State of Louisiana v. Brian Keith Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-806

STATE OF LOUISIANA

VERSUS

BRIAN KEITH THOMAS

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 77,251
HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE

************

PHYLLIS M. KEATY
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS.

Carey J. Ellis, III
Louisiana Appellate Project
Post Office Box 719
Rayville, Louisiana 71269
(318) 728-2043
Counsel for Defendant/Appellant:
Brian Keith Thomas

Trent Brignac
District Attorney
Julhelene E. Jackson
Assistant District Attorney
Post Office Box 780
Ville Platte, Louisiana 70586
(337) 363-3438
Counsel for:
State of Louisiana

KEATY, Judge.

Defendant, Brian Keith Thomas, appeals his conviction and sentence for

attempted second degree murder, alleging insufficiency of the evidence and that his

forty-year sentence is excessive. For the following reasons, we affirm Defendant’s

conviction and sentence with instructions.

FACTS

The victim, T. C. Charles, was shot on two separate occasions on September 2,

2008, in Ville Platte following Hurricane Gustav. He suffered a flesh wound to his

leg early in the day during an argument between he and Kajikianoki Deville. Later

that evening, he was shot twice in the face. The charges against Defendant herein

concern the second, more serious, shooting.

A call came over the police radio involving shots fired in the area of Peach

Street at approximately 10:00 p.m. on September 2, 2008. When Officer Joseph Tate,

a patrolman with the Ville Platte Police Department, got to the area, he saw

Defendant sitting on the porch of Elmond Gallow’s home on the corner of Peach

Street and Alton Locks. He then noticed Charles walking in the street; he was

covered in blood and in critical condition, having been shot in the face twice.

Charles’s tongue had almost been severed as a result of his injuries; however,

Officer Tate could understand Charles when he spoke. When Officer Tate asked

Charles what happened, Charles stated that he had been shot by “Brian Keith

Thomas” and pointed to Defendant. Officer Tate did not see Defendant with a gun.

Former Ville Platte Police Department Officers, Ervin Pitre, II, and Willis

Thomas, also responded to the shots-fired call. Charles informed Officer Thomas

several times that “Brian Keith” had shot him. Officer Thomas testified that he could

1

hear Charles clearly. Officer Pitre asked Charles what happened, and Charles

repeatedly said that “Brian Keith” shot him. Officer Pitre testified that at 5:00 p.m.

earlier that same day, he investigated an incident in which Charles was shot in the leg

by Deville on Blake Street, about one block away from where Charles was found

injured that evening.

Ville Platte Police Officer Rodriquez Soileau also responded to the call.

Defendant’s car was parked at Gallow’s home on the corner of Alton Locks and

Peach Street. Charles was leaning over the hood of Officer Tate’s car bleeding

profusely from his face. When asked who shot him, Charles said “B.K.,” which

Officer Soileau knew to be Defendant’s nickname.

Officer Soileau testified that after Charles left by ambulance, police surrounded

the Gallow home and ordered its occupants to step outside. Gallow and two juvenile

females exited the home; however, Defendant refused. Officer Soileau entered the

home and found Defendant sitting on a couch. It had been raining, and Defendant

was very wet. Officer Soileau noticed that the cover to the attic was not securely in

place. Another officer went up into the attic and found a gun, but he was told not to

touch it and to leave it for the detectives to process later. A BB gun and a bag of

various bullets were also found inside the home. Officer Soileau did not see Deville

at Gallow’s home during his investigation.

Ville Platte Police Officer Nathaniel Savoy also appeared on the scene where

he found Charles lying on the ground next to Officer Tate’s vehicle surrounded by

several officers. The officers told him that Charles said “Brian Keith” had shot him.

At that time, Defendant was standing on Gallow’s porch, approximately a half block

away. Once officers headed toward the house, Defendant went inside. As the police

2

approached the home, Gallow exited and was taken into custody. Police found a BB

gun lying on the couch where Defendant was sitting, a .22 rifle in a bedroom, and a

handgun in the attic. The cover to the attic was directly above the couch. The

handgun found in the attic was wet and covered in wood shavings.

