we affirm in part, vacate in part, and amend in part the sentences imposed upon Defendant for the convictions on each of the six counts. Specifically, we affirm the term of the sentences imposed on each count, vacate the consecutive nature of the sentences, and amend the sentences to include an order that the sentences on each count are to be served concurrently.

Errors Patent Review

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

First, Defendant received an illegal sentence on count one. Defendant was convicted on count one of possession with intent to distribute heroin. La. R.S. 40:966(B)(4)(a) provides that the penalty for this offense is "imprisonment at hard labor for not less than ten years nor more than fifty years, at least ten of which shall be served without benefit of probation or suspension of sentence." In the present case, the trial court sentenced Defendant to 50 years imprisonment at hard labor with the first ten years to be served without benefit of probation, parole , or suspension of sentence. The statute does not provide for the prohibition of parole.

La. C.Cr.P. art. 882(A) provides this Court with the authority to amend Defendant's sentence by deleting the parole restriction to reflect that the first ten years of Defendant's 50-year sentence on count one only be served without benefit of probation or suspension of sentence. See State v. Dee , 09-712 (La. App. 5 Cir. 2/23/10), 34 So.3d 892, 903, writ denied , 10-0705 (La. 10/29/10), 48 So.3d 1097. Moreover, when a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the Courts of Appeal "should not rely on La. R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence 'at any time.' "

State v. Sanders , 04-0017 (La. 5/14/04), 876 So.2d 42 (per curiam ).

Accordingly, we delete the parole restriction imposed with regard to the sentence on count one, reflecting that the first ten years of the sentence is to be served only without the benefit of probation or suspension of sentence and affirm the sentence as amended. We also order the 24th Judicial District Court Clerk of Court to transmit notice of this amended sentence to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Richard , 12-310 (La. App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied , 13-1220 (La. 12/2/13), 126 So.3d 497.

It is further noted that in addition to this Court deleting the parole restriction on the commitment with respect to count one, we are remanding the matter for the trial court to note the proper restrictions and applicable years of those restrictions in conjunction with the concurrent sentences, as there was a parole restriction error in the commitment and the Louisiana Uniform Commitment Order (UCO) of the original sentence. This Court has previously remanded a case for correction of the commitment and the UCO in its error patent review. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ). Accordingly, we remand this case for correction of the commitment and UCO regarding the total number of years to be served without benefits in conjunction with this Court's amendment of Defendant's sentences. We further direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected commitment and UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See Long , supra (citing La. C.Cr.P. art. 892(B)(2) ).

DECREE

For the foregoing reasons, based upon our review of the record before us, Defendant's convictions are affirmed on all six counts. Further, as to the sentences imposed on each of the six counts for which Defendant was convicted, we affirm in part; vacate in part; amend in part; and, affirm as amended. Specifically, we affirm the term of the sentences imposed on each count; vacate the consecutive nature of the sentences; amend the sentences to include an order that the sentences on each count are to be served concurrently; and amend the sentence on count one to delete the parole restriction; and, as amended, we affirm the sentences. We also remand this matter with instructions for correction of the commitment and the UCO pursuant to the errors patent discussion above.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      Jasmine Chaney was also charged in the same bill of information with possession of tramadol without a prescription, in violation of La. R.S. 40:1238.1 (count seven).

      These phone conversations were introduced into evidence and played for the jury.

      Call logs and text messages recovered from the cell phone belonging to Defendant further confirmed the communications between Morrow and Defendant with respect to the controlled buys.

      Jasmine Chaney and a four-year-old child were also in the apartment at the time.

      At the time law enforcement officers entered the apartment, Defendant was naked and asked the officers to retrieve his pants from his upstairs bedroom.

      Michael Cole, forensic chemist for the Jefferson Parish Sheriff's Office Crime Lab, was qualified as an expert in the analysis and identification of controlled dangerous substances and testified that the 26 baggies tested positive for heroin with a gross weight of 21 grams. He further testified that the pills seized from the larger plastic bag taken from Defendant's pants pocket were found to contain oxycodone.

      Defendant is not challenging the excessiveness of his two-year sentence on count four, as he notes that count four-possession of oxycodone-is the only sentence for which he did not receive a maximum or near maximum sentence. Nonetheless, Defendant's sentence on count four is not unconstitutionally excessive as it is three years less than the maximum five-year sentence that could have been imposed pursuant to La. R.S. 40:967(C)(2). See also State v. Daniels , 15-148 (La. App. 3 Cir. 8/5/15), 215 So.3d 761, where, after considering several mitigating factors, such as the defendant's young age and tenth-grade education, the trial court sentenced the defendant to four years imprisonment at hard labor, a sentence which was not found to be excessive by the Third Circuit.

