State of Louisiana v. Joshua J. Boutte

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 24-324

STATE OF LOUISIANA

VERSUS

JOSHUA J. BOUTTE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, DOCKET NO. 2021-CR-620
HONORABLE ROGER P. HAMILTON, Jr., DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED.
REMANDED WITH INSTRUCTIONS.

Ryan A. Harris
Assistant Public Defender
16th Judicial District Public Defender
301 East Saint Peter Street, Suite 101
New Iberia, Louisiana 70560
(337) 365-4006
COUNSEL FOR DEFENDANT/APPELLANT:
Joshua J. Boutte

M. Bofill Duhé
District Attorney, 16th Judicial District
W. Claire Howington
Assistant District Attorney
300 Iberia Street, Suite 200
New Iberia, Louisiana 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

PERRY, Judge.

Defendant appeals his sentence given after entering an open-ended guilty plea

to the charge of aggravated assault with a firearm, a violation of La.R.S. 14:37.4.

For the following reasons, we affirm but remand with instructions.

FACTS AND PROCEDURAL HISTORY

In the early evening of April 20, 2021, deputies from the Iberia Parish

Sheriff’s Office were called to the home of Kenneth and Karen Boudreaux. Mr.

Boudreaux stated that they were taking care of K.B., Defendant’s four-year-old

daughter, when Defendant, Joshua J. Boutte, came for supervised visitation with her.

At some point during the visitation, Defendant, over the objection of Mr. and Mrs.

Boudreaux, grabbed K.B. and ran to his car with her in his arms. When Mr.

Boudreaux blocked him, Defendant started punching him in the mouth, causing a

laceration that required stitches. After Mr. Boudreaux was able to forcefully take

K.B. from Defendant’s arms, Defendant removed a Ruger .45 caliber handgun from

his waistband and pointed it in the air. As Mrs. Boudreaux ran away with K.B., Mr.

Boudreaux wrestled the gun away from Defendant, and it fell to the ground.

Afterwards, when Defendant fled the scene in his vehicle, Mr. and Mrs. Boudreaux

called the Iberia Parish Sheriff’s Office. The officers interviewed Mr. and Mrs.

Boudreaux, found the discarded weapon on the ground, and obtained a description

of Defendant’s vehicle.

At 9:59 a.m. on the following day, Deputy Matthew McFarland stopped

Defendant’s vehicle on U.S. Highway 90 and took Defendant into custody. Deputy

McFarland testified that when he apprehended Defendant, he found the following

items in Defendant’s vehicle: an AK47 pistol grip with a loaded banana clip; a billy

club; a loaded drum-type magazine; brass knuckles; and a handcuff key. While

Defendant was handcuffed at the Iberia Parish Jail awaiting incarceration, he

attempted to escape, but Deputy McFarland was able to apprehend him.

On June 23, 2021, the State charged Defendant by bill of information with

attempted aggravated kidnapping of a child, a violation of La.R.S. 14:27 and

14:44.2(A); aggravated assault with a firearm, a violation of La.R.S. 14:37.4; illegal

possession of stolen firearms, a violation of La.R.S. 14:69.1(A); simple battery of

the infirm, a violation of La.R.S. 14:35.2; and simple escape, a violation of La.R.S.

14:110.

Later, on December 15, 2021, the State filed an amended bill of information

charging Defendant with false imprisonment with a dangerous weapon, a violation

of La.R.S. 14:46.1; aggravated assault with a firearm, a violation of La.R.S. 14:37.4;

illegal possession of stolen firearms, a violation of La.R.S. 14:69(1)(A); simple

battery of the infirm, a violation of La.R.S. 14:35.2; and simple escape, a violation

of La.R.S. 14:110.

On April 4, 2023, Defendant entered an open-ended plea agreement where he

pled guilty to the charge of aggravated assault with a firearm. The State then

dismissed the other charges against Defendant.

At the time he entered his guilty plea, Defendant pled to the following facts.

On or about April 20, 2021, Iberia Parish police received a call to an address off

Lake Dauterive Road. On arrival, deputies learned that Defendant had gone to the

residence of Mr. and Mrs. Boudreaux, who were taking care of his daughter. A

physical confrontation broke out between the adults. The confrontation escalated

when Defendant brandished a firearm, causing Mr. and Mrs. Boudreaux to fear for

their lives.