Steven Manterez, a police officer in Missouri and member of the National

Guard, testified that he was in Ville Platte on September 2, 2008, as part of hurricane

relief efforts. He was riding with Officer Savoy that night. When they arrived at the

scene of the shooting, Manterez thought that Charles was dying, so he wanted to get

a dying declaration from him. Several officers kept asking Charles who shot him.

Although Charles’s speech was slurred, Manterez heard Charles say that “Keith

Thomas” shot him. Thereafter, Manterez, along with other police officers and

guardsmen, approached the home where Defendant was reported to be and set up a

perimeter. During a sweep of the home’s interior, a pistol was found in the attic.

Charles testified that he and Defendant referred to each other as “brother-in-

law” because Defendant had children with Charles’s sister. He stated that although

he considered Defendant his friend, they sometimes fought because Defendant was

“always beating on” his sister.

Charles initially testified about the first gunshot wound that he suffered on

September 2, 2008. Defendant and Deville had come to Charles’s home and begged

him to go with them to Defendant’s mother’s home. Charles testified that he and

Deville got into an argument, and Deville shot him in the leg. Brandon Freeman was

present at that time.

Later that day, Charles was at his cousin’s home when someone knocked on the

door and said Defendant wanted to see him. He met Defendant, and the two started

3

talking on the sidewalk. Defendant asked if Charles would ride with him. Charles

agreed and asked Defendant where Deville was. Although Defendant told Charles

that Deville was not with him, Deville soon appeared with a gun in his hand and

forced him into Defendant’s car. Charles testified that Deville and Defendant both

had guns when they brought him to Gallow’s house.

Defendant parked his car, and the group got out. Charles testified that a bullet

then came from nowhere, but it had to have been Deville that shot him because

Deville was so close to him. Charles subsequently asked Defendant to help him, but

Defendant then shot him in the face. After he was shot the second time, Charles fell

down, and Defendant and Deville started dragging him, but ran when they saw the

police approaching. Charles then went toward the lights he saw and heard Defendant

holler, “he’s gone [sic] get away, we’ve got to finish killing him, he’s gone [sic] tell

us on [sic] man.” Charles was found by police and asked who shot him. He told the

police that Defendant shot him and pointed to where Defendant was in the yard.

Charles testified that he did not mention Deville because Defendant shot him last, and

he saw Defendant shoot him. Charles further testified that although Freeman was

charged as a result of the incident, Freeman had nothing to do with the shooting at

Gallow’s house.1 Charles testified that he was drinking on the date of the offense, but

he had not used any drugs.

Elmond Gallow testified that his home was located at the corner of Peach Street

and Alton Locks and that he was home the evening of September 2, 2008. He was

playing dominos with his cousin and her friend when Defendant drove up. He

subsequently heard two gunshots. He walked outside and saw his friend, Deville,

1
Freeman testified that he was arrested on charges of attempted second degree murder as a
result of the shooting outside Gallow’s home, but nothing ever came of those charges.

4

who did not have a gun. He asked Deville what happened, and Deville said

Defendant “just shot that boy.” Gallow saw a man lying on the ground “full of blood”

near the driver’s side of Defendant’s car. The man, who had been shot in the face, got

up, walked toward the street, and attempted to flag down a truck. As the man was

heading toward the street, Defendant “went back at him,” and it appeared that

Defendant, who had a black handgun, was going to shoot the man again.

Gallow testified that police soon arrived, and he and Defendant walked onto

the porch of his home. As police approached, Defendant went inside. Defendant was

wet and muddy. Deville did not enter the home. Gallow did not see a gun in

Defendant’s hand when he entered the home, but he did not know whether Defendant

had a gun inside his home because he was outside being arrested. Gallow did not see

Defendant put anything in the attic, and he had not recently gone into the attic.

Gallow testified that the gun in the attic was not his; however, he did have a .22 rifle,

and he had put a silver pistol on top of the refrigerator when his cousin and her friend

were at his home.

Gallow explained that he did not initially give as much detail to police as he

did in court because he did not want to get involved. For example, in a statement he

gave on September 8, 2008, he did not say that Defendant had a gun. Gallow testified

that he was a convicted felon, having been convicted of aggravated battery.

