State of Louisiana Versus Landon P Rogers

STATE OF LOUISIANA NO. 23-KA-558

VERSUS FIFTH CIRCUIT

LANDON P ROGERS COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-333, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

August 28, 2024

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

AFFIRMED
MEJ
SUS
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Monique D. Nolan
Carolyn Chkautovich
Kristen Landrieu

COUNSEL FOR DEFENDANT/APPELLANT,
LANDON ROGERS
Jane C. Hogan

JOHNSON, J.

Defendant, Landon P. Rogers, appeals the 24th Judicial District Court’s

judgments convicting him of armed robbery and sentencing him to 70 years

imprisonment without benefit of probation, parole, or suspension of sentence. For

the following reasons, we affirm Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

The following facts and evidence were adduced at trial.

In 2019, Connor Larson lived in an apartment in Metairie and drove a white

convertible Mercedes coupe. On November 14, he was at work at a bar in uptown

New Orleans when a co-worker pointed out to him two people, later identified as

Jhon Da-Silva Ferreira and Defendant, Landon Rogers. He noticed that they were

“out-of-place” and recalled he did not “directly recognize them”. Later, he

recognized Jhon, but he had never seen Defendant before.

After the end of his shift the next morning, Connor went to a nearby bar with

friends and co-workers. Connor returned to his home around five or six in the

morning. Shortly after settling into bed, Connor heard knocking, and his dogs

began barking. Connor thought it was his co-worker he had offered earlier to let

spend the night if he needed a place to crash, so he opened the door. Defendant

entered with a gun drawn, and Jhon was behind him.

Defendant and Jhon wore masks and gloves and made Connor sit on his

couch. Jhon and Defendant asked if he had any money or drugs in the apartment

and if so, where they were. The pair took turns holding him on the couch while the

other rummaged through his apartment.

In an effort to appease Jhon and Defendant, Connor offered to withdraw

money from the Regions Bank ATM down the street. Then, in response to their

continued inquiries about drugs, Connor offered to go to his mother Rochelle

Peiffer’s nearby apartment to retrieve her medication. He did not remember

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whether they went to his mother’s apartment or the bank first, but once they

arrived at his mother’s home, only he and Defendant went inside. Connor went to

his mother’s bedroom to retrieve a bag with bottles of pills. As they left, Defendant

looked in Connor’s brother’s room and took a computer from a desk.

The three men returned to Connor’s apartment. One of them watched

Connor as the other carried items out of the apartment to the car. Connor recalled

that at some point, he was hit across the face several times with the gun. Pictures of

Connor’s face, which “showed bruises and red marks”, were published to the jury.

Connor testified that they stripped him to his underwear, laughed at him, and

made fun of his physique. Near the end of the ordeal, Jhon and Defendant removed

their masks. Connor explained that if a gun was not pointed at him, then a knife

from his own apartment was used to threaten him and he was terrified. He testified

that Jhon and Defendant brought him to his bedroom, made him sit on the bed, and

held a gun to the back of his head before disappearing.

Afterwards, Connor used a neighbor’s phone to call his parents. Detectives

arrived at his apartment shortly thereafter. Connor went to the investigations

bureau to speak to the officers. There, he identified Defendant and Jhon from two

six-person lineups. Connor admitted that, at first, he was not completely honest or

cooperative with the detectives. First, he told the detectives that he had been

kidnapped and robbed but did not initially tell them about his connection to Jhon.

Later Connor explained that connection by recalling that, weeks prior, he bought

ecstasy from Jhon using counterfeit money and believed this incident was

retaliation. Connor acknowledged that he owed Jhon eight hundred dollars for the

ecstasy but stated that he never saw Defendant before and did not owe him money.

On November 15, Sergeant (then Detective) Daniel Lassus, Lieutenant

Frank Renaudin, Sergeant Marc Macaluso, Sergeant (then Detective) Edward Sens,

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and Detective Derek Adams responded to the scene. Lead investigator Sergeant

Lassus recalled that he spoke to Connor and his neighbor.

Initially, the victim said Defendant and Jhon went to his apartment around

5:15 a.m., and knocked on the door; when the victim opened it, Defendant forced

his way in with a small caliber pistol before demanding money and other items. He

explained that Connor told him that they put duct tape over his mouth when he

began to make noise. The sergeant testified that the pistol changed hands several

times and that a knife was also held to Connor. He explained that the suspects took

numerous items from the apartment and put them in bags. The detective stated that

they then got in the victim’s car. Defendant was in the front passenger seat, and

Jhon was in the back seat. Connor drove to a Regions Bank but could not use the

ATM because he did not have his card, which upset the suspects. Sergeant Lassus

testified that the victim said he told the suspects that there were drugs at his

mother’s house nearby. The suspects made Connor drive to his mother’s house,

where they took a shave kit containing pill bottles with her name on them. Connor

told Sergeant Lassus that the men returned to Connor’s residence and Jhon went

inside to retrieve the ATM card. Connor then drove back to the Regions Bank,

where he withdrew five hundred dollars. Connor gave them the money and the

card. Then the men returned to his apartment where he was made to undress and

lay down before the suspects fled. Sergeant Lassus explained that Conner initially

left out some details, but later admitted that he met Jhon once for a brief hand-to-

hand transaction to purchase ecstasy. Later, Connor identified the handgun used in

the incident. He also identified photographs of his belongings, including a

backpack, bag of marijuana, as well as duct tape and a jacket Defendant wore on

the morning of the incident.

From the photograph exhibits taken at the crime scene and admitted into

evidence, Sgt. Lassus identified Connor’s vehicle and first-floor apartment, bottles

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of pills taken by Defendant from the victim’s mother’s residence, and a laptop.

Sergeant Lassus stated the apartment’s appearance was consistent with how it was

described by the victim in his statement. Also, he did not see any signs of drug use

or distribution in the victim’s apartment.

Lieutenant Renaudin contacted the Regions Bank branch manager, who

provided photographs of the victim’s vehicle with three occupants at the bank’s

ATM at 7:23 a.m. on November 15, 2019. Sergeant Sens used an automated

license plate recognition system (ALPR system) to track the movements of the

victim’s white Mercedes and Defendant’s green Toyota 4Runner. The timeline

established by the locations of those vehicles from the evening of November 14

through the morning of November 15 corroborated Connor’s statement.

