NOT DESIGNATED FOR PUBLICATION

CHUTZ, J.

The defendant, Darrin Scott Sibley, Sr., was charged by bill of information with conspiracy to possess with the intent to distribute hydrocodone, a violation of La. R.S. 40:968(A) and La. R.S. 40:979 (count 1), and attempted possession with the intent to distribute hydrocodone, a violation of La. R.S. 40:968(A) and La. R.S. 14:27 (count 6).1 The defendant pled not guilty to the charges and, following a jury trial, was found guilty as charged on both counts. The trial court sentenced the defendant to five years imprisonment at hard labor on each count, to be served consecutively. The State subsequently filed a habitual offender bill of information, alleging the defendant had previous convictions for armed robbery, two counts of battery of a police officer, and three counts of possession of a Schedule II drug. The State alleged in the bill that the defendant should be adjudged a fourth or subsequent felony habitual offender on both counts (1 and 6). At the habitual offender hearing, a plea bargain was arranged with the State. The defendant admitted to the allegations in the habitual offender bill of information. The trial court vacated the original sentences and resentenced the defendant to fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on both counts. The defendant now appeals, designating three assignments of error. We affirm the convictions and habitual offender adjudications. We amend the habitual offender sentences to remove the parole restriction and affirm, as amended. We remand for correction of the minutes and the commitment order.

FACTS

Samantha Michelli worked at Central Rexall Drugs (Rexall) in Hammond as a pharmacy technician. Michelli testified at trial that one of her customers, Nick Willie, would obtain drug prescriptions from Texas, then get those prescriptions filled in Louisiana at Rexall. Michelli indicated that this process was cheaper for the customer and over a period of time, she began filling prescriptions for large amounts of medications, such as Lortab, Soma, and Xanax. According to Michelli, Rexall was "pretty much" the only pharmacy in Louisiana that filled Texas prescriptions.

By 2012, when Rexall stopped filling Texas prescriptions, Willie would approach Michelli when she was leaving work to tell her he needed his medication. Feeling threatened, Michelli began giving Willie some Soma that she had at her home. A short time later, Willie wrecked his vehicle while driving under the influence of drugs. He was convicted and went to jail. Willie began calling Michelli from jail. Willie informed Michelli that Terrence Hines, a fellow inmate, would be released from jail soon, and that Hines would be approaching her for drugs, which Hines was to sell and then split the profits with Willie. When Hines got out of jail, Michelli began providing him with stolen medication from Rexall. According to Michelli, Hines was not living up to Willie's expectations, so Willie began using the defendant as Michelli's contact. This arrangement came about because the defendant's brother, Brandon Cyprian, was in jail with Willie.

From September of 2012 to March 5, 2013, Michelli met with the defendant about once a week and gave him full bottles of Lortab (hydrocodone). Michelli testified she would drive to the defendant's apartment, stay in her car, and the defendant would walk to her car and get the drugs from her. During this time, Michelli was also selling prescription drugs to a person known as Tommie C. Anderson. Further, despite Willie's fallout with Hines, Michelli continued to sell prescription drugs to Hines. According to Michelli, her contacts, including the defendant, would sell the drugs and give Michelli and Willie part of the profits.

Based on discrepancies with the inventory and pharmacy video footage, the owner of Rexall contacted the police and told them about Michelli's activities. On March 5, 2013, Michelli was arrested in the parking lot at Rexall. She confessed to everything and told the police she had several boxes of (stolen) prescription drugs in her car that she had planned to deliver to her customers that day (March 5). Taking advantage of the situation, two detectives from the Hammond Police Department rode in the backseat of Michelli's car as she made her deliveries. During each stop, as each suspect approached Michelli's car to pick up the drugs, he was arrested by the detectives. Anderson was arrested, then Hines, and finally the defendant. Michelli's delivery for the defendant contained two bottles of hydrocodone. The defendant was going to pay her $2,500 for the drugs.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the trial court erred in admitting other crimes evidence "under a guise of a conspiracy charge." The defendant further argues that the two offenses he was charged with subject him to double jeopardy.

On the first day of trial, prior to voir dire, defense counsel Willis Ray filed a motion in limine to exclude reference by the State to other crimes, wrongs, or acts by the defendant outside of the dates for which he was charged (September of 2012 to March of 2013). Defense counsel noted that there had been no Prieur2 hearing on the issue. Blair Alford, one of the prosecutors, responded that Michelli was engaged in a conspiracy with several other people to sell drugs, and that the State would be adducing evidence at trial regarding Michelli's dealings with these people prior to September of 2012. Alford made clear, however, that Michelli would not be testifying about anything that the defendant did prior to this date (September of 2012). The trial court found that the evidence the State sought to introduce regarding other crimes did not show culpability on the part of the defendant but merely showed a continuing enterprise. Accordingly, the trial court denied the motion in limine.

The defendant argues in brief that the evidence of Michelli's various other crimes had nothing to do with him but instead sufficiently impugned his character before the jury. It was unfair, the defendant asserts, to ask him "to defend himself against the implied criminal predilection and innuendo caused by Ms. Michelli's crime spree as well as the crimes he was charged with participating in." Thus, according to the defendant, the trial court's failure to hold a Prieur hearing and the denial of the motion in limine were error.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115.