Jasmine Rose and Quintina Larnette both testified that they were with Gallow

in his kitchen playing dominos and smoking marijuana on September 2, 2008, when

they heard two gunshots. Gallow got his silver gun from the top of the refrigerator

and went outside to see what happened. When Gallow returned, he told them that

5

Defendant had shot Charles. A few minutes later, Defendant entered the house with

a gun in his hand. Neither of them saw Defendant put anything in the attic.

Rose and Larnette admitted giving slightly different versions of the incident

when questioned by police on several occasions after the shootings; however, both

claimed to have been threatened by Defendant and his girlfriend shortly after the

incident.

Deville first testified regarding the shooting incident. He had gone to the store

with Defendant and Freeman before going to the home of Defendant’s mother. While

there, Deville saw Charles in an alley. An argument ensued and Deville grabbed a

gun and shot at the ground toward Charles’s feet. Charles ran away, and Deville left.

He later learned that Charles had been grazed on the leg by a bullet. Deville testified

that the black gun he used to shoot toward Charles belonged to Defendant and that

he returned the gun to Defendant later that day. Defendant told Deville that he was

tired of Charles and was going “to get him.”

That evening, Deville saw Defendant and got a ride from him. Charles was in

the car with Defendant. Deville testified that he and Charles apologized to each other

for the events that had occurred earlier that day. Deville asked Defendant to take him

to Gallow’s home. After they pulled up to Gallow’s home, Charles asked Defendant

for “a taste”; Deville testified that he guessed Charles was referring to alcohol.

Charles exited Defendant’s car and walked toward the driver’s side, and Deville

walked toward the street. Deville then heard a gunshot and turned around. Defendant

told him, “I dome [sic] checked him.” When Gallow came outside, Deville told him

that Charles had been shot. Defendant then walked up to Charles and shot him again

with a high caliber handgun that Deville knew as belonging to Defendant.

6

After Defendant shot Charles, Defendant ran away and Deville checked on

Charles. Deville tried to help Charles, but saw Defendant coming back so he ran

away. Charles tried to stop a passing truck, but Defendant told the driver not to worry

about Charles because he was drunk.

Deville said that he did not enter Gallow’s home that night. He turned himself

in to the police on September 30, 2008. He testified that he ran because he was

scared of Charles’s brother. Deville denied being involved in the shooting that

occurred outside Gallow’s home. Nevertheless, he admitted that there were charges

pending against him as a result of the incident.2

Travis Allison testified that he had been in jail with Defendant during the year

before trial. According to Allison, Defendant “brag[ged] about everything he did.”

Defendant initially told Allison that Deville shot Charles. However, Defendant later

said that he had shot Charles twice and was trying to kill him. Defendant said he

tricked Charles into getting in his car. Defendant told him that he and Charles were

approached by Barry Vidrine with the Ville Platte City Marshal’s Office. At that

time, Defendant’s gun was in his car. Defendant told Allison that he and Charles then

walked to the car, where Deville had been. During the drive to Gallow’s house,

Deville and Charles supposedly forgave each other. As soon as the group got out of

the car, Defendant shot Charles twice. Charles then got up and eventually collapsed

in the middle of the street. Allison testified that Defendant said Deville did not have

the heart to shoot Charles. Defendant said they went to Gallow’s house because that

was Deville’s hangout spot and Deville had shot Charles earlier in the day; thus, it

would look like Deville shot Charles.

2
Deville was charged with several offenses stemming from both encounters with Charles on
September 2, 2008, but he had not been tried on those charges at the time of this trial.

7

Allison testified that he was not given anything in exchange for his statement.

However, after giving a statement, he asked that his probation be reinstated, and the

request was granted. Allison had three prior criminal convictions involving drugs.

Barry Vidrine was a deputy with the Ville Platte Marshal’s Office. He testified

that while he was investigating an unrelated shooting while off duty on September 2,

2008, he encountered Charles and Defendant sitting in Defendant’s car. They both

got out and spoke to him and then got in the car and left. Vidrine did not suspect that

either Charles or Defendant was armed, and he did not check Defendant’s car for

weapons. Vidrine did not see Deville at that time.

