CONERY, Judge.

On March 14, 2013, a Calcasieu Parish Grand Jury indicted Defendant, Ashaki Okung Kelly, charging him with three counts of aggravated rape of D.V.,1 a juvenile victim under the age of thirteen with date of birth May 29, 2000, in violation of La.R.S. 14:42.2 The grand jury also charged Defendant with three counts of oral sexual battery of juvenile victim A.V. The trial court conducted a bench trial pursuant to stipulation of the parties on May 21, 2013, and found Defendant guilty of the responsive verdict3 of one count of a lesser-included offense, molestation of the juvenile, D.V., in violation of La.R.S. 14:81.2 with offense date of November 24, 2012. The court acquitted Defendant on all other charges.

At a sentencing hearing on October 2, 2013, the court sentenced Defendant to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. On October 4, 2013, the court informed Defendant, in open court, regarding his duty to register as a sex offender.

Defendant now appeals his conviction, assigning two errors. Defendant's assignments of error lack merit and we affirm Defendant's conviction. We vacate Defendant's sentence, finding it to be an illegal sentence, and remand this case to the trial court for resentencing pursuant to La.R.S. 14:81.2(D)(1).

FACTS AND PROCEDURAL HISTORY

Two sisters, D.V. and A.V., were living with their mother and her fiancé, Defendant herein. The two minor children claimed that Defendant inappropriately touched them while he was watching them when their mother was at work. Following an investigation, Defendant was charged by a Calcasieu Parish grand jury by bill of indictment with three counts of aggravated rape of D.V., a juvenile under the age of thirteen with date of birth May 29, 2000, and two counts of oral sexual battery of A.V., in violation of La.R.S. 14:42 and 14:43.3, respectively. Defendant waived his right to a jury trial and his case proceeded to a bench trial on May 21, 2013. The grand jury indictment alleged and the evidence at trial showed through the testimony of D.V. that Defendant had inappropriately touched her on November 24, 2012, and that she had timely reported that incident to her mother and to the authorities. Further, D.V. testified at Defendant's May 21, 2013 trial that she was twelve years old when the November 24, 2012 incident occurred.

Based on the evidence presented at trial, the trial court found Defendant guilty of the responsive verdict of molestation of a juvenile. It was uncontradicted that D.V.'s date of birth was May 29, 2000, and that the date of molestation was November 24, 2012. Therefore, there was no factual dispute that the victim was twelve at the time of the incident on November 24, 2012, as well as the fact that the victim was under the control and supervision of Defendant at all times pertinent hereto.

Louisiana Revised Statutes 14:42 defines aggravated rape, in pertinent part, as:

Molestation of a juvenile is a proper responsive verdict to aggravated rape. La. Code Crim.P. art. 814. Louisiana Revised Statutes 14:81.2 defines molestation of a juvenile, in pertinent part, as:

The legislature has set forth enhanced penalties for molestation of a juvenile where, as here, the victim is under the age of thirteen:

La.R.S. 14:81.2(D)(1).

Following the trial court's entry of the responsive verdict of molestation of a juvenile pursuant to La.Code Crim.P. art. 814 and La.R.S. 14:81.2, the trial court held a post-trial status conference on June 12, 2012, wherein the trial court acknowledged that the mandatory minimum sentence for molestation of a juvenile under thirteen was twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court then requested that the State and Defendant meet to see if an agreement on a lesser sentence could be reached, presumably in accordance with La.Code Crim.P. art. 890.1(A)(2):4

No such agreement to reduce sentence was reached, nor was it permissible in this case, as La.Crim.P. art. 890.1(D) provides, "D. The provisions of this Article shall not apply to a sex offense as defined in R.S. 15:541 or to any of the following crimes of violence." The definition of "sex offense" as set forth in La.R.S. 15:541(24)(a) includes La.R.S. 14:81.2, molestation of a juvenile.

Defendant then filed post-trial motions, including a motion to reconsider verdict and/or a motion for a new trial, and a hearing was set for the same day as sentencing. The trial court heard and denied all post-trial motions on October 2, 2013, refused to reconsider its verdict, and reaffirmed its verdict that there was sufficient evidence presented at trial to prove Defendant guilty of molestation of the juvenile D.V. beyond a reasonable doubt.

