GRAVOIS, Judge.
The defendant, Mike Alvarez, was charged with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A), and possession of a firearm while in possession of cocaine in violation of LSA-R.S. 14:95(E). After pleading not guilty, he filed a motion to suppress evidence, which was denied by the trial court. The defendant proceeded to trial by jury and was found guilty of the lesser charge of possession of cocaine and not guilty as to the firearm charge. After being adjudicated a second felony offender, the defendant was sentenced to ten years imprisonment at hard labor. On appeal, this Court found that the trial court erred in denying the defendant's motion to suppress and vacated his conviction and sentence. State v. Alvarez, 08-0558 (La.App. 5 Cir.
The following facts are taken from this Court's prior opinion, State v. Alvarez, 8 So.3d at 52, 53:
On appeal, the defendant argued that the trial court erred in failing to suppress the physical evidence gathered as a result of an illegal seizure. The Supreme Court has found that the trial court properly denied the defendant's motion to suppress. On remand this Court was instructed by the Supreme Court to address the defendant's remaining assignment of error, which is excessive sentence. In this assignment of error, the defendant contends that he received the maximum sentence of ten years at hard labor for a second felony offender, which was excessive and violated his constitutional rights. He argues that the trial court gave inadequate reasons for imposing a maximum sentence, stating that his prior offense occurred ten years earlier and that at the time of this incident he was gainfully employed, working two jobs.
The record reflects that after the trial court found the defendant to be a second felony offender and imposed an enhanced ten-year sentence at hard labor, the defendant objected to the finding and objected to the maximum sentence as being excessive. The trial judge stated:
After the defendant's enhanced sentence was imposed, defense counsel
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lagarde, 07-123, p. 13 (La. App. 5 Cir. 5/29/07), 960 So.2d 1105, 1115, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.
In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, while recognizing the trial court's wide discretion. Id. The trial judge is afforded wide discretion in determining a sentence, and the appellate court will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.
The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Lagarde, 07-123 at 16, 960 So.2d at 1117. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Lagarde, 07-123 at 13, 960 So.2d at 1115.
The sentencing range for the underlying offense, possession of cocaine, is imprisonment with or without hard labor for not more than five years and, in addition, a possible fine of not more than five thousand dollars. LSA-R.S. 40:967(C)(2). Pursuant to LSA-R.S. 15:529.1(A)(1)(a), as a second felony habitual offender, the defendant's enhanced sentencing range for his conviction for possession of cocaine was for a term of not less than two and one-half years and not more than ten years.
The maximum sentence for a second felony offender with an underlying conviction for possession of cocaine has previously been upheld. In State v. Smith, 05-2617 (La.App. 1 Cir. 12/28/06), 2006 WL 3813673, at 2-3 (unpublished opinion), the First Circuit upheld the maximum ten-year sentence for a defendant convicted of possession of cocaine and previously convicted of forcible rape.
Our review of the record indicates the trial court did not abuse its discretion in imposing the ten-year enhanced sentence in this case. The defendant had a prior conviction of carnal knowledge of a juvenile. The circumstances surrounding the incident which resulted in the underlying conviction also offer support for the defendant's sentence. The matter involved the recovery of cocaine on the defendant's person as well as the recovery of additional cocaine found in the defendant's freezer. After fleeing from the officers, the defendant struggled with officers and two officers were injured in the struggle. Given these circumstances, we find the sentence imposed is not excessive.
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review revealed discrepancies in the minute entries and commitments.
The February 27, 2008 jury trial minute entry reflects that the defendant was charged with "SCHEDULE II DIST/ WITD OF A CDS (40:967.A)." The defendant was actually charged with possession with intent to distribute cocaine. Further, the charge does not include the specific controlled dangerous substance involved.
In State v. Woolridge, 08-340 (La.App. 5 Cir. 10/14/08), 996 So.2d 618, the commitment reflected that the defendant pled guilty to "DIST/WITD" heroin and "DIST/WITD" marijuana. The defendant had actually pled guilty to possession with intent to distribute heroin and marijuana. This Court cited State v. Lynch, 441 So.2d 732, 734 (La.1983) and recognized that when there is a discrepancy between the minutes and the transcript, the transcript prevails. Because the commitment appeared to indicate distribution as the charge, this Court remanded the matter to allow the trial judge to correct the commitment to conform to the transcript and other parts of the record. Following Woolridge, we remand this matter for correction of the commitment.
We also find that the description of the firearm charge is incorrect. The trial minute entry reflects the defendant was charged with "USE OF FIREARM/CDS (14:95.E)." Also, the commitment describes count two as "USE OF FIRARM/CDS-COCAINE." The defendant was not charged with the use of firearms, but was charged with possession of a firearm while in possession of cocaine. Both the minute entry and commitment must be amended to correct the error from use of firearms to possession of a firearm while in possession of cocaine.
Additionally, we find an error in the original commitment. The commitment reflects the defendant was found guilty of count one, possession of cocaine, but improperly cites the statute as LSA-R.S. 40:966(C), which relates to Schedule I drugs and incorrectly states that cocaine is a controlled dangerous substance classified in Schedule I. Possession of cocaine is a violation of LSA-R.S. 40:967(C) and is a Schedule II controlled dangerous substance. This error must also be corrected by the trial court on remand.
Finally, we note that the multiple bill commitment reflects that the court found the defendant to be a multiple offender and sentenced him under the multiple bill statute, however, this commitment fails to reflect the defendant's specific status as a second felony offender. Since the transcript correctly states that the defendant was found to be a second felony offender, pursuant to State v. Defrene, 07-823, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34, on remand the trial court is instructed to correct the commitment to state that the defendant was sentenced as a second felony offender.
For the foregoing reasons, defendant's sentence and conviction are affirmed. This matter is remanded to the trial court for the limited purpose of correcting the foregoing errors patent.