      See , State v. Hester , 99-426 (La. App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied , 99-3217 (La. 4/20/00), 760 So.2d 342, where this Court reviewed the constitutional excessiveness of a consecutive sentence.

      The Louisiana Supreme Court has recognized that although Louisiana law favors concurrent sentences for crimes committed as a part of a single transaction, a trial court retains discretion to impose consecutive penalties in cases where the offender's past criminal acts, violence in the charged crimes, or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Williams , 445 So.2d 1171, 1182 (La. 1984). See also State v. Harris , 11-626 (La. App. 5 Cir. 11/27/12), 105 So.3d 914, 935 ; State v. Williams , 08-556 (La. App. 5 Cir. 1/13/09), 8 So.3d 3, 9, writ denied , 09-330 (La. 11/6/09), 21 So.3d 298 ; State v. Cornejo-Garcia , 11-619 (La. App. 5 Cir. 1/24/12), 90 So.3d 458, 465.

      At the time defendant was charged with possession with intent to distribute heroin, La. R.S. 40:966(B)(4)(a) provided a mandatory minimum sentence of ten years to be served without benefit of probation or suspension of sentence (since the 2017 amendments, La. R.S. 40:966(B)(3) currently provides a mandatory minimum sentence of not less than five years); La. R.S. 14:95.1(B) provides a mandatory minimum sentence of five years at hard labor without benefit of probation, parole, suspension of sentence, and be fined not less than one thousand dollars for a violation of La. R.S. 14:95.1(A), illegal possession of a firearm by a convicted felon; and, La. R.S. 40:967(C), at the time defendant was charged with possession of oxycodone, provided for a mandatory minimum sentence of two years, with or without hard labor.

      As previously discussed, each of the six counts with which Defendant was charged in the instant bill of information arose out of a single event, i.e. , the execution of a single search warrant at his Metairie apartment on March 19, 2015. Defendant was not charged in the bill of information with either the underlying controlled buys upon which the search warrant application was based or with the heroin charge arising out of the traffic stop; at the time of trial, those charges were still pending in Orleans Parish. Thus, there was a presumption in favor of ordering Defendant's sentences to run concurrently under La. C.Cr.P. art. 883.

      At the time of the charged offenses, the maximum penalty allowed under La. R.S. 40:966(B)(4)(a) for possession with intent to distribute heroin was 50 years at hard labor, at least ten of which shall be served without benefit of probation or suspension of sentence, and the maximum penalty allowed for illegal possession of a firearm by a convicted felon under La. R.S. 14:95.1 was 20 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

      For example, the trial court sentenced Defendant to a total term of imprisonment of 132 years. Of the 132 years, the commitment and the UCO provide that "90 years" are to be served without benefit of parole, probation, or suspension of sentence. However, the total time Defendant would have served for his sentence without benefit of parole, probation, or suspension of sentence was incorrect due to the noted illegal parole restriction imposed on count one and would have needed to be corrected to accurately provide that only 80 years of Defendant's total sentence was to be served without benefit of parole, probation, or suspension of sentence.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Terrance C. WILLIAMS
    NO. 18-KA-71
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Gail D. Schlosser, Harahan, Lynn Schiffman, Rachel L. Africk
    COUNSEL FOR DEFENDANT/APPELLANT, TERRANCE C. WILLIAMS, Lieu T. Vo Clark
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   WICKER, J.

Defendant, Terence C. Williams, appeals the trial court's denial of his motion to withdraw his pleas of guilty to one count of armed robbery and one count of obscenity. Mr. Williams specifically contends that it was an abuse of the trial court's discretion to deny his request made prior to sentencing in light of his assertion that he did not fully understand the sentence that was agreed to as a part of the plea agreement. For the reasons that follow, finding no abuse of discretion, we affirm the trial court's ruling and, accordingly, affirm Mr. Williams' convictions and sentences.

FACTS AND PROCEDURAL HISTORY:

On June 25, 2015, the Jefferson Parish District Attorney filed a bill of information charging Mr. Williams with one count of armed robbery, a violation of La. R.S. 14:64 (count one), and one count of obscenity, a violation of La. R.S. 14:106 (count two). At his arraignment on July 6, 2015, Mr. Williams entered pleas of not guilty to both counts.