Louisiana Code of Evidence article 404(B)(1) provides:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403. A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Freeman, 2007-0470 (La. App. 1st Cir. 9/14/07), 970 So.2d 621, 625, writ denied, 2007-2129 (La. 3/14/08), 977 So.2d 930.

We find the trial court did not abuse its discretion in denying the defendant's motion in limine. The State in this matter did not file a notice of intent to use evidence of other crimes because it had no intention of introducing into evidence any other crime, wrong, or act committed by the defendant. The other crimes adduced at trial were those committed by Michelli, which the State was clearly entitled to address and develop. Michelli was a witness, not a defendant, in this trial and, as such, the applicability of La. Code Evid. art. 404(B) had no bearing on her testimony. Conversely, the defendant in this case had no cause to avail himself of the protections of Article 404(B) because there was no other crimes evidence regarding him adduced at trial. The prohibition against other crimes evidence pertains to other crimes by the defendant and has no application to other crimes committed by third parties. See State v. Trim, 2012-115 (La. App. 5th Cir. 10/16/12), 107 So.3d 656, 665, writ denied, 2012-2488 (La. 4/19/13), 111 So.3d 1030; State v. Buffington, 97-2423 (La. App. 4th Cir. 2/17/99), 731 So.2d 340, 352-53; State v. Martin, 97-1276 (La. App. 4th Cir. 11/18/98), 723 So.2d 1021, 1024-25, writ denied, 98-3148 (La. 5/28/99), 743 So.2d 658; State v. Joseph, 96-187 (La. App. 5th Cir. 11/14/96), 685 So.2d 237, 242-43, writ granted in part on other grounds; writ denied in part, 96-2998 (La. 5/9/97), 693 So.2d 782; State v. Bordenave, 93-1682 (La. App. 4th Cir. 8/23/95), 660 So.2d 1207, 1217, reversed in part on other grounds, 95-2328 (La. 4/26/96), 678 So.2d 19 (per curiam); State v. Olson, 503 So.2d 779, 781-82 (La. App. 3d Cir.), writ denied, 508 So.2d 85 (La. 1987).

The defendant's assertion that the two charges against him subjected him to double jeopardy is also baseless. According to the defendant, being charged with conspiracy to possess with intent to distribute hydrocodone and attempted possession with intent to distribute hydrocodone placed him in double jeopardy because, under the "same evidence" test, no additional evidence was presented to prove the attempt that was not used to prove the conspiracy to possess with intent to distribute hydrocodone.

The Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense but also protect against multiple punishments for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (selling narcotics not in original stamped package and selling narcotics not in pursuance to a written order of the purchaser constituted two different offenses although arising from a single delivery of narcotics); see Texas v. Cobb, 532 U.S. 162, 173, 121 S.Ct. 1335, 1343, 149 L.Ed.2d 321 (2001) ("We have since applied the Blockburger test to delineate the scope of the Fifth Amendment's Double Jeopardy Clause, which prevents multiple or successive prosecutions for the `same offense.'"), citing Brown v. Ohio, 432 U.S. 161, 164-66, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (barring successive prosecutions of greater and lesser included offenses). Louisiana's somewhat broader "same evidence" test considers not only the material elements of each offense but also whether the evidence required to convict of one crime would also support a conviction of the other, focusing "on the evidence necessary for conviction, not all the evidence introduced at trial." State v. Steele, 387 So.2d 1175, 1177 (La. 1980). The test precludes the state from "relabeling the offense to charge defendant a second time with the same criminal conduct." Steele, 387 So.2d at 1178.

However, when different acts violate the same statute, the test of whether the offender has committed one or several offenses simply "`is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. . . . If the latter, there can be but one penalty.'" Blockburger, 284 U.S. at 302, 52 S.Ct. at 181 (quoting Wharton's Criminal Law (11th Ed.) § 34, n.3). The test hinges on legislative intent. See Blockburger, 284 U.S. at 303, 52 S.Ct. at 182.

Each count in the bill of information in this case sets out a different crime, each requiring different elements to obtain a conviction. Unlike attempt, criminal conspiracy necessitates an agreement of purpose between two or more persons. La. R.S. 14:26. The presence and participation of Michelli was essential to the State's conspiracy charge against the defendant to possess (with the intent to distribute) hydrocodone; whereas the defendant's intending to purchase and sell drugs, and then approaching Michelli's car before coming into possession of those drugs, was all that was required to establish the attempt to possess (with the intent to distribute). See State v. Farmer, 497 So.2d 777, 785 (La. App. 3rd Cir. 1986), writ granted in part on other grounds, 503 So.2d 469 (La. 1987).