Sergeant Sens observed a green Toyota 4Runner traveling approximately

twenty seconds behind the victim’s car as it crossed into Jefferson Parish on

November 15, 2019. He explained that the green vehicle also followed the victim

home around 9:50 p.m. the previous night and, about twenty minutes later, got on

I-10. The green vehicle was about one mile from the victim’s place of employment

around 10:30 p.m. on Thursday, November 14. The ALPR system showed the

green vehicle near the victim’s place of employment around 1:30 a.m. on Friday,

November 15. Around 5:09 a.m., the victim’s car was by his apartment, and the

green vehicle was about twenty seconds behind. The system reflected that at 6:58

a.m. on November 15, the victim’s vehicle was at Lake Avenue and Old Hammond

Highway traveling outbound. Defendant’s green vehicle was captured on the

Westbank at 8:15 a.m.

Sergeant Lassus explained that after the ALPR research, he conducted

several interviews. He stated that Connor initially left out some details, including

him buying drugs from co-defendant Jhon at some point. Connor later advised that

he met Jhon once for a brief hand-to-hand transaction to purchase ecstasy and that

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Connor did not get a good look at him then. Sergeant Lassus interviewed Connor

again on November 21, at which time he signed a photograph identifying the

handgun used in the incident. Connor also signed photographs of various items

from Defendant’s vehicle that belonged to him (including a backpack and a bag of

marijuana), as well as duct tape, and a jacket worn by Defendant on November 14 -

15. Sergeant Lassus confirmed that Connor identified Defendant and Jhon as the

perpetrators.

On November 26, Sergeant Lassus spoke to Jhon, who confirmed everything

he had learned, as a result of the investigation. At trial, Jhon Da-Silva Ferreira

acknowledged that he pled guilty to charges involving the kidnapping and armed

robbery of Connor, to the burglary of Ms. Peiffer’s home, and to various drug-

related charges. After confirming that he received a fifteen-year sentence for the

instant armed robbery, kidnapping, and simple burglary charges, and a twenty-year

sentence for the drug-related convictions, he refused to answer any other questions

and invoked what he believed was his Fifth Amendment privilege against self-

incrimination.

Sergeant Macaluso testified that Defendant’s green Toyota 4Runner was

located on November 18 in New Orleans. Defendant was arrested, two search

warrants for the vehicle were obtained, and the vehicle was towed to the

investigations bureau. Investigators found two bottles of pills (containing

hydrocodone and D-amphetamine salt, commonly known as Adderall) belonging

to Ms. Peiffer (the victim’s mother) in the car. The police also found a loaded

pistol in the front compartment of the center console and recovered several items

from the victim’s apartment in the vehicle: a bag of whey protein, a mesh Adidas

bag, toothpaste, a North Face bag which contained wires and a bag of marijuana, a

headset, and vape oils. The jacket Connor said Defendant wore and a roll of

Gorilla tape used to subdue Connor were also located inside the vehicle. Sergeant

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Lassus also identified Defendant’s voice on a jail call played for the jury and

explained that Defendant referred to Regions Bank on the call, but no one from law

enforcement had mentioned the bank to Defendant.

A unanimous jury found Defendant not guilty of second degree kidnapping

and simple burglary of an inhabited dwelling, but convicted him of the responsive

verdict of armed robbery, in violation of La. R.S. 14:64, after a two-day trial in

January 2023. A week later, the district court reviewed Defendant’s criminal

record, observed that he was “incorrigible” and not likely to “ever get any better,”

and sentenced Defendant to sixty years imprisonment.

A multiple offender bill was filed in September 2023. At the initial hearing

on the bill, the State offered a certified transcript of a February 2019 conviction in

Livingston Parish, wherein Defendant voluntarily pled guilty to possession of

marijuana with intent to distribute, and a penitentiary packet (“pen pack”) to prove

Defendant was the same person who was convicted of possession of marijuana

with intent to distribute previously in Livingston Parish. The defense objected to

the proof the State offered and argued that, in this case, the testimony of a witness

was required to show that Defendant and the person convicted of the 2019 charge

were the same person. The court took the matter under advisement, then denied

Defendant’s written motion to reconsider sentence and noted his objection to that

ruling.

The district court found that, under State v. Wade, 22-260 (La. App. 5 Cir.

2/27/23), 358 So.3d 937, it could consider the totality of the evidence presented

and found that the defendant convicted of the prior offense in 2019 and Defendant

were the same person. The court adjudicated Defendant a second felony offender,

vacated his previous sentence, and sentenced Defendant to seventy years without

the benefit of parole, probation or suspension of sentence. The instant appeal

followed.

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ASSIGNMENTS OF ERROR

On appeal, Defendant argues that 1) the evidence was insufficient to support

his conviction of armed robbery; 2) the trial court violated his rights to confront his

accusers and to due process when it allowed the State to question his co-

Defendant, who previously informed the court that he refused to testify,

extensively; 3) the evidence presented to support his multiple offender adjudication

was insufficient; and 4) the trial court abused its discretion when it failed to

consider the sentencing guidelines of La. C.Cr.P. art. 894.1, and imposed an

“excessive and disparate” sentence.

The State counters that it set forth sufficient evidence to support both

Defendant’s armed robbery conviction and his subsequent second felony offender

adjudication. Further, the State contends that co-defendant Jhon Da-Silva

Ferreira’s invocation of his Fifth Amendment privilege against self-incrimination

“did not add critical weight to [it’s] case in a form not subject to cross-examination

which prejudiced Rogers unfairly”. Last, because the defense failed to file a

motion to reconsider sentence after Defendant’s original sentence was vacated, and

his adjudication as a second felony offender, the State contends that this Court is

limited to a bare review for unconstitutional excessiveness, and the record supports

the sentence imposed by the trial court.

LAW AND DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Defendant argues that there is insufficient evidence to support his

conviction. He contends that the only evidence was Connor’s testimony, which he

describes as self-serving and contradictory to the physical evidence. Defendant

asserts that Connor was willingly paying off a drug debt and opines that, based on

his acquittal of the other charges, the jury did not believe Connor’s testimony.

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The question of sufficiency of the evidence is properly raised in the trial

court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art.