On December 11, 2015, defense counsel filed a motion for a competency examination on the ground that Mr. Williams had previously been diagnosed and treated for mental illness. Thereafter, Mr. Williams was examined by experts, Dr. Rafael Salcedo, a forensic psychologist, and Dr. Richard Richoux, a forensic psychiatrist, for purposes of determining whether Mr. Williams suffered from any mental disorder affecting his competency to proceed to trial and to assist counsel in the preparation of his defense. A competency hearing was held on March 9, 2016. According to the experts' report entered into evidence at the hearing, Drs. Salcedo and Richoux determined that their examination failed to reveal evidence that Mr. Williams was manifesting any signs or symptoms of a psychiatric disorder. Additionally, despite "significant substance abuse problems involving daily use of both marijuana and cocaine when ... not in institutional confinement," the experts opined that Mr. Williams fully understood the nature of the proceedings and the charges against him, and was capable of assisting his attorney in preparing his defense. Relying on the experts' findings outlined in their report, which included their assessment of Mr. Williams' "serious drug addiction," the trial court found Mr. Williams competent to proceed to trial.

Also on March 9, 2015, immediately following the competency hearing, defense counsel informed the court that she had shown to Mr. Williams all of the discovery, including various videos/audios, which the State intended to use against him at trial to support a conviction, and that Mr. Williams had been made "completely aware of all of the State's evidence against him." Defense counsel further advised that, based on his two prior felony convictions, Mr. Williams had been determined to be a multiple felony offender and that, as such, he had been advised that his status as a "triple bill" would dramatically increase in his sentencing range and exposure at trial (i.e. , 66 to 198 years) if convicted on the charge of armed robbery (or any felony). Additionally, defense counsel stated Mr. Williams had been informed of the State's plea offer-i.e. , 35 years' imprisonment, with no multiple bill -but that, despite her professional recommendation that accepting the plea was in his best interest and that the "35 years [was] a today offer," Mr. Williams had chosen to refuse the offer in favor of proceeding to trial.

Because of Mr. Williams' refusal to accept the plea offer in favor of trial, defense counsel requested that the trial court conduct a Frye hearing. During the Frye hearing, the trial judge explained to Mr. Williams that, if convicted of armed robbery, he would be a triple felony offender subject to a mandatory minimum sentence of 66 years up to 198 years at hard labor without benefit of probation, parole or suspension of sentence. The trial judge further explained to Mr. Williams-and Mr. Williams stated that he understood-that if he agreed to plead guilty, the State would agree not to file a multiple offender bill against him and that, "based upon [his] attorney's efforts on [his] behalf," the court would "reluctantly" agree to sentence him to only 35 years, which was a "today only option," but that if he refused to plead guilty, "all bets were off" in terms of what sentence the court might give, which the trial court "promise[d]" would not "be only 35 years after today." When asked by the court if he still wished to proceed to trial, Mr. Williams responded that he would "take 35."

Mr. Williams then withdrew his former pleas of not guilty and entered pleas of guilty as charged on both counts for an agreed upon sentence of 35 years imprisonment in the Department of Corrections without benefit of probation, parole or suspension of sentence as to count one, and three years' imprisonment in the Department of Corrections as to count two, with the sentences to run concurrently. Thereafter, the trial court conducted a lenghthy plea colloquy with Mr. Williams, wherein he of his Boykin rights, including his right to a jury trial or by judge alone, his right to the presumption of innocence, his right to confront his accusers and to call witnesses or present favorable evidence, his privilege against self-incrimination, and the right to appeal his conviction.

The trial court also reviewed with Mr. Williams the possible sentencing ranges for an armed robbery conviction and an obscenity conviction. The trial court further confirmed with Mr. Williams that he understood that if the court were to accept his guilty pleas, he would be sentenced to 35 years at hard labor in the Department of Corrections without benefits on the armed robbery charge, and to three years at hard labor on the obscenity charge, with the sentences ordered to be run concurrently, and with credit for time served on both charges.

During the plea colloquy, when the trial court specifically inquired as to whether Mr. Williams was suffering from any type of physical or mental impairment that would affect his ability to enter into the plea agreement, Mr. Williams responded in the negative. Mr. Williams confirmed that he could read, write and understand the English language. In response to further inquiry by the trial court, Mr. Williams indicated that he was satisfied with his counsel's legal representation and that he had not been forced, threatened, or coerced in any way to accept the plea deal. The trial court established that Mr. Williams understood the timeline for appealing his sentence and/or applying for post-conviction relief, and that he understood his guilty plea could be used to enhance the penalty for any future felony conviction. The trial court confirmed with Mr. Williams that his attorney had reviewed the "waiver of constitutional rights plea of guilty form" with him, that he had initialed each of the provisions on the form, and that it was his signature on the form acknowledging that his rights had been explained to him and that he wished to waive those rights.

Throughout the plea colloquy, Mr. Williams indicated that he understood his rights, that he wished to waive his rights, and that he understood the consequences of his guilty plea, including the sentences that would be imposed in accordance with the plea agreement. Following this detailed exchange with Mr. Williams in open court, the trial court accepted Mr. Williams' guilty pleas as having been knowingly, intelligently, freely and voluntarily made.

