JOAN BERNARD ARMSTRONG, Chief Judge.
On May 20, 2009, the defendant/appellant, Henry Phillips, was charged with one count each of purse snatching and extortion. He entered a not guilty plea on May 26, 2009, and on July 2, 2009, the district court found probable cause and denied the motion to suppress the evidence. The motion to suppress the identification was denied prior to trial on October 19, 2009. The State nolle prosequied the extortion count and proceeded to trial on the purse snatching count where the defendant was found guilty as charged. The defendant was sentenced on November 9, 2009 to serve ten years at hard labor, to run concurrently with any other sentence he may be serving. On December 2, 2009, the district court denied a motion to reconsider sentence. The defendant was subsequently adjudicated a third felony offender. Thereafter, on January 20, 2010, he was resentenced pursuant to La. R.S. 15:529.1 to serve life imprisonment at hard labor. This appeal follows.
The victims, Tracie and Jason Socha, visitors from San Diego, California, were in New Orleans on March 21, 2009 to attend a friend's wedding. That morning, after they finished breakfast, they stopped at a McDonalds located on St. Charles Avenue to purchase a milkshake. Mr. Socha gave his wallet to his wife. She entered McDonalds while he waited outside. After she made her order and paid the cashier, Mrs. Socha placed the wallet on the counter while she waited for her change. She may have had a finger on the wallet. At the very least, her hand was next to the wallet. A man then came up from behind her and grabbed the wallet. Mrs. Socha ran out of McDonalds after the man and called to her husband. The Sochas caught up with him when he stopped next to a bright blue bicycle. Mr. and Mrs. Socha attempted to talk the man into taking only the cash from the wallet and giving the wallet back to them. At first, the man declined. He also moved his hand towards the waist of his pants and asked them whether they wanted to be shot. Mr. Socha continued to talk to the man despite the threat. After a minute or two, the man took a twenty dollar bill that was clipped to the outside of the wallet and threw the wallet to the ground. The man then got on his bicycle and left. Employees of McDonalds followed the man on his
Sergeant Young responded to the call and met with Mr. and Mrs. Socha in the parking lot of McDonalds. The sergeant then took them to the house on Carondelet Street where they could see the blue bicycle parked out front. A door on one of the apartments at the house was partially opened. Sergeant Young called for backup. Once Sergeant Philibert arrived, the two officers entered the opened door and encountered two males. One fit the description of the perpetrator who had been described as an older black male wearing a blue and white shirt. The man was escorted from the house and positively identified by Tracie and Jason Socha as the perpetrator. The man was arrested. A search incident to his arrest revealed a twenty dollar bill in the front pocket of his pants.
Both Tracie and Jason Socha identified the defendant in court as the man who took Mr. Socha's wallet. The jury also viewed a surveillance tape taken at the McDonalds restaurant and listened to the 911 call made by a manager of McDonalds.
A review of the record reveals one errors patent. The district court did not restrict parole eligibility as required by La. R.S. 15:529.1. Although the district court did not restrict parole eligibility on the sentence, La. R.S. 15:301.1(A) self-activates the correction and thus, eliminates the need to remand for a ministerial correction of the sentence. State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.
The defendant, through counsel, raises three assignments of error in his original brief and three assignments of error in his pro se supplemental brief. We address these assignments of error as follows:
By his first assignment of error, the defendant asserts that the district court erred by denying his post-verdict judgment of acquittal. He argues that the evidence was insufficient to convict beyond a reasonable doubt.
In State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:
Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon. La. R.S. 14:65.1. The defendant argues that the State failed to prove that the wallet was in the immediate control of Mrs. Socha when it was snatched.
Situations in which the wallet or purse was not in the physical possession of the victim at the time it was snatched have been addressed by this court and the Louisiana Supreme Court.