Francis Charles, T. C. Charles’s mother, was questioned about what a social

worker reported from a meeting conducted while her son was in the hospital and

whether she told the social worker that Charles had been shot in the face by the same

person that had shot him earlier that day. Ms. Charles testified that her son was not

able to speak well at the time the social worker visited them and that she was not

present when Charles was shot. She further testified that Charles was shot by two

different men; Deville during the day and Defendant later that night. She admitted,

however, that she was not present at either of the shootings.

Dr. Craig Thompson, who was qualified by the trial court as an expert in

medicine and general surgery, testified that Charles was treated at the hospital at 5:00

p.m. for a gunshot wound to the leg and released. Charles was admitted again at

11:23 p.m. for two gunshot wounds to the face. Dr. Thompson testified that Charles

suffered a gunshot wound to the tongue and the mandible. He stated that Charles’s

bullet wounds were angular and not likely caused by “straight ahead” gunshots.

Charles’s injuries would cause him to have some difficulty speaking, and his speech

8

would be impaired. Dr. Thompson testified that Charles could have initially been

able to communicate after being shot. Dr. Thompson testified that Charles tested

positive for cocaine and benzodiazepines.

The parties entered a stipulation that the crime lab performed ballistic,

fingerprint, and DNA testing of the gun found in Gallow’s attic and that nothing

linked Defendant to the gun.

Shannon Thomas, a Probation and Parole Officer, testified that Defendant had

previously entered a guilty plea to illegal use of a weapon and was sentenced to two

years at hard labor. Defendant was released from custody on February 20, 2000.

PROCEDURAL HISTORY

Defendant was arraigned on October 9, 2008, and entered a plea of not guilty

to attempted second degree murder and convicted felon possessing a firearm or

carrying a concealed weapon. On November 25, 2008, he was charged by bill of

information with second degree murder, in violation of La.R.S. 14:30.1; and

convicted felon possessing a firearm or carrying a concealed weapon, in violation of

La.R.S. 14:95.1. On the same date, an amended bill was filed, amending the charge

of second degree murder to attempted second degree murder, in violation of La.R.S.

14:30.1 and 14:27. A second amended bill was filed on February 2, 2009, deleting

one of two prior offenses used to support the charge of convicted felon possessing a

firearm or carrying a concealed weapon. Defendant entered a plea of not guilty to the

amended bill on February 5, 2009. Defendant was rearraigned on April 9, 2009, and

entered a plea of not guilty. A third amended bill was filed on November 20, 2009,

changing the date of the offenses from August 2, 2008, to September 2, 2008.

9

Jury selection commenced on November 30, 2009. By unanimous verdict, the

jury found Defendant guilty as charged on both counts on December 4, 2009.

Defendant was sentenced on March 11, 2010, to forty years at hard labor, without

benefit of probation or suspension of sentence, for attempted second degree murder.

The attempted second-degree murder sentence was to run concurrently with the

sentence imposed for convicted felon possessing a firearm or carrying a concealed

weapon and consecutively with any sentence received, particularly the sentence in

docket number 75061-FB. Defendant was sentenced to twelve years at hard labor for

his conviction on the charge of convicted felon possessing a firearm or carrying a

concealed weapon and to pay a fine of $2,500. The fine was suspended.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that there was insufficient

evidence for his conviction of attempted second degree murder.

When considering a claim of insufficient evidence, a reviewing
court must determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). It is not the function of an appellate court to assess credibility
or reweigh the evidence. State v. Stowe, 93-2020 (La. 4/11/94); 635
So.2d 168, 171.

State v. Smith, 94-3116, p. 2 (La. 10/16/95), 661 So.2d 442, 443.

“The essential elements of the crime of attempted second degree murder are a

specific intent to kill the victim and the commission of an overt act that tends toward

the accomplishment of the victim’s death. La.R.S. 14:30.1; State v. Hollingsworth,

42,317 (La.App. 2 Cir. 8/15/07), 962 So.2d 1183.” State v. George, 09-143, pp. 4-5

(La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618.