On April 14, 2016, Mr. Williams appeared for sentencing, at which time he made an oral motion to withdraw his guilty pleas on the grounds that he was under duress at the time he accepted the plea offer, and that he "did not truly comprehend and understand" the sentence that was agreed to as a part of the plea. When questioned by the trial court regarding what specific aspect of his plea was causing him confusion, Mr. Williams replied that he wanted to "take [his] plea back" because, "at the time [he] couldn't really read" the "paper that [he] was signing for [his] sentence," and "didn't really understand what [he] was signing." Asserting no specific basis for his inability to read or comprehend, and despite the affirmative answers he provided in response to the trial court's prior questioning during the Boykin colloquy, Mr. Williams stated that he did not understand any aspect of the plea agreement, in particular, the sentence that he would receive as a result of the plea.

The following discussion then took place between the trial judge and Mr. Williams:

THE COURT:
What is your understanding what will happen if the Court allows you to withdraw your guilty plea?
THE DEFENDANT:
By losing trial, I would get the max that I supposed to have, the sentence I supposed to have and you would take back what you offered me the first time.
THE COURT:
You know that you are a multiple offender, correct, you have felony convictions?
THE DEFENDANT:
Yes, sir.
THE COURT:
That if you are convicted at trial [it] would be held against you to enhance your sentence to [sic] essentially you would be looking at the rest of your life in prison.
THE DEFENDANT:
Yes, sir.
THE COURT:
And the sentence that I have indicated to you at the time of your plea that I would give to you was 35 years of hard labor with[out] benefit of probation, parole or suspension of sentence.
THE DEFENDANT:
How long would I have to do that before I would be eligible for parole?
THE COURT:
My job, as I told you, would be to sentence you to 35 years at hard labor without benefit of probation, parole or suspension of sentence and then any type of good time or any other calculation is not made by the Court. That is something that is up to the Department of Corrections.
MS. BOURG:
And Your Honor, just for the record, Mr. Williams asked me the same question. I told him that we do not make good time calculations, it is up to the Department of Corrections. I also told him it is my belief that I would tell him it is my understanding he will do 85 percent because it is a crime of violence. But I did explain we don't make good time calculations or guarantees. It is pleading to 35 and time less than that would be up to them.
THE COURT:
Mr. Williams, you were born what year?
THE DEFENDANT:
'88.
THE COURT:
You are 27 years old and again under the plea that you entered previous in this case back on March the 9th, this Court indicated to you that it would sentence you to 35 years and were this Court were [sic] to allow you to withdraw that plea, you would be looking at potentially life in prison.
THE DEFENDANT:
Yes, sir.

The trial court then denied Mr. Williams' request to withdraw his guilty pleas. In so ruling, the trial judge acknowledged that even though prior to taking the plea Mr. Williams had expressed some reservations, a full Boykin colloquy had taken place and, in his estimation, Mr. Williams understood the plea form, as well as the implications of his guilty plea. The trial judge further explained that if allowed to withdraw the pleas and proceed to trial and found guilty on the felony charge, Mr. Williams would be exposing himself to a virtual life sentence, but that under the plea agreement, he would be sentenced to 35 years imprisonment. Following its denial of Mr. Williams' request to withdraw his plea, the trial court sentenced him to 35 years in the Department of Corrections in accordance with the terms of the plea agreement,

Mr. Williams subsequently filed an application for post-conviction relief on November 20, 2017 seeking an out-of-time appeal. On November 29, 2017, the trial court granted Mr. William's request for an out-of-time appeal and dismissed his application for post-conviction relief, without prejudice. The instant appealed followed.

In his sole assignment of error, Mr. Williams contends that, based on his assertion that he did not fully understand the sentence that was agreed to as a part of the plea agreement, it was an abuse of the trial court's discretion to deny his motion to withdraw his guilty pleas. Mr. Williams'

competency to proceed to trial was placed at issue early on in these proceedings as evidenced by his prior motion for a competency examination, which he argues demonstrates his inability to understand the sentences or the consequences of his guilty pleas. For the following reasons, based upon our review of the record and the transcript of the hearings, finding no abuse of discretion, we find no error in the trial court's ruling.