At sentencing on October 2, 2013, the trial court attempted to "take back" the finding that the victim was under the age of thirteen. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that facts that could potentially increase the penalty for the crime charged beyond the maximum must be submitted to the jury and proven beyond a reasonable doubt to be able to be used by the judge when sentencing the defendant. The grand jury indictment specifically alleged that the victim's date of birth was May 29, 2000. The indictment alleges on its face that the victim was twelve at the time of the alleged offense with a date of November 24, 2012, and, indeed, those dates were not in controversy. See State v. Breaux, 13-917 (La. App. 3 Cir. 2/12/14), 2014 WL 575844 (unpublished opinion) (holding that there was sufficient evidence that the victim was under the age of thirteen at the time of the crime, substantiating the enhanced penalty under molestation of a juvenile); State v. Moses, 13-54, p. 5 (La.App. 3 Cir. 6/5/13), 2013 WL 2420830 (unpublished opinion) (holding that "Because Defendant was the only adult present, and [the victim's mother] allowed [the victim] to leave home with Defendant, Defendant had supervision and control of N.M.").

As to the post-trial motions filed, a motion for post judgment verdict of acquittal5 can be used by a defendant after a jury enters a verdict of the crime charged, but not after a bench trial, as in this case. There is no procedural mechanism for a motion to reconsider verdict. See State v. Williams, 04-1377 (La.App. 4 Cir. 12/1/04), 891 So.2d 26. In Williams, the fourth circuit stated:

Id. at 32.

While a trial court has discretion to grant a new trial for sufficient grounds alleged pursuant to La.Code Crim.P. art. 851,6 no such grounds were alleged in this case. In fact, the motion in question is not in the record. In any event, the trial court denied the motions and upheld the verdict of molestation of a juvenile. We note that the trial court had no specific procedural basis on which to "take back" his Apprendi finding that the victim was under the age of thirteen. Indeed, the victim's date of birth was not at issue and is not in the category of factual findings that can be "taken back," absent proof that the date of birth was factually incorrect. Here, both the victim and the mother testified that the victim was twelve years old at the time of the incident. The grand jury indictment alleged and the trial court had specifically noted the victim's date of birth and the date the offense was committed:

(Emphasis added.) Nevertheless, the trial court later stated at the October 2, 2013 sentencing hearing:

(Emphasis added.) The trial court, pursuant to stipulation of defense counsel to waive sentencing delays,8 then sentenced Defendant to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence on the charge of molestation of a juvenile, but did not specify the subsection of La.R.S. 14:81.2 under which it was determining Defendant's sentence.9

Following the imposition of Defendant's sentence, Defendant appealed, assigning two errors for our review. The State responded to Defendant's assignments of error, but did not assert any error of its own on appeal and did not object at sentencing to the trial court's sentence as being illegal. Defendant, likewise, did not appeal the sentence. No opportunity was afforded to the victim or her family members to speak on the issue of sentencing pursuant to La.R.S. 46:1844.

ASSIGNMENTS OF ERROR

Assignment of Error One

In his first assignment of error, Defendant argues the trial evidence was insufficient to support his conviction. The analysis for such a claim is well-settled:

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant argues that the victims, who both testified, were not credible. He points out that the trial court questioned the credibility of the girls on several points.

A review of the transcript of the trial court's reasoning shows that the trial court closely scrutinized the credibility of the victims in the present case. Defendant complains that the testimony suggested that some unknown person had spoken to the girls about their allegations and for that reason, the allegations were not credible. The trial court noted that the victims used terminology that did not seem normal for young girls. Thus, the record demonstrated that the trial court took into account the potential role such an unknown party could have played. The trial court's negative assessment of that role was part of its overall assessment of much of the victims' testimony and ultimately benefitted Defendant, as the State was seeking a conviction on three counts of aggravated rape of D.V., which carries a life sentence on each count. Further, based on the trial court's analysis of credibility, Defendant was acquitted of two counts of oral sexual battery of A.V., each count carrying a potential penalty of up to ten years at hard labor.