Thus, there was no double jeopardy under the "same evidence" wherein evidence required to support guilt of one crime would also support conviction for the other crime and the two would be considered the same offense. Here, proof of an attempt to possess does not also support the conviction for conspiracy, which involves an agreement of purpose between two or more persons. An attempt requires no such agreement between persons. The back-and-forth conversations between Michelli and the defendant regarding what drugs she would provide, the amount of drugs, the price for the drugs, and where the exchanges would take place constituted and completed the conspiracy to possess with intent to distribute. The attempt by the defendant to possess with intent to distribute did not occur until the day he was arrested (March 5) when he approached Michelli's car to take possession of the drugs. This distinction is exemplified in the bill of information wherein the State alleges that the dates of offense for the conspiracy charge were from September 1, 2012 to March 5, 2013, and the sole date of the offense for the attempt charge was March 5, 2013.

Similarly, there is no double jeopardy under the Blockburger test because the conspiracy requires proof of the additional fact of an agreement and an extra person (in agreement to commit the crime), whereas an attempt requires no such fact of any agreement or of the involvement of another person (to complete the crime of attempt).

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues the trial court erred in denying the defendant's motion for mistrial. Specifically, the defendant contends he was entitled to a mistrial because of an improper comment by the prosecutor during her opening statement.

A mistrial may be ordered, and in a jury case the jury dismissed, when there is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law. La. Code Crim. P. art. 775(3). A mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. See State v. Smith, 418 So.2d 515, 522 (La. 1982). See State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. A reviewing court in Louisiana should not reverse a defendant's conviction and sentence unless the error has affected the substantial rights of the accused. See La. Code Crim. P. art. 921.

Following is the offending portion, according to the defendant, of the prosecutor's opening statement:

Defense counsel moved for a mistrial. Although the prosecutor referred in its remarks to "Nick," who was incarcerated, defense counsel argued the prosecutor's further reference to several other people, including the defendant, created the "intimation that all of those folks were incarcerated at the time that Nick Willie" was incarcerated. This reference, according to defense counsel, referred to other crimes of the defendant. The trial court denied the motion for mistrial, and defense counsel did not request an admonition. See La. Code Crim. P. art. 771(1).

We see no reason to disturb the trial court's denial of the motion for mistrial. The prosecutor did not tell the jury the defendant was in jail. She said only that Nick was in jail and had made contact with other people. Moreover, the testimony at trial clearly established that the defendant was never in jail with Nick, nor was the defendant in jail during his (the defendant's) dealings with Michelli. The prosecutor's remarks did not refer to another (or any) crime committed by the defendant. Even if these remarks did exceed the proper scope of acceptable opening statement, the defendant has made no showing that the remarks influenced the jury and contributed to the verdict. See La. Code Crim. P. art. 775; State v. Hampton, 98-0331 (La. 4/23/99), 750 So.2d 867, 878-79, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999).

We find no abuse of discretion in the trial court's denial of the defendant's motion for a mistrial. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues the trial court erred in not advising him at the habitual offender hearing of his right to remain silent, to be afforded a multiple offender hearing, or requiring a plea form to be executed.

This argument is baseless. At the habitual offender hearing, the defendant, who was facing a sentencing range of twenty years to life imprisonment on counts 1 and 6, accepted a plea agreement of fifteen years imprisonment at hard labor on each count (to run concurrently). Moreover, the trial court went over with the defendant all of the allegations regarding his six prior convictions included in the habitual offender bill of information. The trial court also informed the defendant of his right to remain silent and of his right to a full hearing on the habitual offender charges. The defendant was fully aware of his rights, and, after conferring with counsel, he voluntarily stipulated to the habitual offender allegations and entered into a very favorable plea agreed upon by all parties. See La. R.S. 15:529.1(D)(1)(a); State v. Cook, 2011-2223 (La. 3/23/12), 82 So.3d 1239, 1240 (per curiam). Further, despite the defendant's contention, there is no requirement that a "plea form" be executed.

This assignment of error is without merit.

PATENT SENTENCING ERROR

A defendant's sentence under the Habitual Offender Act is determined by the sentencing provisions of both the underlying crime and the Habitual Offender Act. See State v. Bruins, 407 So.2d 685, 687 (La. 1981). As an adjudicated habitual offender, the trial court sentenced the defendant (for each count) to fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Neither the applicable habitual offender provision nor the statutes for the underlying offenses contain a parole restriction. See La. R.S. 15:529.1(A)(4)(a) & 15:529.1(G); La. R.S. 40:968(B); La. R.S. 40:979(A); La. R.S. 14:27(D)(3). Accordingly, the trial court's denial of parole eligibility for the defendant's habitual offender sentences is illegally harsh.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882(A). Therefore, we hereby amend the defendant's sentences to remove the parole restrictions and affirm those sentences, as amended. The sentences are still to be served without benefit of probation or suspension of sentence. Further, we remand this case to the trial court for correction of the minutes, as well as correction of the commitment order and transmission of the amended commitment order to the Louisiana Department of Corrections.

CONVICTIONS AND HABITUAL OFFENDER ADJUDICATIONS AFFIRMED; SENTENCES AMENDED AND, AS AMENDED, AFFIRMED; REMANDED FOR CORRECTION OF THE MINUTES AND THE COMMITMENT ORDER.