LAW AND ANALYSIS

A defendant does not have an absolute right to withdraw a guilty plea. State v. Honeycutt , 41,601 (La. App. 2 Cir. 2/28/07), 953 So.2d 914, 918. Pursuant to La. C.Cr.P. art. 559(A), the trial court has the discretion to permit a defendant to withdraw his guilty plea at any time prior to sentencing. State v. Kron , 07-1024 (La. App. 5 Cir. 3/25/08), 983 So.2d 117, 119, writ denied , 08-0813 (La. 10/24/08), 992 So.2d 1039. However, this discretion cannot be exercised arbitrarily, and an abuse of discretion can be corrected on appeal. State v. Gonzales , 97-767 (La. App. 5 Cir. 1/14/98), 707 So.2d 82, 84. Once a defendant is sentenced, only those pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. Joseph , 14-762 (La. App. 5 Cir. 3/25/15), 169 So.3d 661, 664. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

As a general rule, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows that the defendant was informed of his rights and the consequences of his plea, and that the plea was entered voluntarily. State v. Kron , 983 So.2d at 120. Dissatisfaction with a sentence or a mere change of heart or mind by the defendant as to whether he made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. State v. Green , 03-410 (La. App. 5 Cir. 10/28/03), 860 So.2d 237, 242, writ denied , 03-3228 (La. 3/26/04), 871 So.2d 346. Moreover, where a defendant's misunderstanding of the plea bargain is not induced by or attributed to representations made by the district attorney or the trial court, there are no grounds for withdrawal of the plea. In the absence of fraud, intimidation, or incompetency of counsel, a guilty plea is not made less voluntary or informed by the considered advice of counsel. State v. Joseph , 169 So.3d at 664. A guilty plea also will not be set aside upon a defendant's unfulfilled expectation of gaining release as soon as possible. State v. Perrilloux , 99-1314 (La. App. 5 Cir. 5/17/00), 762 So.2d 198, 203.

Moreover, in Louisiana, a defendant's mental incapacity to proceed exists when, as a result of mental disease or defect, he presently lacks the capacity to understand the proceedings against him or to assist in his defense. La. C.Cr.P. art. 641. See also State v. Pollard , 12-346 (La. App. 5 Cir. 12/18/12), 106 So.3d 1194, 1199, writ denied , 13-0140 (La. 6/21/13), 118 So.3d 408. A defendant in a criminal case is presumed sane and responsible for his actions, and the defendant bears the burden of proving otherwise. State v. Tranchant , 10-459 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, 734, writ denied , 10-2821 (La. 4/29/11), 62 So.3d 108. The standard of proof is by a preponderance of the evidence, and the defendant must show that it was more probable than not that he lacked mental capacity to enter the guilty plea. Id.

Applying the foregoing legal precepts to the instant case, we find no error in the trial court's ruling denying Mr. Williams' request to withdraw his guilty plea. Specifically, we find that the record on appeal fully supports the trial court's factual determination that Mr. Williams voluntarily entered his guilty pleas with a full understanding of the consequences. Mr. Williams does not allege that the trial court failed to advise him of his constitutional rights, nor does he allege that he was coerced in any way to enter his plea. Rather, Mr. Williams alleges that based solely on his statements to the trial court that he did not understand the sentence or the implications of his guilty plea, which he contends was supported by the fact that he had previously filed a motion for a competency examination, the trial court should have allowed him to withdraw his guilty plea. We disagree.

The record shows that Mr. Williams' competency hearing-wherein he was found competent to proceed to trial-was held on the same day that the trial court, after having engaged in a lengthy plea colloquy with Mr. Williams advising him of his rights, his sentencing exposure, and after having been convinced that he fully understood the nature of the charges against him and the sentences to be imposed in accordance with the plea agreement, accepted Mr. Williams' guilty plea to the charged offenses as being freely and voluntarily made. We find no evidence in the record, other than his bald assertions to the contrary, that would lead us to conclude that Mr. Williams, who had been found competent to proceed to trial only moments before, did not maintain his competency at the time he entered his guilty pleas.

Our review of the jurisprudence further supports our conclusion. In State v. Tranchant , supra , the defendant challenged the validity of his guilty pleas to charges of aggravated rape and aggravated burglary. Id. , 54 So.3d at 732-733. Specifically, the defendant alleged that despite evidence of mental illness and mental retardation, the trial judge made no attempt to determine whether the defendant was able to understand the consequences of his guilty pleas or to inform him that he may have been waiving his plea of not guilty by reason of insanity. Id. at 734. Following a review of the record, this Court found no evidence indicating the defendant's guilty plea was in any way constitutionally infirm. Id. at 733. The record showed that during the plea colloquy, the trial judge advised the defendant of the nature of the charges to which he was pleading guilty, and further advised him of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. The defendant indicated that he understood these rights and that by pleading guilty, he was waiving those rights. Id. Finding no merit to the defendant's argument that his guilty pleas were invalid, this Court noted that at the time the defendant sought to withdraw his guilty pleas, he failed to provide any documentation to substantiate his contention that his mental disorders prevented him from entering a free and voluntary plea to the charged offenses. Id. at 734. Further, we noted that the defendant had the opportunity during the plea colloquy to inform the trial court that he did not understand the proceedings against him, but failed to do so, and neither the trial court nor counsel, who observed the defendant at the time of his guilty plea, found any reason to question his ability to follow the court proceedings. Lastly, we noted that the sanity commission had previously found defendant competent to proceed to trial. Accordingly, this Court affirmed his convictions and sentences. Id. at 734-735.