Defendant also complains that some of the trial court's language indicated that it did not adhere to the reasonable doubt standard. For example, Defendant points out that the trial court remarked that some testimony led it "to believe more than likely that child was, in fact, molested." However, we believe that the record as a whole clearly shows that the trial court applied the reasonable doubt standard to the evidence and correctly found Defendant guilty of the responsive verdict of molestation of the juvenile, D.V. The trial court stated:

Defendant's assignment is essentially an attack on credibility in a case in which the credibility issues at trial were taken into account and appropriately dealt with by the trial court. We again note that credibility is a matter for the fact-finder. "It is well-settled that a jury is free to believe some, none, or all of any witness's testimony." State v. Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817; see also Kennerson, 695 So.2d 1367. In this case, the trial judge was the fact finder and there is a sufficient basis in the record to support the conviction.

For these reasons, this assignment lacks merit.

Assignment of Error Two

In his second and final assignment of error, Defendant argues that the trial court's conduct of the proceedings deprived him of a fair trial. First, Defendant argues that the trial court failed to assure that he was arraigned. However, La.Code Crim.P. art. 555 states:

Defendant does not indicate that he objected to the lack of arraignment or was prejudiced thereby. This portion of his argument has no merit.

Next, Defendant argues that D.V.'s testimony that Defendant "touched her butt" with his genitals formed the main basis of Defendant's conviction and came forth only after the trial court allowed multiple direct and cross-examinations of D.V. In support of his argument, Defendant points to the trial court's statement that "I solicited evidence that maybe as a trial judge I might have asked more questions than I probably should have, but in an effort to look at the truth and find the truth." Therefore, Defendant contends that D.V.'s statement, elicited during her third direct examination, should not have been admitted, and without that statement, Defendant claims there is insufficient evidence to support his conviction for the crime of molestation of a juvenile. He cites no jurisprudence to support this contention.

We note that, La.Code Evid. art. 614 states:

This was not a jury trial. In State v. Layssard, 310 So.2d 107, 108 (La.1975), the supreme court stated:

See also State in, the Interest of D.R., 10-405 (La.App. 4 Cir. 10/13/10), 50 So.3d 927.

The record shows that Defendant made no contemporaneous objection to the trial court's questioning. Counsel acquiesced to the procedure. The trial court again asked counsel at the motion for new trial whether he had any objection to the trial court's questioning of the witnesses. Counsel again lodged no objection to the trial court's questioning, arguing only that the trial court should have read the victim's mother her Miranda rights prior to her being questioned, which is not at issue here. Due to the lack of contemporaneous objection by Defendant, we find this argument lacks merit. The trial judge's participation in this trial did not deprive this Defendant of a fair trial. See La.Code Crim.P. art. 841; La.Code Evid. art. 103(A)(1); La.Code Evid. art. 614(C); In the Interest of D.R., 50 So.3d 927; Layssard, 310 So.2d 107.

Defendant's next complaint is that the State rested before formally introducing into evidence video recordings of interviews with the victims. Defendant observes that the trial court denied his motion for acquittal after the State rested. After Defendant called his sole witness, the trial court asked whether he objected to the introduction of the recordings. Defendant did object, but the trial court overruled the objection. Defendant complains the trial court made a sua sponte decision to admit the recordings, but this characterization is not supported by the record. During the State's case-in-chief, the trial court had actually deferred ruling on the admissibility of the recordings. La.Code Evid. art. 611(A) states:

Louisiana Code of Criminal Procedure Article 765(5) states, in pertinent part, "The court in its discretion may permit the introduction of additional evidence prior to argument[.]" Reading these provisions together, we find that the trial court acted well within its discretion in admitting the video recordings at issue. This argument lacks merit.

The final paragraph of Defendant's argument alleges that the trial court's actions mentioned in the rest of the assignment "establish a pattern of conduct that prejudiced" him. However, Defendant cites no jurisprudence to indicate that a "pattern of conduct" constitutes reversible error. The State suggests that Defendant's contention is merely a "cumulative error" argument. This court has explained:

State v. Marinello, 09-1260, p. 38 (La.App. 3 Cir. 10/6/10), 49 So.3d 488, 511, writs denied, 10-2494, 10-2534 (La.3/25/11), 61 So.3d 660, 661.