821. State v. Nguyen, 22-286 (La. App. 5 Cir. 2/27/23), 359 So.3d 108, 118.

Defendant did not file such a motion in this case, but the failure to file a motion for

post-verdict judgment of acquittal does not preclude appellate review of the

sufficiency of the evidence. State v. Manuel, 20-172 (La. App. 5 Cir. 6/2/21), 325

So.3d 513, 538, writ denied, 21-926 (La. 10/12/21), 325 So.3d 1071.

In reviewing the sufficiency of the evidence, an appellate court must

determine if the evidence, whether direct or circumstantial, or a mixture of both,

viewed in the light most favorable to the prosecution, was sufficient to convince a

rational trier of fact that all of the elements of the crime have been proven beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d

794, 804. Circumstantial evidence consists of proof of collateral facts and

circumstances from which the existence of the main fact can be inferred according

to reason and common experience. State v. Gatson, 21-156 (La. App. 5 Cir. 12

12/29/21), 334 So.3d 1021, 1034. When circumstantial evidence is used to prove

the commission of an offense, La. R.S. 15:438 provides that “assuming every fact

to be proved that the evidence tends to prove, in order to convict, it must exclude

every reasonable hypothesis of innocence.” State v. Woods, 23-41 (La. App. 5 Cir.

11/15/23), 376 So.3d 1144, 1155, writ denied, 23-1615 (La. 5/29/24), 385 So.3d

700. This is not a separate test from the Jackson standard but rather provides a

helpful basis for determining the existence of reasonable doubt. Id.

The directive that the evidence be viewed in the light most favorable to the

prosecution requires the reviewing court to defer to the actual trier of fact’s rational

credibility calls, evidence weighing, and inference drawing. State v. Aguilar, 23-34

(La. App. 5 Cir. 11/15/23), 376 So.3d 1105, 1108. This deference to the fact-finder

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does not permit a reviewing court to decide whether it believes a witness or

whether the conviction is contrary to the weight of the evidence. State v.

McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1102. Indeed, the

resolution of conflicting testimony rests solely with the trier of fact, who may

accept or reject, in whole or in part, the testimony of any witness. State v. Lavigne,

22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 940, writ not considered, 23-

1119 (La. 10/10/23), 370 So.3d 1086. Thus, in the absence of internal contradiction

or irreconcilable conflicts with physical evidence, the testimony of one witness, if

believed by the trier of fact, is sufficient to support a conviction. State v. Sly, 23-60

(La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1072, writ denied, 23-1588 (La.

4/23/24), 383 So.3d 608.

Here, Defendant was convicted of armed robbery. Armed robbery is the

taking of anything of value belonging to another from the person of another or that

is in the immediate control of another, by use of force or intimidation, while armed

with a dangerous weapon. La. R.S. 14:64. To support a conviction for armed

robbery, the State must prove that there was (1) a taking, (2) of anything of value,

(3) from the person of or in the immediate control of another, (4) by use of force or

intimidation, (5) while armed with a dangerous weapon. State v. Collins, 04-1443

(La. App. 5 Cir. 7/26/05), 910 So.2d 454, 457-58. A gun used in connection with a

robbery is, as a matter of law, a dangerous weapon. State v. Williams, 12-687 (La.

App. 5 Cir. 5/16/13), 119 So.3d 228, 233, writ denied, 13-1335 (La. 12/2/13), 126

So.3d 500. A knife has also been found to be a dangerous weapon. State v.

Delagardelle, 06-898 (La. App. 5 Cir. 4/11/07), 957 So.2d 825, 830, writ denied,

07-1067 (La. 11/21/07), 967 So.2d 1154. Furthermore, the act of pointing a gun at

a victim is sufficient to prove the required element of force or intimidation for

purposes of armed robbery. Williams, supra. Further, “the overwhelming weight of

modern authority holds that a creditor who collects on a debt by the use of force

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commits the offense of robbery, which, in Louisiana, becomes an armed robbery

when the offender using force or intimidation is ‘armed with a dangerous

weapon.’” State v. Jackson, 09-2406 (La. 1/19/11), 55 So.3d 767, 772.

This Court addressed the credibility of a witness in State v. Cowart, 01-1178

(La. App. 5 Cir. 3/26/02), 815 So.2d 275, 284-85, writ denied, 02-1457 (La.

5/9/03), 843 So.2d 387. In that case, there was no physical evidence linking the

defendant to the crime, and a single witness identified the defendant as the

perpetrator of a shooting. At trial, the reliability of the eyewitness was attacked

because the witness had initially lied to the police, gave a description that did not

match the defendant, had perjured herself during motion hearings, and had changed

her story about the crime scene and the number of shots she heard. Despite this

long list of deficiencies, this Court held that it was within the jury’s discretion to

believe the witness’s testimony.

In State v. Thomas, 08-813 (La. App. 5 Cir. 4/28/09), 13 So.3d 603, writ

denied sub nom. State ex rel. Thomas v. State, 09-1294 (La. 4/5/10), 31 So.3d 361,

the defendant averred that the evidence was insufficient to support his conviction

for armed robbery because a witness’s testimony was not supported by the

evidence and was inconsistent. Specifically, those inconsistencies pertained to who

was present during the incident and the description of the gun used. This Court

stated that even assuming these discrepancies were not explained, they went to the

credibility of the witness, which is within the sound discretion of the trier of fact,

who may accept or reject, in whole or in part, the testimony of any witness. Id. at

607. This Court further explained that the witness’s testimony was corroborated by

another witness’s testimony. This Court concluded that the evidence was

sufficient. Id.

Here, the evidence presented was sufficient under the Jackson standard to

show that Defendant committed armed robbery. Defendant contends that Connor’s

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testimony was contradicted by physical evidence. He specifically asserts that the

pictures of Connor’s face after the incident do not show bruises from being hit

across the face with the gun. However, the photographs of Connor’s face were

viewed by the jury and they apparently found his testimony credible. Further, the

State did not have to prove beyond a shadow of a doubt that Connor was struck in

the face with the firearm in order for the jury to find that Defendant committed an

armed robbery. Defendant avers that Connor testified that he did not have drugs

but Connor actually had a bag of marijuana taken from his apartment -- the jury

heard that testimony also. The jury made a credibility determination and found the

evidence as to the armed robbery believable. Defendant suggests that Connor

willingly paid off his drug debt, but the record supports a conclusion that he and

Jhon used force and intimidation to collect on the debt owed to Jhon. See Jackson,

55 So.3d at 772.

Further, Defendant’s assertion that Connor’s testimony was uncorroborated

is incorrect. Connor testified that a gun was used and identified a picture of the gun

used during the robbery. A gun was found in Defendant’s vehicle three days after

the offense. Connor testified that Defendant and Jhon took various items from his

home, and a laptop and pill bottles with his mother’s name on them from her home

– police found those items in Defendant’s green Toyota 4Runner a few days after

the armed robbery. Additionally, photographs from the bank corroborated

Connor’s testimony that he and two individuals took his vehicle to the bank on the

morning of November 15, 2019. The ALPR system tracking of Connor’s vehicle

also corroborated his statements. Photographs from the ALPR system tracking

Defendant’s vehicle showed it followed Connor’s vehicle and was in the vicinity

of his workplace and apartment.