Similarly, in State v. Romious , 14-565 (La. App. 5 Cir. 12/16/14), 167 So.3d 71, 72, the defendant challenged the validity of his guilty pleas to two counts of battery of a police officer on the basis that the trial court failed to ascertain whether he was competent to proceed to enter the pleas. Six months prior to the guilty plea proceedings, a sanity commission was ordered and the defendant was found competent to proceed to trial. On appeal, the defendant argued that it was incumbent upon the trial court to discern that at the time of the plea defendant was competent. Id. at 74. This Court found that the trial court's exchange with the defendant at the time he pled guilty was sufficient to address the defendant's competency. Id. at 74-75. Specifically, before accepting the defendant's guilty plea, the trial court inquired as to his mental state:

I want to be very clear with regard to this area of it, sir, because I know from prior testimony in this court from the competency hearings that we have, that you do suffer from bipolar disorder.
It appears to me you have been, while incarcerated, managed well on your medication. You appear, certainly, to be understanding all of the proceedings here today. I just want to make sure that my impression is, in fact, true that you have been, while incarcerated, been taking your medication regularly?

To this question, the defendant replied, "Yes, I have, Your Honor." Id. at 74-75. Finding no evidence in the record to indicate the defendant's guilty pleas were not knowingly, intelligently, freely, and voluntarily entered into, we affirmed the defendant's convictions and sentences. Id. at 75-76.

In the case sub judice , while Mr. Williams does not specifically challenge the trial court's ruling finding that he was mentally competent to proceed to trial, he argues that merely because he requested a mental examination, the trial court should have concluded that he lacked the capacity to "understand the sentence" and the consequences of his pleading guilty, and thus, abused its discretion in denying his request to withdraw the guilty pleas. After reviewing the record, we find that at the time Mr. Williams entered his guilty pleas-as did the trial courts in both Tranchant and Romious , supra , where the defendants had previously participated in competency hearings and were deemed competent to proceed-the trial court specifically addressed whether any type of mental impairment existed that would affect his capacity to proceed and only after confirming with Mr. Williams that none did, agreed to accept his guilty pleas. Accordingly, we find that Mr. Williams' request for a mental examination does not support his contention that he was unable to understand the sentence that was agreed to as a part of the plea agreement.

We now turn to other similar cases wherein this Court has affirmed the trial court's denial of a defendant's motion to withdraw a guilty plea prior to sentencing when the defendant purports a lack of understanding of the proceedings or the consequences of a guilty plea. In State v. Joseph , supra , the defendant sought to withdraw his guilty plea to possession of cocaine prior to sentencing alleging that his plea was not knowingly and intelligently made because his counsel had provided erroneous advice about the length of time he would actually serve in prison under the plea agreement. Id. , 169 So.3d at 663. Having determined determined that the defendant's guilty plea was knowingly and intelligently entered into, and that it had gone to great lengths during the plea colloquy to insure that the defendant was aware of and understood the sentence, the trial court denied the defendant's motion to withdraw his plea. Id. In doing so, the trial court explained that the "fact that the defendant may [have been] under a misbelief as to how his time would be calculated [did] not affect" the validity of his plea. Id.

On appeal, this Court found no error in the trial court's ruling noting that throughout the plea colloquy the defendant indicated that he understood his sentencing exposure in connection with his guilty plea, and that both the defendant and his attorney signed the plea form that specifically set forth the terms of his sentence. Id. at 666. Moreover, the record revealed that at no point during the colloquy did the trial judge or the State indicate to the defendant that he would only be serving a percentage of the thirty-month sentence, nor did the defendant ask the trial judge whether he would be eligible for good time credit if he pled guilty. Id. Lastly, this Court held that, under these circumstances, the fact that the defendant thought he would be released earlier was not a basis for withdrawal of his guilty plea, especially in light of the fact that the defendant benefitted substantially from the plea bargain. Id. at 667.