For the reasons discussed, this assignment lacks merit. We affirm Defendant's conviction.

ERRORS PATENT

At the outset, we note that the sentence imposed by the trial court is an illegal sentence for the crime of molestation of a juvenile. Louisiana Revised Statutes 14:81.2(A)(1) provides:

Defendant was charged with aggravated rape of the victim D.V., under the provisions of La.R.S. 14:42, which states in pertinent part:

The trial court returned a responsive verdict of molestation of a juvenile. The sentence imposed by the trial court, fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence, does not follow any of the sentencing provisions of the statute.

If, as in this case, the victim was alleged to be under the age of thirteen, the sentencing provisions of La.R.S. 14:81.2(D)(1) would apply. Louisiana Revised Statutes 14:81.2(D)(1) provides:

If the juvenile victim was over thirteen, Defendant was over seventeen, and the victim was under the control of Defendant, La.R.S. 14:81.2(B)(2) would apply, and it states:

The sentence imposed follows neither of these two provisions and is an illegal sentence. Where, as in this case, the victim is under thirteen, the mandatory minimum sentence set forth by the legislature is twenty-five years to ninety-nine years, at least twenty-five years of which must be served without benefit of probation, parole, or suspension of sentence. La.R.S. 14:81.2(D)(1). Assuming the trial court had the discretion to find the juvenile was over thirteen and the correct sentencing provision is as provided in La.R.S. 14:81.2(B)(2), a fine up to $10,000.00 and a sentence with or without hard labor for not less than five or more than twenty years, or both, the sentence is illegally lenient as the sentence imposed does not provide for a fine. It is also illegally harsh, as the sentence imposed by the trial court provides that it be served without benefit of probation, parole, or suspension of sentence and La.R.S. 14:81.2(B)(2) contains no such provision.

As we indicated, neither the State nor Defendant filed an appeal urging a sentencing error. However, where, as here, we can determine that the sentence on its face is illegal, La.Code Crim.P. art. 920(2) provides, "An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence" may be corrected on appeal. La.Code Crim.P. art. 882(A) states, "An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review."

Because we have determined that the sentence imposed is illegal based on a mere inspection of the pleadings and proceedings without inspection of the evidence pursuant to La.Code Crim.P. art. 920(2), we must remand the case to the trial judge for imposition of the correct sentence. La. Code Crim.P. art. 881.4(A).10 The sentence to be imposed has a sentencing range of twenty-five years to ninety-nine years and, in accordance with the mandatory minimum set forth by the legislature, "At least twenty-five years of the sentence shall be imposed without benefit of probation, parole, or suspension of sentence." La.R.S. 14:81.2(D)(1).

We are aware that neither the State nor Defendant raised a sentencing error on appeal. We now discuss whether it is constitutionally permissible under the circumstances to vacate the illegally lenient sentence imposed by the trial court and remand for imposition of a more onerous sentence.

An illegal sentence is a sentence not authorized by law. See State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858. "It is well-established that a prisoner cannot escape punishment simply because the court committed an error in passing sentence." Evans v. Secretary Pennsylvania Dept. of Corrections, 645 F.3d 650, p. 662 (3rd Cir. 2011) (citing Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818). Further, "a sentence may be increased when the original sentence did not conform to a statutory requirement." U.S. v. Rosario, 386 F.3d 166 (2nd Cir.2004) (citing Bozza, 330 U.S. 160, 67 S.Ct. 645).

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, our supreme court discussed the issue of whether an appellate court may recognize an illegally lenient sentence as a patent error pursuant to La.Code Crim.P. art. 882(A). In Williams, as here, the state did not object to the illegally lenient sentence and did not assign errors on appeal. The supreme court stated, "Although a criminal defendant has the constitutional right to have his conviction reviewed to insure that the State proved his guilt beyond a reasonable doubt, it is nonetheless well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence." Williams, 800 So.2d at 797. Further, the supreme court stated in Williams:

Id. at 798. Thus, the supreme court held, "[a]n illegal sentence may be corrected at any time by ... an appellate court on review." Id. at 802 (quoting La.Code Crim.P. art. 882(A)).