In conclusion, we find that the State sufficiently proved that Defendant

committed armed robbery. The State established that various items were taken

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from Connor’s apartment. Further, he withdrew hundreds of dollars from an ATM,

which he gave to Defendant. The jury accepted the evidence that Defendant had a

gun that was used to force Connor to cooperate, along with one of his own knives.

The jury’s finding that Defendant committed armed robbery is permissibly

supported by the testimony of one witness that is free of internal contradictions or

conflict with physical evidence. Sly, supra. Any other inconsistencies found in

Connor’s testimony in comparison with the other evidence presented goes to the

weight of the evidence and not its sufficiency. See State v. Cole, 15-358 (La. App.

5 Cir. 12/23/15), 182 So.3d 1192, 1199, writ denied, 16-179 (La. 2/10/17), 215

So.3d 700. Appellate courts have found that it is within the jury’s discretion to

credit the testimony of witnesses who initially lied to the police, perjured

themselves during motion hearing, and gave inconsistent accounts about details of

the crime. See Cowart, 815 So.2d at 284-85. The jury may even accept or reject, in

whole or part, the testimony of a witness who provided inconsistent accounts

regarding the number of people present during an incident, or the description of the

weapon used. See Thomas, 13 So.3d at 607. Considering the foregoing, this

assignment of error lacks merit.

RIGHT TO CONFRONT ACCUSERS AND CO-DEFENDANT’S
INVOCATION OF FIFTH AMENDMENT PRIVILEGE ON THE WITNESS
STAND

Defendant contends that the judge erroneously allowed the State to ask Jhon

multiple questions that added weight to its weak case despite his refusal to answer

questions. He avers that the State anticipated that Jhon would refuse to answer

questions as it requested that he be appointed an attorney prior to taking the stand.

He argues that his Sixth Amendment rights to confrontation and due process were

violated by the State’s repeated improper questioning of Jhon concerning his

alleged confession implicating Defendant.

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In response to the prosecutor’s initial questions, Jhon stated his name and

acknowledged that he was in prison because he pled guilty to charges involving the

kidnapping and armed robbery of Connor, the burglary of Connor’s mother’s

home, and drug charges. He agreed that he was sentenced to “fifteen years for the

armed robbery, kidnapping, and simple burglary, and then twenty years on the

drugs.” The prosecutor then asked Jhon if he and Defendant went into Connor’s

apartment to get his money he was owed from the prior drug deal. At that time,

Jhon stated he was pleading “the Fifth.” The judge informed Jhon that because he

already pled guilty, he did not have a Fifth Amendment privilege, and ordered him

answer the questions.

After a bench conference outside of the presence of the jury, the judge

permitted the prosecutor to treat Jhon as a hostile witness. Jhon continued to refuse

to answer any of the State’s questions.

The Sixth Amendment to the United States Constitution guarantees an

accused in a criminal prosecution the right to be confronted with the witnesses

against him. Additionally, the Confrontation Clause of the Louisiana Constitution

directly affords the accused the right to “confront and cross-examine the witnesses

against him.” La. Const. art. I, § 16; State v. Shorter, 23-128 (La. App. 5 Cir.

11/29/23), 377 So.3d 421, 432, writ denied, 23-1669 (La. 5/29/24), 385 So.3d 704.

The main and essential purpose of confrontation is to secure for the opponent the

opportunity of cross-examination. State v. Bell, 23-85 (La. App. 5 Cir. 10/31/23),

374 So.3d 986, 997. Cross-examination is the principal means by which

believability and truthfulness of testimony are tested and the cross-examiner has

traditionally been allowed to impeach, or discredit, the witness. Id.

Although defense counsel objected to every question the prosecution asked

Jhon besides the inquiry about his convictions and sentences, the defense never

objected at trial on the Confrontation Clause argument he now raises for the first

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time on appeal. To preserve the right to seek appellate review of an alleged trial

court error, a party must state an objection contemporaneously with the occurrence

of the alleged error as well as the grounds for that objection. See La. C.Cr.P. art.

841; State v. Anthony, 17-372 (La. App. 5 Cir. 12/30/20), 309 So.3d 912, 927, writ

denied, 21-176 (La. 10/12/21), 325 So.3d 1067, cert. denied, -- U.S. --, 143 S.Ct.

29, 214 L.Ed.2d 214 (2022). In failing to object at trial, Defendant waived the issue

for appellate review. See State v. Otkins-Victor, 15-340 (La. App. 5 Cir. 5/26/16),

193 So.3d 479, 533, writ denied sub nom. State ex rel. Otkins-Victor v. State, 16-

1495 (La. 10/15/18), 253 So.3d 1294 (This Court explained that for the first time

on appeal, the defendant argued that her Sixth Amendment right to confrontation

was violated by her inability to cross-examine the coroner and that she never raised

the issue that she was denied her right to confrontation by the coroner’s failure to

testify; thus, the issue was not properly preserved for appeal.).

Further, Confrontation Clause violations do not fit within the limited

category of constitutional errors that are deemed prejudicial in every case—the

violation of a defendant’s right to confrontation may constitute harmless error. Sly,

376 So.3d at 1076. The factors to be considered in determining whether the error

was harmless include the importance of the testimony of the witness in the State’s

case, whether the testimony is cumulative, the presence or absence of evidence

corroborating or contradicting the testimony, the extent of the cross-examination

permitted, and the overall strength of the State’s case. State v. Mullins, 14-2260

(La. 1/27/16), 188 So.3d 164, 171-72. Even if Defendant’s right to confrontation

was violated by the State’s presentation of Jhon as a witness while (improperly)

exercising his Fifth Amendment right against self-incrimination, the cumulative

nature of the unanswered questions compared to the other evidence presented, and

the overall strength of the State’s case rendered any error caused by the

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confrontation issue harmless. Further, the instructions the trial court provided to

the jury prior to deliberation explained that attorneys’ statements are not evidence.