Similarly, in State v. Boston , 14-632 (La. App. 5 Cir. 12/16/14), 167 So.3d 82, 85, writ denied , 15-0155 (La. 1/8/16), 184 So.3d 691, the defendant argued that the trial court erred in refusing to allow him to withdraw his guilty plea to possession of a firearm by a convicted felon on the basis that his plea was not knowingly and intelligently entered into because his trial counsel failed to ascertain and comprehend his multiple offender status, which status remained unclear. On appeal, this Court rejected the defendant's argument because the record revealed that the defendant had been fully informed of his rights and the consequences of his guilty plea. In particular, the record confirmed that the trial court had engaged the defendant in a lengthy plea colloquy wherein he had been specifically advised of his possible sentencing exposure if he proceeded to trial and was convicted, and that, as a fourth felony offender, he was facing potential life imprisonment. The trial court further explained that upon its acceptance of his guilty plea, the defendant would be sentenced to 20 years at hard labor without benefit of probation, parole, or suspension of sentence and that the State would agree not to file a multiple offender bill against him. The record further confirmed that the defendant indicated that he understood his sentencing exposure if he proceeded to trial, as well as the actual sentence that would be imposed, and that he believed that the plea agreement was in his best interest. Having determined on the record that the defendant's guilty plea was freely and voluntarily made, and that the defendant was adequately advised of his Boykin rights, we affirmed the trial court's ruling refusing to allow the defendant to withdraw his guilty plea. Id. at 86-87.

This Court also affirmed the trial court's denial of the defendant's motion to withdraw her guilty plea prior to sentencing in State v. Green , supra. In Green , pursuant to a plea agreement, the defendant pled guilty to manslaughter in exchange for a 20-year cap on the sentence, and the trial court ordering a pre-sentence investigation ("PSI"). State v. Green , 860 So.2d at 239. During the plea colloquy, the defendant stated on the record that she understood what the 20-year cap meant, but that she was told that if she plea bargained, she would get "like five or six years." The trial judge explained that was not a guarantee, but that "the PSI, with a cap of twenty years," meant her sentence could not be more than 20 years "no matter what." The defendant indicated she understood. Id. at 240. After confirming with the defendant that she had not been promised anything for her guilty plea other than the PSI with a cap of 20 years, the trial judge accepted the defendant's guilty plea, ordered a PSI, and deferred sentencing to a later date. Thereafter, the PSI was completed indicating an appropriate sentencing range for the defendant was 15 to 20 years. The defendant then filed a motion to withdraw her guilty plea, stating that she had pled guilty based upon the advice of her counsel and the understanding that the sentencing range would be between "five to seven years." Id. at 241. The trial court denied the motion. Id. at 242. On appeal, this Court affirmed the trial court's ruling finding that the record showed the defendant had been fully informed of her rights and the consequences of her guilty plea, and that although defense counsel had anticipated a sentencing range of between five and seven years, the trial judge had elicited testimony from the defendant evidencing that she understood there was no guarantee. Id. at 243.

In the instant matter, our review of the trial court record convinces us that despite Mr. Williams' contentions to the contrary-i.e. , that he was unable to read or understand the guilty plea form he signed, and did not truly comprehend or understand the consequences of his sentences-Mr. Williams' guilty plea was knowingly and voluntarily made. The record reflects that Mr. Williams underwent a competency evaluation wherein it was determined that, although he had a history of substance abuse, he fully understood the nature of the proceedings and the charges against him. Once found competent to proceed to trial, the record shows that the trial court conducted a Frye hearing, wherein it was established that Mr. Williams' counsel had made him aware of all of the State's evidence against him, including various audios/videos, and had advised him of the State's plea offer, which, in her professional judgment, was in his best interest. The trial court advised Mr. Williams of his status as a multiple felony offender and that, as such, if convicted at a trial, he would face an enhanced sentencing range of 66 to 198 years imprisonment-a virtual life sentence-without benefits, but that if he pled guilty "today," the State would agree not to file a multiple bill of information against him and the court would agree to impose a sentence of 35 years. When asked if he understood and wanted to proceed to trial, Mr. Williams advised the court that he did understand and that he did not want to go to trial, but would, instead, "take the 35." The record further shows that, prior to accepting Mr. Williams' guilty pleas, the trial court personally addressed Mr. Williams and conducted a lengthy Boykin colloquy with him during which Mr. Williams was advised of his constitutional rights, denied that he was being forced or coerced to enter his guilty pleas, and confirmed that he was satisfied with his counsel's representation.