In State v. Clemons, 01-1032, p. 3 (La. App. 5 Cir. 2/26/02), 811 So.2d 1047, 1050, writ denied, 02-0866 (La.11/22/02), 834 So.2d 972, the court cited Williams with approval and held that, "under the general provisions of La.Code Crim.P. art. 882, an illegally lenient sentence may be corrected at any time by the reviewing court." Writs were denied in the companion case of State v. Phillips, 02-0866 (La. 11/22/02), 834 So.2d 972. In State v. Phillips, 35,554 (La.App. 2 Cir. 1/21/02), 806 So.2d 964, writ denied, 02-0866 (La. 11/22/02), 834 So.2d 972, the second circuit found that the trial court failed to impose a mandated fine and remanded the case for resentencing. Likewise, in Clemons, the fifth circuit found that the trial court did not impose a mandated fine or inform the defendant that his sentence was to be served without benefit of probation, parole, or suspension of sentence. The fifth circuit remanded the case to the trial court for resentencing. In both cases, patent error was found based on an illegally lenient sentence and the cases were remanded for imposition of a more onerous sentence. In both cases, the supreme court denied writs. Just as he did in Williams, then Chief Justice Calogero dissented to the denial of the writs on this issue, this time joined by Justice Johnson (now Chief Justice) and Justice Weimer. The dissent in Phillips stated:

State v. Phillips, 02-0866, p. 1-3 (La.11/22/02), 834 So.2d 972, 972-73.

While we recognize and respect the reasoning of the dissent in Williams and Phillips, we agree with the rationale espoused by the majority in Williams and find that under the circumstances of this case, we must recognize the trial court's illegally lenient sentence and remand to the trial court to impose the statutorily correct sentence under the law and peculiar facts of this case.

We recognize that different panels of this court have chosen not to recognize and correct an illegally lenient sentence because the issue was not raised.11 Still other panels of this court have recognized and corrected illegal sentences.12 A recent comment in the Loyola Law Review further discusses appellate decisions interpreting this issue and calls for legislative amendment of the law to provide for greater clarity.13

In State v. Bourda, 10-1553 (La.App. 3 Cir. 6/8/11), 70 So.3d 82, writ denied, 11-2122 (La.2/17/12), 82 So.3d 282, a panel of this court noted that the forty year sentence imposed by the trial court was an error patent because it was an illegally lenient sentence. Following the reasoning of Williams, our court vacated the forty-year sentence imposed by the trial court, and, pursuant to La.Code Crim.P. art 882(A), imposed the much more onerous but statutorily mandated sentence of life imprisonment in that case. In Bourda, however, even though the court found the sentence illegal on error patent review, the State had also listed and argued this issue as an assigned error.

In State v. Thibodeaux, 12-300 (La.App. 3 Cir. 10/24/12), 100 So.3d 398, though the State did address the sentencing issue on appeal, it did not specify in its notice of appeal that the sentence was illegally lenient. A panel of our court nevertheless applied Williams and held:

Thibodeaux, 100 So.3d at 402-3 (quoting State v. Jefferson, 01-1139 (La.App. 5 Cir. 3/13/02), 815 So.2d 120).

We note that had this been a jury trial, the trial court would have been obligated to list the responsive verdicts on the jury sheet. The responsive verdicts to the crime of aggravated rape of a child under thirteen are:

Aggravated rape of a child under the age of thirteen are:

La.Code Crim.P. art. 814(A)(8.1).

The jury would have had to acquit, convict on the crime charged, or pick one of the responsive verdicts. The responsive verdict of molestation of a juvenile to the crime of aggravated rape of a child under thirteen requires the trial court to sentence Defendant to molestation of a juvenile under thirteen. There is no provision of the law that would have enabled the trial court to simply ignore the jury's Apprendi findings. The trial court, likewise, cannot ignore or change its own Apprendi findings and ignore the mandatory minimum sentence that the legislature has imposed to satisfy its own idea of what the sentence should be absent actual mistake or error not present herein.14

We have discovered from a mere inspection of the pleadings and proceedings that the sentence imposed by the trial court is an illegal sentence in accordance with La. Code Crim.P. art. 920(2), and have corrected it pursuant to La.Code Crim.P. art. 882(A) by ordering a remand as provided by La.Code Crim.P. art. 881.4(A).