On July 24, 2023, the trial court held its sentencing hearing. After reviewing

Defendant’s presentence investigative report and a printout of Defendant’s criminal
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history,1 the trial court heard testimony from Mr. and Mrs. Boudreaux, Deputy

McFarland, Defendant’s mother, Cathy Disante, and Defendant. Afterwards, the

trial court sentenced Defendant to serve nine years at hard labor, recommended that

he undergo substance abuse programs with the Department of Public Safety because

he tested positive for THC, amphetamines, and methamphetamine when he was

processed at the Iberia Parish jail, and stated Defendant, who had spent

approximately twenty-seven months in jail, was given credit for all time served.

Defendant filed a motion to reconsider sentence, and a hearing took place on

September 7, 2023. Defendant asserted three reasons in support of his motion: first,

the trial court erred in finding aggravating factors which were unsupported by the

evidence presented at sentencing; second, it gave insufficient weight to mitigating

factors; and third, it inappropriately considered charges the State had dismissed. The

trial court denied Defendant’s motion.

On June 25, 2024, Defendant appealed his sentence.

ASSIGNMENTS OF ERROR

1. The trial court erred in considering the aggravating factor listed
in La.Code Crim.P. article 894.1(B)(2) given there was no
evidence presented at the sentencing hearing to support that
finding.

2. The trial court erred in considering the dismissed charge of
La.R.S. 14:44.2 given that Defendant denied the allegation when
questioned by the State.

1
At the beginning of Defendant’s sentencing hearing, the printout of Defendant’s criminal
history was introduced into evidence without objection. The court also had available a presentence
report which provided further information. In addition to the charges outlined in this opinion, the
following items were included in that printout: 10/18/00 (arrest in New Iberia for aggravated
assault; no disposition shown); 1/31/06 (arrest in Orleans Parish for illegal carrying of weapons;
charge nolle prossed); 1/29/09 (arrest in Iberia Parish for speeding); 12/14/09 (arrest in Iberia
Parish for possession of/dealing in firearms with obliterated number/mark; illegal possession of
stolen things; possession of marijuana; and prohibited acts/drug paraphernalia; all charges notte
prossed when a guilty plea was entered to possession of marijuana); 3/15/15 (arrest in St. Martin
Parish for illegal carrying of weapons; prohibited acts/drug paraphernalia; possession of
marijuana; and speeding; pled guilty to possession of drug paraphernalia and served fifteen days
in jail); 1/20/16 (speeding in St. Martin Parish); and 1/22/16 (failure to appear in St. Martin Parish
for a hearing on his possession of a schedule I drug; no disposition shown).

3

3. The trial court erred in failing to consider mitigating factors in its
sentencing.

ERRORS PATENT REVIEW

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals

for errors patent on the face of the record. Our review of the record shows the trial

court did not accurately advise Defendant about the time for filing post conviction

relief. At sentencing, the trial court advised Defendant that he had “two years from

the date your conviction becomes final to file for any post-conviction relief[.]”

According to La.Code Crim.P. art. 930.8(A) (emphasis added), the time for filing

post-conviction relief is “two years after the judgment of conviction and sentence

has become final[.]” Thus, we find the advice given by the trial court at sentencing

was only partially accurate.

In State v. Hudson, 23-760, p. 2 (La. App. 3 Cir. 5/8/24) (unpublished opinion)

(2024 WL 2046021), this court found it was inadequate when the trial court advised

that Hudson had “‘two years from the date this conviction becomes final to file an

application for post-conviction relief.’” See also State v. Wilhite, 55,023, (La.App.

2 Cir. 5/17/23), 361 So.3d 1246, writ denied, 23-847 (La. 3/5/24), 379 So.3d 1271;

State v. Robertson, 53,970 (La.App. 2 Cir. 6/30/21), 322 So.3d 937, 947; and State

v. Simpson, 50,334 (La.App. 2 Cir. 1/13/16), 186 So.3d 195.

Considering this jurisprudence, we respectfully instruct the trial court to

inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to him within ten (10) days of the rendition of this opinion

and to file written proof that Defendant received the correct notice in the record of

the proceedings. State v. Green, 21-14 (La.App. 3 Cir. 10/27/21), 329 So.3d 917,

921.

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DEFENDANT’S ARGUMENT

Defendant’s argument that his sentence of nine years is constitutionally

excessive can be separated into two categories. First, the defendant alleges the trial

court erred in not considering relevant mitigating factors; second, the defendant

alleges the trial court erred in considering irrelevant aggravating factors. According

to Defendant, the irrelevant aggravating factors considered by the trial court were:

1) the finding that Mr. and Mrs. Boudreaux were vulnerable and incapable of

resisting due to advanced age; and 2) the dismissed charge of aggravated kidnapping

of a child, which is a violation of La.R.S. 14:44.2. According to Defendant, the

former should not have been considered because no evidence supported the finding,

and the latter should not have been considered given that Defendant expressly denied

the allegation that he committed attempted aggravated kidnapping. Regarding the

latter, Defendant testified that he never intended to kidnap his daughter; instead, he

asserted that he simply took his daughter to retrieve a stuffed animal from the

vehicle. Thus, he argues that this altercation was premised on a misunderstanding.