Further, we find the record belies Mr. Williams' contention that he had difficulty reading and understanding the guilty plea form and that his plea was made without a full understanding of the sentence that was agreed to as part of the plea agreement. The court appointed forensic experts both agreed that, despite his history of substance abuse, Mr. Williams was able to understand the proceedings and charges imposed against him. Moreover, when specifically asked by the trial court whether he was suffering from any type of physical or mental impairment that would affect his ability to enter into the guilty plea, Mr. Williams responded in the negative. When asked whether he was able to read and understand the English language, Mr. Williams responded affirmatively. The record reflects that the trial court specifically explained to Mr. Williams the sentencing ranges for a conviction of armed robbery and a conviction of obscenity, and that his pleading guilty to a felony charge exposed him to greater penalties as a habitual offender if found guilty of a felony in the future. The record confirms that Mr. Williams indicated he understood that if the court were to accept his guilty pleas, the judge intended to sentence him to 35 years imprisonment in the Department of Corrections, with credit for time served on both counts, without benefits. Mr. Williams confirmed that his counsel had explained the guilty plea form to him and that the initials and signature on the form were his own. Additionally, the guilty plea form, signed by both Mr. Williams and his counsel, specifically set forth that upon acceptance of his guilty plea, Mr. Williams' sentence would be 35 years imprisonment without benefit of probation, parole or suspension of sentence. At no time during the lengthy plea colloquy did Mr. Williams inquire of the court regarding whether he would be eligible for "good time served" if he pled guilty. This question was first raised at the commencement of the sentencing hearing when Mr. Williams requested to withdraw his guilty plea. As set forth hereinabove, the record reflects that at that time, the trial judge again personally addressed Mr. Williams in an attempt to ascertain whether, in fact, Mr. Williams truly did not understand the plea agreement, and explained to him that, at 27 years old, given his sentencing exposure if found guilty at trial, the plea agreement was in his best interest.

We find the record clearly establishes that Mr. Williams was advised of-and that he understood-the sentences that would be imposed by the trial court upon acceptance of his guilty pleas. While Mr. Williams may now be dissatisfied with his sentences, this does not provide a basis for the withdrawal of his guilty pleas. State v. Joseph , 169 So.3d at 667 ; State v. Green , 860 So.2d at 243. Moreover, we find Mr. Williams benefited substantially from the plea agreement, a factor the trial judge obviously considered when evaluating Mr. Williams' request to withdraw his guilty pleas. Id. Under the circumstances presented, we find no abuse of the trial court's discretion in denying Mr. Williams' motion to withdraw his guilty pleas.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals no errors that require corrective action.

For the foregoing reasons, we find no error in the trial court's denial of defendants' motion to withdrawal his guilty pleas. Accordingly, his convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED

      Because Mr. Williams pled guilty, the record does not contain any facts relevant to the charged offenses; however, the bill of information alleges that Mr. Williams robbed Venitra Davis while armed with a firearm (count one), and that, following his arrest but prior to his arraignment, he committed the crime of obscenity by exposing his genitals in the Jefferson Parish Correctional Center (count two).

      Counsel for both the State and Mr. Williams stipulated that if Drs. Salcedo and Richoux were called to testify at trial, they would both be accepted as experts in their respective fields and that their testimony and conclusions would be one in the same as documented in their report. Based on the stipulation, the report was admitted into evidence.

      The plea offer also included that the trial court would recommend that Mr. Williams be allowed to participate in any available self-help programs during his incarceration, including drug treatment, GED, and job training

      What is now commonly referred to as a "Frye hearing" arose out of the case of Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), wherein the Supreme Court expanded the protection of the Sixth Amendment right to effective assistance of counsel beyond formal legal proceedings to include plea negotiations. As a result, attorneys are required to communicate to their clients every formal plea offer proposed by the State which may be favorable to the accused. 566 U.S. at 145, 132 S.Ct. 1399. Subsequent jurisprudence has interpreted this expansion to include the duties established by the Supreme Court in Strickland and Padilla , which include the duty to advise the defendant as to the advantages and disadvantages of a plea offer after making reasonable investigations thereof. State v. Surus , 13-903 (La. App. 3 Cir. 4/2/14), 135 So.3d 1236, 1245, writ denied , 14-0882 (La. 2/6/15), 157 So.3d 1136 (citing Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984) ; Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010) ). The purpose of a Frye hearing is to make a record of the fulfilment of defense counsel's duty to communicate favorable plea offers and to effectively assist the defendant in deciding whether to accept the State's offer or proceed to trial.

      Under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered free or voluntary unless, at the very least, the defendant had been advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Domino , 10-661 (La. App. 5 Cir. 1/25/11), 60 So.3d 659, 663.

      "Reasons supporting the withdrawal of a guilty plea would ordinarily include factors bearing on whether the guilty plea was voluntarily or intelligently made, such as a breach of a plea bargain inducement, misleading advice of counsel, strength of the evidence of actual guilt and the like." Green , 860 So.2d at 242 (citing State v. Cook , 32,110 (La. App. 2 Cir. 6/16/99), 742 So.2d 912, 919-920 ).

      We note that, although Mr. Williams states in his brief that he was under "duress" at the time he entered his guilty pleas, other than his non-specific argument that he lacked understanding of his sentences, he failed to further elaborate or specify a source of this alleged "duress." For the reasons discussed supra , based upon our review of the record below, we find no indication that Mr. Williams was under any sort of duress that would lead us to conclude that his guilty pleas were not freely or voluntarily made.