10

In brief to this court, Defendant contends that although most of the police

officers that testified at trial stated that Charles said Defendant shot him, Charles

testified that he was first shot in the face by Deville and then by Defendant.

Defendant then notes that, other than Deville, Charles was the only witness to testify

that Defendant shot him. Defendant also notes that a drug screen indicated that

Charles tested positive for cocaine and sedatives. Defendant points to

Dr. Thompson’s testimony that after the first bullet to the face, a second shot would

likely not be straight. Defendant avers that after a gunshot wound to the face at close

range, a person could not be sure of who fired the second shot, especially if that

person was on drugs, like Charles was proven to be shortly after the second shooting.

Defendant contends that the testimony of Deville and Allison was self-serving.

Defendant notes that he did not run, but was sitting on the porch of Gallow’s home

when police found Charles. Defendant argues that the conflicting testimony cannot

be reconciled with the physical evidence. Defendant contends that Deville held a

grudge against Charles and had shot him earlier the same day. Although Deville was

not found in Gallow’s home, both Rose and Larnette placed him inside the house

shortly before police arrived. Additionally, Deville fled and was not arrested until

approximately one month after the offense. Further, neither Rose nor Larnette saw

Defendant put anything in the attic, and they observed him from the time he entered

the home until he was arrested. Moreover, both Rose and Larnette testified that

Defendant had a gun. However, they said he placed it in the couch, and that is where

a BB gun was found.

Defendant notes that none of the police officers testified that Charles said

Deville shot him. However, at trial, Charles said Deville shot him and then

11

Defendant shot him. Further, Charles had previously told police that Brandon

Freeman shot him. Defendant admits that while the credibility of a witness is not

ordinarily reviewed, testimony can occasionally be so inconsistent and incredible as

to warrant review and acquittal. Defendant contends the evidence and the testimony

is so contradictory and conflicting that his conviction should be vacated.

The State counters that ample evidence was produced to support Defendant’s

conviction for attempted second degree murder. Charles testified that Defendant shot

him. Deville testified that Defendant shot Charles. Additionally, Gallow testified

that Deville said Defendant “shot that boy,” and Defendant had a handgun. Several

police officers testified that when Charles was found, he said that “Brian Keith

Thomas,” “Brian Keith,” “B.K.,” and/or “Keith Thomas” shot him. Furthermore,

Allison testified that while in jail, Defendant stated that he shot Charles. With regard

to Defendant’s argument that his not having fled the scene supports his claim of

innocence, the State submits that Defendant also failed to offer any assistance to

Charles after he had been shot in the face.

The State contends that despite the inconsistencies in their testimonies and/or

statements, Gallow, Rose, and Larnette all stated that they saw Defendant with a gun

in his hand after Charles was shot in the face. Further, the State submits that despite

his having testified that Deville shot him in the face first, Charles never wavered in

his testimony that Defendant shot him in the face at least once.

Based on the testimony offered at trial, the jury chose to believe that Defendant

shot Charles. It is not this court’s function “to assess credibility or reweigh the

evidence.” Smith, 661 So.2d at 443. Accordingly, we find that the State proved

beyond a reasonable doubt that Defendant attempted to commit the second degree

12

murder of Charles when he shot him in the face, as “‘[d]eliberately pointing and firing

a deadly weapon at close range are circumstances which will support a finding of

specific intent to kill.’ State v. Brown, 03-897, p. 22 (La.4/12/05), 907 So.2d 1, 18.”

State v. Roberts, 06-765, p. 5 (La.App. 3 Cir. 1/17/07), 947 So.2d 208, 213, writ

denied, 07-362 (La. 10/5/07), 964 So.2d 938.

Defendant’s first assignment of error lacks merit.

Excessiveness of Sentence

In his second assignment of error, Defendant contends the trial court imposed

an excessive sentence of forty years, to run consecutively to any other sentence. He

asserts that although the trial court stated it had received a presentence investigation

report (PSI), no factors were given that justified the sentence imposed. Instead, the

trial court merely stated that Defendant had a long criminal history. Defendant

additionally contends the record does not indicate that the trial court took into

consideration any aggravating and mitigating circumstances set forth in La.Code

Crim.P. art. 894.1. Further, there is nothing in the record to show the trial court

particularized the sentence. Thus, Defendant submits that his forty-year sentence, to

run consecutively to any other sentence, is excessive.