SUFFICIENCY OF PROOF OF PRIOR FELONY CONVICTION

Defendant argues that because the State failed to call an expert to establish a

sufficient link between him and his alleged prior conviction, his habitual offender

adjudication and sentence must be vacated.

In this case, on September 7, 2023, the State filed a multiple bill wherein it

alleged that Defendant was previously charged in case number 18-FELN-037021

in section “E” in the 21st Judicial District Court in Livingston Parish for violating

La. R.S. 40:966(A), possession of marijuana with intent to distribute. The State

provided that Defendant pled guilty as charged in that case on February 4, 2019,

and was sentenced that day to five years imprisonment at hard labor. The State said

the sentence was suspended and that Defendant was placed on two years of active

probation.

At a hearing on September 7, 2023, the prosecutor offered into evidence a

transcript from the Livingston Parish case and a reporter’s certificate showing that

Defendant pled guilty to the Livingston Parish charge. Defense counsel replied,

“Well, I’m sure they have some proof that somebody named -- someone pled

guilty. I don’t know how they’re going to prove it’s the gentleman sitting in the

box.” The prosecutor then explained that she was offering into evidence certified

records from a hearing in Livingston Parish from February 4, 2019, where

Defendant pled guilty to possession with intent to distribute marijuana. Also, she

offered into evidence a certified copy of his pen pack. The judge asked if there

were fingerprints on the pen pack, and the prosecutor answered affirmatively. The

judge then asked if she was going to call a fingerprint expert. The prosecutor

explained that because the fingerprints were insufficient to determine a match, she

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obtained the transcript. Defense counsel objected, and the exhibits were admitted

into evidence.

Defense counsel expressed that he had never seen anyone do a multiple bill

without a fingerprint expert. He opined that in almost every case, a fingerprint

expert is called to testify. Counsel voiced concern for the admissibility of the

transcript without a witness. He questioned how they could know that the

individual listed in the transcript was the present Defendant. Counsel argued, “And

I would submit to you that the -- I would object to the entirety of this, one, because

how do we know this is the Landon Rogers sitting here. It could be any person

named ‘Landon Rogers.’ They have submitted no witnesses.” Counsel posited that

in previous cases where the fingerprints were not sufficient, a person from the prior

case such as the judge, prosecutor, or defense attorney was called as a witness. He

concluded that they did not know that the person described by the paperwork was

Defendant.

The prosecutor provided that the pen pack showed that Landon Rogers had a

2019 conviction and that it contained insufficient fingerprints. She explained, “A

creative way to get around that was to get the transcript of him pleading guilty

voluntarily to that conviction, and that is the reason for the court-certified

transcript and the pen pack.” The prosecutor argued that Defendant sat before the

judge for months and that the judge knew his birthday and name, which were

consistent with the pen pack and the waiver of rights in the transcript. The judge

took the matter under advisement.

At a hearing on September 12, 2023, the judge asked defense counsel if he

had anything to say, and counsel replied that for appeal purposes, he objected. He

then stated he also objected to the timeliness of the filing of the multiple bill. The

judge explained that he had a transcript from the prior conviction in Livingston

Parish and a pen pack. The judge referenced La. R.S. 15:529.1(F) in finding that

23-KA-558 16

the pen pack was “admissible as further proof.” The judge cited State v. Wade, 22-

260 (La. App. 5 Cir. 2/27/23), 358 So.3d 937. He explained that while there were

no fingerprints in the instant case, the State used other methods of evidence to

prove Defendant’s identity. The judge provided that he had a name, birthday, and

social security number in the pen pack. He mentioned that a specific type of

evidence was not required and that the transcript and pen pack were sufficient to

prove that Defendant was the same person convicted in the prior offense. The

judge then adjudicated Defendant a second-felony offender.

To prove that a defendant is a habitual offender, the State must establish by

competent evidence the defendant’s prior felony convictions and that defendant is

the same person who was convicted of the prior felonies. State v. Celestine, 20-170

(La. App. 5 Cir. 11/4/20), 306 So.3d 579, 587. Additionally, the State bears the

burden of proving that the predicate convictions fall within the “cleansing period”

prescribed by La. R.S. 15:529.1(C). Wade, 358 So.3d at 941. Once the State

establishes a prior felony conviction, then it must offer proof that the accused is the

same person who was convicted of the prior felony. State v. Castillo, 13-552 (La.

App. 5 Cir. 10/29/14), 167 So.3d 624, 647, writ denied sub nom. State ex rel.

Castillo v. State, 14-587 (La. 11/7/14), 152 So.3d 172, and writ denied, 14-2567

(La. 9/18/15), 178 So.3d 145. The defendant’s identity may be shown by a variety

of methods, including the testimony of witnesses, fingerprint analysis by an expert,

photographs in a duly authenticated record, or evidence of identical driver’s license

number, social security number, sex, race, and date of birth. Wade, supra. Merely

establishing that the defendant’s name and that of the person previously convicted

are the same is not sufficient evidence of identity under La. R.S. 15:529.1. State v.

Murphy, 09-805 (La. App. 5 Cir. 2/23/10), 34 So.3d 886, 889, writ denied, 10-690

(La. 10/15/10), 45 So.3d 1110. The State is not required to use a specific type of

evidence. Id.

23-KA-558 17

In State v. Westbrook, 392 So.2d 1043, 1045 (La. 1980), which involved a

conviction for driving while intoxicated (“DWI”), the Louisiana Supreme Court

found that documentation of the defendant’s name, driver’s license number, sex,

race, and date of birth was sufficient evidence for the State to carry its burden of

proving that the defendant was the same person previously convicted of a DWI.

See also State v. Neville, 96-137 (La. App. 4 Cir. 5/21/97), 695 So.2d 534, writ

denied, 97-1637 (La. 12/12/97), 704 So.2d 1180; State v. Henry, 96-1280 (La.

App. 4 Cir. 3/11/98), 709 So.2d 322, writ denied sub nom. State ex rel. Henry v.