STATE’S POSITION

The State contends Defendant’s argument concerns the trial court’s weighing

of the aggravating and mitigating factors in its determination of sentence. It argues

that the record establishes that there was sufficient evidence to support the trial

court’s conclusions and that in reaching its sentencing choice, the trial court

considered the factors enunciated in La.Code Crim.P. art. 894.1. That the trial court

did not place the same weight on Defendant’s mitigating factors as he would like

does not mean the trial court abused its discretion in determining the appropriate

sentence. Nor was it erroneous for the trial court to consider the unadjudicated

conduct, all of which the record supports, as Defendant significantly benefited when

those charges were dismissed as part of his plea agreement.
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Moreover, the State argues Defendant’s sentence is not constitutionally

excessive. The record shows that Defendant had a drug problem and that he tested

positive for amphetamines when he was booked into jail. Furthermore, although he

came to visit his daughter, Defendant tried to take her with him when Mr. and Mrs.

Boudreaux objected. At that point, as Mr. Boudreaux testified, Defendant said that

he was “going to take matters into [his] own hands.” Defendant tried to get his

daughter into his vehicle, but Mr. Boudreaux blocked him with his body. At that

point, Defendant drew a gun and injured Mr. Boudreaux when he struck him with

his fist. Lastly, the State points out that when Defendant was apprehended the next

day, he had a variety of weapons in his vehicle. Thus, the State argues that the trial

court’s sentencing choice was warranted under these circumstances.

ASSIGNMENTS OF ERROR 1–3

In Defendant’s three assignments of error, he essentially asserts his sentence

is excessive. Louisiana courts have provided the following guidelines regarding

excessive sentence review:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review of excessive
sentence claims, stating:

La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or that
the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than
a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124,
writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The
6

relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might
have been more appropriate. State v. Cook, 95-2784 (La.
5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117
S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. 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, a panel of this court observed that:

While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” State v. Batiste,
594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is
within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.” State v. Cook, 95-
2784 (La. 5/31/96); 674 So.2d 957, 958.

State v. Soileau, 13-770, pp. 4–5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005–

06 (alteration in original), writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Here, the penalty for Defendant’s offense, aggravated assault with a firearm,

is a fine of “not more than ten thousand dollars or imprisoned for not more than ten

years, with or without hard labor, or both.” La.R.S. 14:37.4. Even though the trial

court could have also imposed a fine, it rejected that option. Thus, we recognize that

Defendant’s nine-year sentence at hard labor is nearly the maximum term of

incarceration.

At the sentencing hearing, Mr. Boudreaux testified that Defendant was the

husband of his deceased stepdaughter who died four to six months before the

incident at their home. At that time, Mr. Boudreaux and his wife had temporary

custody of K.B. Mrs. Boudreaux explained that it was Defendant’s mother who

legally held temporary custody of their granddaughter, but she would occasionally
7

ask Mr. and Mrs. Boudreaux for help with the child. Defendant had only the right

to supervised visitation, and Mr. and Mrs. Boudreaux did not deprive him of that

right.

On the day of the incident, Defendant wanted to take his daughter outside, but

Mr. and Mrs. Boudreaux said he could not. According to Mr. Boudreaux, Defendant

then grabbed his daughter, saying that he was going to take matters into his own

hands. Mr. Boudreaux followed him outside and prevented Defendant from putting

the child in his car. Defendant punched Mr. Boudreaux several times. “You really

messed up this time,” Defendant said as he reached for what was tucked in his

waistband. Mrs. Boudreaux saw it was a gun and said so to her husband. At that

moment, Mr. Boudreaux grabbed Defendant, threw him onto the hood of the car,

and Mrs. Boudreaux escaped with the child. A portion of this fight was caught on a

Ring camera. This recording was entered into evidence and was played at the

sentencing hearing.

At the sentencing hearing, Mr. Boudreaux testified he was injured from this

altercation and said he was still concerned about the safety of his family, his wife,

and his granddaughter. However, he still wanted Defendant to have a role in the

child’s life but only after Defendant cleaned up his act. Mrs. Boudreaux testified

similarly, saying she also would like Defendant to be involved in the life of their

granddaughter, but she was still afraid of him.