Although Defendant failed to object to his sentence at the sentencing hearing

and failed to file a motion to reconsider sentence, this court has reviewed claims of

excessiveness in similar instances. See State v. Johnlouis, 09-235 (La.App. 3 Cir.

11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied,

___ U.S. ___, 131 S.Ct. 932 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir.

5/6/09), 18 So.3d 127. Accordingly, we will review Defendant’s claim as a bare

claim of excessiveness.

13

This court discussed the standard of review applicable to claims of

excessiveness of sentence in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07),

968 So.2d 247, 250, as follows:

A sentence which falls within the statutory limits
may be excessive under certain circumstances. To
constitute an excessive sentence, this Court must find that
the penalty is so grossly disproportionate to the severity of
the crime as to shock our sense of justice or that the
sentence makes no reasonable contribution to acceptable
penal goals and[,] therefore, is nothing more than the
needless imposition of pain and suffering. The trial judge
has broad discretion, and a reviewing court may not set
sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158,
1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d
786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations
omitted), this court discussed the factors it would consider in order to
determine whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes
no meaningful contribution to acceptable penal goals, an
appellate court may consider several factors including the
nature of the offense, the circumstances of the offender, the
legislative purpose behind the punishment and a
comparison of the sentences imposed for similar crimes.
While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” Additionally, it
is within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.”

Defendant was convicted of attempted second degree murder, which is

punishable by ten to fifty years at hard labor, without benefit of probation, parole, or

suspension of sentence. La.R.S. 14:27; La.R.S. 14:30.1. Defendant was sentenced

to serve forty years at hard labor, without benefit of probation or suspension of

sentence.

14

At the sentencing hearing, the trial court stated that it had gone through the PSI

“quite thoroughly,” and that Defendant had a long criminal record. The PSI indicates

that Defendant is classified as a fourth felony offender, having been convicted of “use

or possession of a firearm and bodily injury, and 2 felony convictions for drug

crimes.” The PSI further indicates that Defendant had pending charges for second

degree murder and aggravated/simple escape at the time the PSI was prepared.

In State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, writ

denied, 03-411 (La. 10/10/03), 855 So.2d 327, the defendant was convicted of

attempted second degree murder and sentenced to fifty years, without benefit of

probation, parole, or suspension of sentence. On appeal, the defendant asserted his

sentence was excessive. After reviewing several cases in which the first, third, and

fourth circuits had affirmed sentences of fifty years at hard labor for defendants

convicted of attempted second degree murder, the fifth circuit affirmed, noting that,

in the matter before it:

[T]he defendant used a firearm to shoot the victim at relatively close
range, which, in the present case, resulted in a bullet-hole through the
victim’s tongue and a bullet lodged in his neck. . . .

While we note that the trial judge in the instant case did not give
any reasons for sentencing, we do not find that he abused his wide
discretion in determining a sentence. Furthermore, the record supports
the imposed sentence of 50 years.

Id. at 608.

Based on the cases cited herein and Defendant’s classification as a fourth

felony offender, we conclude that Defendant’s sentence for attempted second degree

murder is not excessive.

15

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we have found

two possible errors patent.

Parole Eligibility

Defendant was sentenced as follows:

On the Possession of a Firearm by a Convicted Felon, I’m going
to sentence you to 12 years at hard labor with the Department of
Corrections; I’m going to impose with that a $2,500.00 fine which I will
suspend.

On the Attempted Murder, I’m going to sentence you to 40 years
at hard labor with the Department of Corrections. The 12 years on the
Possession of a Firearm by a Convicted Felon will run concurrently with
this, but I’m going to order that the 40 years, that this sentence run
consecutive to any time that you have received, particularly in docket
number 75,061-FB.

I’ve considered all of the sentencing guidelines and also this
sentence will be served without benefit of probation or suspension of
sentence.