State, 99-2642 (La. 3/24/00), 758 So.2d 143 (where the defendants were

adjudicated multiple offenders, and the appellate court found that sufficient proof

of identity was established despite the lack of photographs or fingerprints).

Here, the State admitted into evidence a pen pack for the prior offense in

Livingston Parish for possession with intent to distribute marijuana, as well as a

master record and arrest information relating to Defendant’s current armed robbery

conviction. The defendants in both cases are white males, have the same date of

birth, same address, same social security number, and same state identification or

SID number. In addition, a suspect rap sheet for the prior conviction contains a

photograph, which appears to show the same individual that the victim selected

from a lineup in the instant case.

Because the name, race, date of birth, address, social security number, and

state identification number are the same between Defendant and the person that

previously pled guilty to possession of marijuana with intent to distribute on

February 4, 2019, we find the State sufficiently established that the individuals

were one and the same. Further, the photographs reflect the same individual. Thus,

we find the district court did not err in adjudicating Defendant a second-felony

offender.

23-KA-558 18

REVIEW OF EXCESSIVE SENTENCE CLAIM

A “defendant should be sentenced in accord with the version of La. R.S.

15:529.1 [the multiple offender statute] in effect at the time of the commission of

the charged offense.” State v. Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379

So.3d 196, 204 n.6. At the time of the offense, La. R.S. 15:529.1(A)(1) provided

that if the second felony is such that upon a first conviction the offender would be

punishable by imprisonment for any term less than his natural life, then the

sentence to imprisonment shall be for a determinate term not less than one-third the

longest term and not more than twice the longest term prescribed for a first

conviction. As such, the enhanced sentencing range was thirty-three years to one

hundred ninety-eight years.

La. C.Cr.P. art. 881.1(B) provides that a motion for reconsideration of

sentence “shall be oral at the time of sentence or shall be in writing thereafter and

shall set forth the specific grounds on which the motion is based.” La. C.Cr.P. art.

881.1(E) provides that “[f]ailure to make or file a motion to reconsider sentence or

to include a specific ground upon which a motion to reconsider sentence may be

based, including a claim of excessiveness, shall preclude the state or the defendant

from raising an objection to the sentence or from urging any ground not raised in

the motion on appeal or review.” This Court has held that when the specific

grounds for objection to the sentences, including alleged non-compliance with La.

C.Cr.P. art. 894.1, are not specifically raised in the trial court, then these issues are

not included in the bare review for constitutional excessiveness, and the defendant

is precluded from raising these issues on appeal. State v. Kelson, 23-274 (La. App.

5 Cir. 12/27/23), 379 So.3d 779, 784.

Where a new sentence has been imposed following vacation of a prior

sentence, the defendant is required to file a new motion for reconsideration of

sentence in the trial court, in order to preserve appellate review of the newly-

23-KA-558 19

imposed sentence. State v. Robinson, 11-12 (La. App. 5 Cir. 12/29/11), 87 So.3d

881, 912, writ denied, 12-279 (La. 6/15/12), 90 So.3d 1059. The court cannot

assume that the defendant’s objections to the earlier sentence are equally

applicable to the new sentence imposed. Id. Because Defendant did not file a new

motion for reconsideration of his enhanced sentence with specifically alleged

grounds for objection, he is not entitled to a review of whether the trial court

complied with La. C.Cr.P. art. 894.1, and this Court is limited to a review of his

sentence of seventy years imprisonment for constitutional excessiveness.

The Eighth Amendment to the United States Constitution prohibits cruel and

unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits

cruel and unusual punishment but further explicitly prohibits excessive

punishment. State v. Ervin, 23-11 (La. App. 5 Cir. 8/30/23), 370 So.3d 1236, 1245,

writ denied, 23-1336 (La. 4/9/24), 382 So.3d 816. A sentence is considered

excessive, even when it is within the applicable statutory range, if it makes no

measurable contribution to acceptable goals of punishment and is nothing more

than the purposeful imposition of pain and suffering and is grossly out of

proportion to the severity of the crime. Id. A sentence is grossly disproportionate

if, when the crime and punishment are considered in light of the harm done to

society, it shocks the sense of justice. Barnes, 379 So.3d at 204.

The appellate court shall not set aside a sentence for excessiveness if the

record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); State v. Corea-

Calero, 22-117 (La. App. 5 Cir. 12/28/22), 355 So.3d 697, 701. On appeal, the

relevant question is whether the trial court abused its broad sentencing discretion,

not whether another sentence might have been more appropriate. State v. Lasalle,

22-577 (La. App. 5 Cir. 8/18/23), 370 So.3d 521, 531.

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

23-KA-558 20

offender; and 3) the sentence imposed for similar crimes by the same court and

other courts. Id at 532. However, there is no requirement that specific matters be

given any particular weight at sentencing. State v. Bridgewater, 22-517 (La. App.

5 Cir. 4/26/23), 362 So.3d 998, 1010. An appellate court cannot set aside a

sentence as excessive absent a manifest abuse of discretion. Id.

As to the first factor, the nature of the crime, the Louisiana Supreme Court

has recognized that armed robbery “is a pernicious offense” which “creates a great

risk of emotional and physical harm to the victim, to witnesses, and, at times, even

to the offender.” State v. Robinson, 22-310 (La. App. 5 Cir. 4/12/23), 361 So.3d

1107, 1116 (citing State v. Celestine, 12-241 (La. 7/2/12), 92 So.3d 335, 337 (per

curiam)); State v. Ross, 13-924 (La. App. 5 Cir. 5/28/14), 142 So.3d 327, 334. This

Court has also stated that armed robbery is a “serious offense against the person.”

Robinson, 361 So.3d at 1116.

In the instant matter, Defendant and Jhon went to Connor’s place of work

before ultimately following him home from a different bar in the early morning

hours to collect a debt owed to Jhon for drugs. The evidence at trial indicated that

Defendant was armed with a loaded gun, which was used to hit the victim in the

face several times and held to the back of the victim’s head, and that a knife may

also have been used. Defendant and Jhon held the victim on his couch while they

searched his apartment for drugs and money. The victim drove Defendant and Jhon

to the bank and his mother’s home in search of money and/or drugs. The victim

stated that at some point, he was duct taped and also forced to undress, and

ridiculed. The victim testified that he was terrified during the encounter.