We have already reviewed the entire record in connection with our appellate review of the conviction. Though not essential to our decision to remand for resentencing, that review of the record clearly supports our decision. The trial court admittedly had great and even vast discretion as the trier of fact in returning a proper responsive verdict of molestation of a juvenile in this case. But not even vast discretion vests the trial court with authority to "take back" an Apprendi finding that the victim in this case was under thirteen when that same judge had already found that the victim's birth date was May 29, 2000 and the date of the offense was November 24, 2012. Simple math proves that D.V. was twelve at the time of the offense. All of the evidence was in accord. Likewise, it was uncontroverted that the mother had left the victim in the control and under the supervision of her fiancé, Defendant herein.

We must not lose sight of the victim's right to a fair trial. Louisiana Constitution Article I, § 25 has made it clear that "Any person who is a victim of crime shall be treated with fairness, dignity, and respect." Would it be fair and respectful to this young victim of a horrible crime committed against her when she was twelve years old to tell her that it is acceptable for the trial court to ignore the undisputed fact that she was twelve years of age, and then sentence her assailant to an illegally lenient sentence as though she was over thirteen? We think not. The trial court committed legal error when it attempted to do so. It is clear from the record that that is exactly what he did, as we discussed fully in the facts and procedural history portion of this opinion. It is worth repeating the parting comments of the trial court to Defendant after sentencing:

Even though we have not reviewed the evidence in connection with our error patent finding, the record is clear that the trial judge knew full well that he was imposing an illegally lenient sentence and chose to do so anyway. Though we need not and, arguably, cannot review the record in determining whether a sentence is illegally lenient, we should not fail to mention the clear and uncontroverted facts that support our decision, especially once we have already undertaken responsibility to review the entire record in connection with Defendant's appeal of the guilty verdict. We remand this case to the trial court to correct this illegally lenient sentence and accord justice to this young victim in accordance with law and with her constitutional rights pursuant to La.Const. art. I, § 25.

CONCLUSION

In our view, this case involves the imposition by the trial court of an illegal sentence. In La.R.S. 14:81.2(D)(1), the legislature has mandated a minimum sentence of twenty-five years with a maximum sentence of ninety-nine years at hard labor, at least twenty-five years of which must be served without benefit of probation, parole, or suspension of sentence for molestation of a juvenile where, as here, the grand jury indictment alleges and the uncontroverted facts show that the victim was under the age of thirteen and under the supervision and control of the defendant. The sentence imposed by the trial court in this case was an illegal sentence for this particular crime perpetrated on this particular victim under the facts and circumstances of this case, and we hereby vacate the trial court's sentence and remand this matter to the trial court for resentencing in conformity with the provisions of La. R.S. 14:81.2(D)(1) and this decision.

DISPOSITION

Defendant's conviction is affirmed, Defendant's sentence is vacated and the case is remanded to the trial court for resentencing in accordance with La.R.S. 14:81.2(D)(1). The trial court is directed to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 at the resentencing proceeding.

CONVICTION AFFIRMED; SENTENCE VACATED. THIS CASE IS REMANDED TO THE TRIAL COURT FOR SENTENCING CONSISTENT WITH THIS OPINION.

AMY, J., concurs in part, dissents in part and assigns reasons.

AMY, J., concurring in part and dissenting in part.

I agree with the majority opinion's proposal to affirm the defendant's conviction after review of the defendant's assignments of error.

However, I respectfully dissent from the decision to vacate the defendant's sentence and remand for re-sentencing under error patent review. Rather, I do not find that the purported sentencing error cited by the majority is "discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La.Code Crim.P. art. 920(2). See State v. Oliveaux, 312 So.2d 337 (La.1975) (wherein the supreme court listed a number of examples of the types of pleadings/proceedings reviewable under Article 920(2)). Here, neither the State nor the defendant raised a sentencing error by assignment of error and the alleged error identified by the majority opinion is discoverable after an inquiry into the transcript, the evidence, and the trial court's evaluation of the facts developed. Such an inquiry, in my opinion, is beyond the type of review anticipated by Article 920(2).

For this reason, I do not join in the majority opinion to the extent it vacates the defendant's sentence.