The court minutes reflect the sentences as imposed, except that the minutes

indicate that parole eligibility was denied along with the denial of probation and

suspension of sentence. However, “when the minutes and the transcript conflict, the

transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, 369, writ denied, 00-2051 (La. 9/21/10), 797 So.2d 62.

Both offenses require imposition of a sentence that is without benefit of parole,

probation, or suspension of sentence. La.R.S. 14:95.1, 14:27 and 14:30.1. In State

v. Thibodeaux, 05-680, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1093, 1094-95, in

its error patent review, this court noted, in pertinent part:

When the trial court is silent as to the required term of parole
ineligibility, La.R.S. 15:301.1 obviates the need to correct a sentence.
See State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216,
writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035.

16

In State v. King, 05-553 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, writ denied,

06-1084 (La. 11/9/06), 941 So.2d 36, the defendant was found guilty of one count of

armed robbery; he stipulated to being a second felony offender and was sentenced to

forty-nine and one-half years imprisonment. On appeal, the court found the sentence

imposed was illegally lenient because the trial court imposed the enhanced sentence

“‘without the benefit of probation or suspension of sentence.’” Id. at 1215. The court

explained, in pertinent part:

However, LSA-R.S. 14:64 B, the underlying statute, mandates that the
sentence be served with benefit of parole, probation, or suspension of
sentence. The restrictions on parole eligibility imposed on habitual
offender sentences under LSA-R.S. 15:529.1 “are those called for in the
reference statute.” State v. Esteen, 01-879 (La.App. 5 Cir.5/15/02), 821
So.2d 60, 79, writ denied, 2002-1540 (La.12/13/02), 831 So.2d 983
citing State v. Bruins, 407 So.2d 685, 687 (La.1981). Nevertheless, this
error need not be corrected on remand because under State v. Williams,
00-1725 (La.11/29/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A),
the “without benefits” provision is self-activating. Esteen, 821 So.2d at
78.

Id. at 1215.

In State v. Wilturner, 03-719 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, the trial

court failed to impose the defendant’s sentence for the conviction of sexual battery

without the benefits of parole, probation, or suspension of sentence which was

required under La.R.S. 14:43.1(C). This court found that pursuant to Williams, 800

So.2d 790, the trial court’s failure to specify that the sentence was subject to the

statutory restrictions did not require remand for correction; instead, the sentence was

deemed to include those restrictions by operation of law. See also State v. Darbonne,

01-39 (La.App. 3 Cir. 6/6/01), 787 So.2d 576, writ denied, 02-533 (La. 1/31/03), 836

So.2d 64; State v. Colar, 04-1003 (La.App. 3 Cir. 2/2/05), 893 So.2d 152.

In the instant case, we read the sentencing transcript to provide that the

restriction on probation and suspension of sentence applied only to the second

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sentence imposed, the forty-year sentence for attempted second degree murder.

Because the trial court was completely silent regarding the benefit restrictions on the

twelve-year sentence for possession of a firearm by a convicted felon, that sentence

is deemed to contain the required benefits restriction by operation of law. See La.R.S.

15:301.1. Further, as to trial court’s silence regarding parole eligibility with regard

to Defendant’s attempted second degree murder sentence, that part of the “without

benefits” provision is also self-activating. Id.

Post-conviction relief notice

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant

has two years after the conviction and sentence become final to seek post-conviction

relief. The minutes of sentencing reflect that the trial court “advised the defendant

of his two-year prescriptive period for filing post conviction relief which begins to

run today or from time of finality of Judgment.” The sentencing transcript indicates

the trial court stated, “there is a two year prescriptive period for you to apply for post

conviction relief.” As stated previously, a conflict in the minutes and transcript is

resolved in favor of the transcript. See Wommack, 770 So.2d 365. We conclude that

the information provided by the trial court was insufficient.

Accordingly, the trial court is directed to inform Defendant of the provisions

of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten

days of the rendition of this opinion and to file written proof in the record that

Defendant received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903

So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

DECREE

Defendant’s conviction and sentence for attempted second degree murder are

affirmed. The trial court is directed to inform Defendant of the provisions of La.Code

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Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days

of the rendition of this opinion and to file written proof in the record that Defendant

received the notice.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS.

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