As to the nature and background of the offender, Defendant was

approximately twenty-six years old at the time of the offense in 2019. At

sentencing, the State asserted that Defendant had five prior convictions for

burglaries, possession with intent to distribute marijuana, and felony theft from

23-KA-558 21

2012, 2013, and 2019. The judge specifically mentioned Defendant’s prior

convictions in sentencing Defendant and stated that he did not think Defendant

could be reformed. The judge further acknowledged that while the jury did not

convict Defendant of the other crimes, the judge believed Defendant was guilty of

the kidnapping and burglary.

The third factor requires consideration of sentences imposed for similar

crimes by this Court and other courts. This Court and other courts have upheld

similar and longer sentences for defendants convicted of armed robbery and

adjudicated second-felony offenders. In fact, similar sentences have been upheld

for defendants that were not multiple billed. See State v. Williams, 04-697 (La.

App. 5 Cir. 11/30/04), 889 So.2d 1135, writ denied, 05-395 (La. 5/13/05), 902

So.2d 1017; State v. Billiot, 13-1188 (La. App. 3 Cir. 4/2/14), 135 So.3d 1267,

writs denied, 14-936 (La. 11/26/14), 152 So.3d 902, and 14-949 (La. 11/26/14),

152 So.3d 903; State v. Reado, 12-409 (La. App. 1 Cir. 11/2/12), 110 So.3d 1082;

State v. Byrd, 491 So.2d 87 (La. App. 3 Cir. 1986), writ denied, 506 So.2d 1219

(La. 1987).

In State v. Callier, 39,650 (La. App. 2 Cir. 7/27/05), 909 So.2d 23, writ

denied, 06-308 (La. 9/1/06), 936 So.2d 196, the defendant was convicted of three

counts of armed robbery and adjudicated a second-felony offender. The defendant

faced a sentencing exposure of forty-nine and a half years to one hundred ninety-

eight years at hard labor without benefits for armed robbery as a second-felony

offender. Id. at 34. The trial court found that there was an undue risk that the

defendant would commit another offense if placed on probation or given a

suspended sentence. The court determined that the defendant was in need of

correctional treatment and that a lesser sentence would deprecate the seriousness of

the offense. The court observed that the defendant had a long criminal history

despite his youth, including crimes of violence and crimes against the person. In

23-KA-558 22

mitigation, the trial court noted that the gun used in the robbery was not fired and

that no one was physically injured. Id. at 35. The enhanced sentence of seventy

years imprisonment was upheld.

In State v. Billingsley, 13-11 (La. App. 3 Cir. 10/9/13), 123 So.3d 336, the

defendant, who was convicted of armed robbery and armed robbery with a firearm

and adjudicated a second-felony offender, faced a sentencing range of forty-nine

and a half years to one hundred ninety-eight years at hard labor. The trial court

imposed a sentence of seventy years at hard labor without benefit of parole,

probation, or suspension of sentence. The third circuit explained that the defendant

held a gun to one victim’s head while an accomplice did the same to the other

victim. The court upheld the sentences. Id. at 344.

In State v. Carroll, 41,001 (La. App. 2 Cir. 4/12/06), 926 So.2d 827, writ

denied, 06-1470 (La. 12/15/06), 944 So.2d 1283, the defendant was convicted of

armed robbery and adjudicated a second-felony offender. On appeal, he argued that

his seventy-five-year sentence was excessive. The applicable sentencing range for

a second-felony offender convicted of armed robbery was forty-nine and a half

years to one hundred ninety-eight years at hard labor without benefits. The trial

court found that there was an undue risk that the defendant would commit another

crime. The court also observed that the defendant was in need of correctional

treatment and that any lesser sentence would deprecate the seriousness of his

crime. The court commented that the defendant showed no remorse for his

conduct. The court took into consideration the victim’s statement and concluded

that this violent offense against the victim caused serious emotional trauma for her

and her family. The second circuit found that the sentence was not excessive. Id. at

830.

In State v. Gipson, 37,132 (La. App. 2 Cir. 6/25/03), 850 So.2d 973, 980,

writ denied, 03-2238 (La. 1/30/04), 865 So.2d 75, the defendant, as a second-

23-KA-558 23

felony offender, faced an enhanced sentencing range for his armed robbery

conviction of forty-nine and a half years to one hundred ninety-eight years at hard

labor without benefits. The trial court sentenced the defendant to seventy-five

years at hard labor without benefits. The defendant was actually a third-felony

offender with two previous, multiple-count armed robbery convictions. The trial

court stated that the defendant needed correctional treatment and that a lesser

sentence would deprecate the seriousness of the offense. The trial court also found

aggravating circumstances such as the fact that the defendant used a dangerous

weapon during the commission of the crime, he used threats of or actual violence

during the commission of the crime, and he made threats on the lives of the

victims. The appellate court concluded that the record supported the sentence. Id.

at 981.

In State v. Roshell, 42,398 (La. App. 2 Cir. 9/26/07), 966 So.2d 770, the

defendant was sentenced to eighty years imprisonment as a second-felony offender

after being convicted of armed robbery. The second circuit upheld the sentence. In

State v. Bruce, 10-121 (La. App. 5 Cir. 11/9/10), 54 So.3d 87, writ denied, 10-2756

(La. 4/29/11), 62 So.3d 109, the defendant was convicted of armed robbery and

adjudicated a second-felony offender. The defendant’s prior offenses included a

felony conviction for simple burglary in 2007, two simple robbery convictions in

1989 in which he robbed the same victim on two separate occasions, and another

conviction for burglary of an inhabited dwelling. This Court upheld his enhanced

sentence of one hundred years imprisonment. Id. at 98. See also State v. Leday, 11-

1022 (La. App. 5 Cir. 6/28/12), 97 So.3d 501, writ denied, 12-1765 (La. 3/1/13),

108 So.3d 788, where this Court found that a one-hundred-year-sentence for armed

robbery as a second-felony offender was not excessive, especially in consideration

of the fact that the defendant placed the victim at risk of death or great bodily harm

when he held a knife to the victim’s neck.

23-KA-558 24

Considering the nature of the crime, the nature and background of the

offender, and the sentences imposed for similar crimes by this Court and other

courts, we cannot find that the enhanced sentence imposed was unconstitutionally

excessive. Also, Defendant’s enhanced sentence of seventy years was just over a

third of the longest sentence that could have been imposed. Additionally, while

Defendant mentions that the judge did not order a PSI, the law does not provide an

absolute right to a PSI report. Rather, a PSI report is an aid to the trial court and is

ordered at its discretion. See La. C.Cr.P. art. 875; Ervin, 370 So.3d at 1247.