Deputy McFarland testified that he considered Defendant armed and

dangerous because of Defendant’s past interactions with law enforcement. Although

Defendant had been cooperative when he was arrested, when he and Deputy

McFarland reached the jail, Defendant fled and had to be apprehended.

Ms. Disante, Defendant’s mother, also testified. Ms. Disante told the trial

court that Defendant’s wife told her just before her death that Defendant was doing
8

drugs. She further told the court that she realized Defendant had anger issues and

that he really started going downhill after his wife died. It was because of her

observations of Defendant’s behavior that she took steps to remove Defendant’s

daughter from his custody. In addition, Ms. Disante stated that Defendant’s daughter

is grieving for the loss of her mother and her dad as well; because of that Defendant’s

daughter is in counseling at the Healing House in Lafayette. Nevertheless, Ms.

Disante told the court that Defendant speaks by telephone with his daughter every

weekend or whenever she is at her house. She concluded by telling the court that

Defendant and his daughter need to be together some.

During the sentencing hearing, Defendant apologized to Mr. and Mrs.

Boudreaux, his mother, and his daughter. He said he brought a gun to Mr. and Mrs.

Boudreaux’s home without intending to do anything. He admitted that he had tested

positive for THC when he was booked. Also, Defendant claimed that he was not

trying to take his daughter from the house but that he was trying to get a stuffed

animal out of the car for her,2 declaring that the whole ordeal was a misunderstanding

with Mr. and Mrs. Boudreaux.

In imposing its sentence, the trial court began by saying:

The Court has heard the testimony and reviewed the
evidence. I’ve provided a presentencing investigation . . .
Mr. Boutte, [t]his court notes that your charges were an
attempted aggravated kidnapping of a child, illegal
possession of stolen firearms, simple battery of the
infirm[], simple escape, which is all of benefit as part of
this plea agreement.

Additionally, the trial court noted that Defendant was a first-time felony offender.

It also considered the sentencing factors of La.Code Crim.P. art. 894.1, specifically

that Defendant was in need of a custodial environment, that a lesser sentence would

2
The record is void of any evidence that a stuffed animal was found in Defendant’s vehicle
when he was apprehended.
9

deprecate the seriousness of the crime, that his conduct manifested deliberate cruelty

to the victim, that he knew or should have known the victim was vulnerable and

incapable of resistance due to advanced age, that he knowingly created a risk of

death or great harm to more than one person, that he used threats or actual violence,

that he used a dangerous weapon, and that he foreseeably endangered human life.

In his argument to this court, Defendant does not list any mitigating factors

which he thinks the trial court should have considered. Instead, he notes correctly

that the trial court did not specify any particular mitigating factors when it stated its

reasons for its sentence. However, just before the trial court imposed its sentence,

Defendant’s trial counsel presented many mitigating factors for consideration: that

Defendant pled guilty to his crime; that he had no prior criminal history; that he was

under extreme emotional stress at the time of his offense due to the recent death of

his wife; that a lengthy sentence would bring hardship to his family; and that he had

already served twenty-seven months in prison. The trial court also noted it heard the

testimony, reviewed the evidence, and received a pre-sentence investigation report.

Moreover, the trial court stated that it had considered the aggravating and mitigating

circumstances.

Contrary to Defendant’s claim, the State entered an affidavit into evidence

which supported the finding that the victims were vulnerable due to age. The

affidavit stated that Mr. Boudreaux was born on September 1, 1958, and Mrs.

Boudreaux was born on August 29, 1959; thus, at the time of the altercation with

Defendant, Mr. Boudreaux was 62 years of age, and Mrs. Boudreaux was 61 years

of age. In addition to the affidavit and the trial court’s ability to view Mr. and Mrs.

Boudreaux as they testified, the Stated entered a photo of Mr. Boudreaux into

evidence to establish his injuries at Defendant’s hands, and a video recorded from a

Ring camera captured a portion of the crime, which clearly showed the victims as
10

the crime unfolded. This was more than enough for the trial court to judge whether

the victims were vulnerable.