Further, while co-defendants convicted of the same crime need not be

sentenced equally, even where the co-defendants come from similar backgrounds

and might be similar in other respects, disparity of sentences is another factor to be

weighed by this Court in assessing an excessiveness claim. See State v. Smith, 433

So.2d 688, 698 (La. 1983). Here, the record is unclear, but according to the State’s

brief and the district court, Jhon had no prior convictions. Also, Jhon pled guilty,

while Defendant proceeded to trial. Therefore, Defendant’s argument regarding the

disparity in Jhon’s and Defendant’s sentences lacks merit – it is clear from the

record that the district court was disturbed by the details of what Connor endured

during those early morning hours of November 15, 2019. Further, there is no

requirement that co-defendants be sentenced equally. State v. Napoleon, 01-1222

(La. App. 5 Cir. 2/26/02), 811 So.2d 980, 984.

Finally, Defendant, citing State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d

845, argues that he received ineffective assistance of counsel during sentencing

because his counsel failed to provide evidence of mitigating factors in his case.

Defense counsel did not file a sentencing memorandum, call any witnesses at

sentencing, or present arguments at the sentencing hearing. 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. Gatson, 334

23-KA-558 25

So.3d at 1039. To prove ineffective assistance of counsel, a defendant must satisfy

the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). State ex rel. Stevenson v. Hooper, 21-692, 2022 WL

189730 (La. App. 5 Cir. 1/20/22), writ denied, 22-370 (La. 5/24/22), 338 So.3d

1193. Under the Strickland test, the defendant must show: (1) that counsel’s

performance was deficient, that is, that the performance fell below an objective

standard of reasonableness under prevailing professional norms; and (2) that the

deficient performance prejudiced the defense. Fisher v. State, 21-718, 2022 WL

98173 (La. App. 5 Cir. 1/10/22), writ denied, 22-246 (La. 2/7/23), 354 So.3d 671.

An error is considered prejudicial if it was so serious as to deprive the defendant of

a fair trial, or “a trial whose result is reliable.” State v. Robinson, 23-277 (La. App.

5 Cir. 6/28/23), 368 So.3d 737, 742, writ denied, 23-1042 (La. 12/5/23), 373 So.3d

979. To prove prejudice, the defendant must demonstrate that, but for counsel’s

unprofessional conduct, the outcome of the trial would have been different. Id.

Generally, an ineffective assistance of counsel claim is most appropriately

addressed through an application for post-conviction relief filed in the district

court, where a full evidentiary hearing can be conducted, if necessary, rather than

by direct appeal. State v. Bethune, 21-25 (La. App. 5 Cir. 11/10/21), 330 So.3d

1236, 1246. However, when the record contains sufficient evidence to rule on the

merits of the claim and the issue is properly raised in an assignment of error on

appeal, it may be addressed in the interest of judicial economy. Id.

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. Allen, 03-1205 (La. App. 5 Cir.

2/23/04), 868 So.2d 877, 879. Defendant argues that the following mitigating

factors existed but were not presented at sentencing: Defendant’s past criminal

history is non-violent and related to past substance abuse struggles; he is from a

23-KA-558 26

supportive family; his parents were married for thirty-five years; he was married

with two children; he was an honor graduate from the Youth Challenge Program;

and he was employed as a plumber and logger before his arrest.

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 when imposing a sentence. State v. McMillan, 23-317 (La. App. 5 Cir.

12/27/23), 379 So.3d 788, 802. The issue on appeal is whether the trial court

abused its discretion, not whether another sentence might have been more

appropriate. Id. The review of sentences under La. Const. art. 1, § 20 does not

provide an appellate court with a vehicle for substituting its judgment for that of a

trial judge as to what punishment is most appropriate in a given case. Corea-

Calero, 355 So.3d at 701. While in the instant case the predicate offense was non-

violent, the instant offense is categorized as a crime of violence. In light of the

prior analysis regarding Defendant’s sentence and the factors the district court

considered before sentencing client, we find that Defendant has failed to

demonstrate a reasonable probability that his sentence would have been different

had trial counsel presented the mitigatory factors presented on appeal, considering

that he received a sentence of only seventy years when he faced a maximum

sentence of one hundred ninety-eight years. Accordingly, we find that the

ineffective assistance of counsel claim is without merit.

ERRORS PATENT

The record was reviewed for errors patent according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990).

The sentencing minute entries for January 27, 2023 and the September 12,

2023 state that “the Court informed the Defendant he has … two (2) years after

judgment of conviction and sentence has become final to seek post-conviction

23-KA-558 27

relief.” However, the sentencing hearings’ transcripts do not reflect that the court

advised Defendant of the time limits for applying for post-conviction relief. The

transcript prevails where there is an inconsistency between the minute entry and

the transcript. State v. Mejia, 23-161 (La. App. 5 Cir. 11/29/23), 377 So.3d 860,

892, writ denied, 23-1722 (La. 5/29/24), 385 So.3d 705 (citing State v. Lynch, 441

So.2d 732, 734 (La. 1983)).

If a trial court fails to advise, or provides an incomplete advisal, the

appellate court may correct this error by informing the defendant of the applicable

prescriptive period for post-conviction relief under La. C.Cr.P. art. 930.8 by means

of its opinion. State v. Becnel, 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017,

1022. Accordingly, the Court advises Defendant that no application for post-

conviction relief, including applications which seek an out-of-time appeal, shall be

considered if it is filed more than two years after the judgment of conviction and

sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. Id.;

See State v. Key, 23-167 (La. App. 5 Cir. 12/27/23), 379 So.3d 96, 127.

DECREE

Considering the foregoing, Defendant’s conviction for armed robbery in

violation of La. R.S. 14:64 and enhanced sentence of seventy years imprisonment

without the benefit of parole, probation, or suspension of sentence are affirmed.

AFFIRMED

23-KA-558 28

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 28, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-558
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) DARREN A. ALLEMAND (APPELLEE) MONIQUE D. NOLAN (APPELLEE)
THOMAS J. BUTLER (APPELLEE) JANE C. HOGAN (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
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ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
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