Regarding the reference to the dismissed charge of aggravated kidnapping,

Defendant cites State v. Smith, 431 So.2d 838, 840 (La.App. 2 Cir.), writ denied, 435

So.2d 463 (La.1983), which states in pertinent part:

The contention that the trial judge erroneously considered crimes
for which defendant had not been charged or convicted is also without
merit. In the absence of allegations of mistake or falsehood, evidence
of uncharged offenses is admissible and is a valid factor for
consideration in sentencing. State v. Knapp, 378 So.2d 911 (La.1979);
State v. Carthan, 377 So.2d 308 (La.1979); La.C.Cr.P. Art. 894.1 B(7).
Defendant made no assertion that testimony concerning his
involvement in numerous burglaries (with which he was not charged)
was baseless. Therefore, it was appropriate for the trial judge to take
these offenses into account in the assessment of defendant’s sentence.

Defendant argues that unlike the defendant in Smith, he denied the allegation that he

attempted to kidnap his daughter. Accordingly, he contends that it was inappropriate

for the court to take the dismissed charge into account. Additionally, he notes that

evidence indicated Mr. and Mrs. Boudreaux were not the legal guardians of the child,

which is an element listed in La.R.S. 14:44.2. From this, Defendant concludes the

trial court abused its discretion when it considered the charge, and this led it to

issuance of an excessive sentence.

Our review of the record shows that the attempted aggravated kidnapping

charge was in the original bill of information but not on the amended bill of

information, and when the court mentioned the charge in the quote given above, it

was referencing the original bill of information. Nevertheless, a close reading of the

record suggests the trial court merely referenced the offense when giving a list of

charges that had been dismissed, and it noted Defendant benefited from the plea

bargain, which lessened his maximum sentencing exposure from thirty and one-half

years to ten. Thus, it does not appear the dismissed charge was considered in the

11

formulation of Defendant’s sentence. We next turn our attention to jurisprudence

involving similar sentences for aggravated assault with a firearm.

In State v. Lafleur, 16-467 (La.App. 3 Cir. 1/4/17), 209 So.3d 927, writ denied,

17-808 (La. 1/29/18), 235 So.3d 1104, the defendant approached the victim’s truck

and pointed a rifle at him. The defendant eventually lowered the weapon and walked

away. He was sentenced to the maximum sentence of ten years. On appeal, the

defendant alleged that the trial court neglected to consider his mental illness as a

mitigating factor and that the trial court’s sentence was based upon the defendant’s

poor behavior in court rather than the facts of the offense. This court vacated the

sentence and remanded for resentencing. After considering the defendant’s mental

health, the trial court resentenced him to ten years at hard labor, with three of those

years suspended. The new sentence was affirmed on appeal. State v. Lafleur, 17-

284 (La.App. 3 Cir. 10/4/17), 228 So.3d 1248.

In State v. Brown, 17-124 (La.App. 4 Cir. 12/12/17), 234 So.3d 978, writ

denied, 18-10 (La. 6/15/18), 257 So.3d 678, a check given to the victim by the

defendant bounced. When the victim confronted the defendant, the defendant pulled

a gun on the victim, placed it against his side, and told the victim he had killed two

or three people. The defendant never fired the weapon, and no injuries resulted from

the defendant’s brandishing of the weapon. However, the fourth circuit affirmed the

trial court’s imposition of the maximum fine of $10,000 and the mid-range sentence

of five years at hard labor.

In the present case, Defendant repeatedly punched Mr. Boudreaux, pulled a

firearm from his waistband, and threatened Mr. and Mrs. Boudreaux enough for

them to have genuine fear for their lives.3 Although this was his first felony offense,

3
Accompanying Defendant’s prison sentence, the trial court issued Uniform Abuse
Prevention Orders protecting Mr. and Mrs. Boudreaux. These orders are effective from the date
of Defendant’s sentencing to December 31, 2030.
12

the record shows that Defendant had past dealings with the police concerning drug

use and illegal possession of stolen property. And in the present case, Defendant

fled from the jail during booking.

Ultimately, what matters is that the record reflects an adequate factual basis

for the sentence imposed and that the sentence neither shocks our sense of justice

nor imposes only needless pain and suffering. State v. Lanclos, 419 So.2d 475

(La.1982); State v. Campbell, 404 So.2d 1205 (La.1981). Here, the record reflects

such a factual basis, and when considering Defendant’s crime, his background, and

the sentences imposed in similar cases, his sentence of nine years at hard labor does

not shock our sense of justice. Thus, we find no merit to Defendant’s contention

that his sentence was constitutionally excessive.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed. Additionally,

the trial court is directed to inform Defendant, Joshua J. Boutte, of the provisions of

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

(10) days of the rendition of this opinion and to file written proof that Defendant

received the notice in the record of the proceedings.

AFFIRMED. REMANDED WITH INSTRUCTIONS.

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