In State v. Anderson, 418 So.2d 551 (La.1982), the court held that a purse snatching did not require an actual face-to-face confrontation. It then affirmed a conviction for purse snatching where the victim's purse had been taken from the floor near her legs. In State v. Pierre, 2004-0010 (La.App. 4 Cir. 2/25/04), 869 So.2d 246, this court found that the evidence was sufficient to show that the victim's purse was in her immediate control when the defendant snatched the victim's purse that was lying next to her on the counter of a grocery store.
As in Anderson and Pierre, the wallet that was snatched by the defendant was in the immediate control of Mrs. Socha. The wallet was lying right next to her hand on the counter of the McDonalds, and she may have even had a finger on the wallet. This assignment of error lacks merit.
By his second assignment of error, the defendant maintains that the district court abused its discretion when it sentenced him to the life sentence mandated by La. R.S. 15:529.1 without any inquiry as to whether the sentence was excessive under the facts of the case as required by State v. Dorthey, 623 So.2d 1276 (La. 1993). He urges that the district court erred in finding that it had no discretion to impose a lesser sentence.
However, the record shows that defense counsel neither objected when the court imposed the life sentence following the multiple offender adjudication nor did he file a motion to reconsider sentence as mandated by La.C.Cr.P. art. 881.1. This court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim regarding his sentence on appeal. State v. Wilson, 2006-1421, p. 16 (La. App.3/28/07), 956 So.2d 41, 51; State v. Rodriguez, 2000-0519, p. 14 (La.App. 4 Cir. 2/14/01), 781 So.2d 640, 649; State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775.
In State v. Rice, 2001-0215, p. 5-6, (La. App. 4 Cir. 1/16/02), 807 So.2d 350, 354, this court reviewed the nature of the habitual felony offender sentencing scheme and the standard for departing from it:
Prior to being sentenced, the defendant addressed the court. He stated that he was fifty-three years old and that he is a high school graduate. He worked three jobs since his release from prison two years ago. The defendant urged that he never hurt anyone during any of his crimes and that he was never found with a weapon. He also stated that he has an unspecified illness and that he has children and grandchildren. Finally, the defendant argued that he only committed a theft upon the victims here.
None of the mitigating factors presented by the defendant overwhelms the presumption that the legislatively-mandated sentence was appropriate. His two prior convictions were for simple robbery and armed robbery. In the case at hand, the defendant implied that he had a weapon and threatened to shoot the victims.
Notably, the defendant committed his offense after the effective date of the amendments reducing the mandatory minimum sentence for habitual offenders. Thus, even after the legislature decided to reduce sentences for a variety of offenses and offenders by passing Act 403, a life sentence was still the minimum which could be imposed on the defendant under La. R.S. 15:529.1(A)(2)(b)(i)(ii). The life sentence was mandatory because the instant felony conviction and two of his prior felony convictions were crimes of violence as defined by La. R.S. 14:2(13). Thus, despite his attempt to present mitigating factors to the court, the defendant failed to provide substantial evidence that exceptional circumstances justified a downward departure from the mandatory term of life imprisonment. See State v. Trackling, 2007-0068 (La.App. 4 Cir. 5/16/07), 958 So.2d 1209. Accordingly, the district court did not err when it imposed a life sentence.
By his third assignment of error, the defendant contends that the evidence presented at the multiple bill hearing was insufficient because the State failed to present a contemporaneous record of his prior guilty plea colloquies.
The record contains no written response to the multiple bill as required by La. R.S.
In his first pro se assignment of error, the defendant asserts that the state knowingly presented the perjured testimony of Mrs. Socha to prove that she had immediate control over the wallet when she testified that she may have had a finger on the wallet as it lay on the counter at McDonald's. He urges that her testimony conflicts directly with the video tape of the incident that was played for the jury. He also claims that her testimony conflicts with the motion hearing testimony of Sergeant Young wherein Sergeant Young testified that the wallet was placed on the counter momentarily while Mrs. Socha talked to the cashier. The defendant insists that the state's sole purpose for using the alleged perjured testimony was to upgrade a misdemeanor theft to a felony and subsequently charge him as a multiple offender.
Where a prosecutor allows a state witness to give false testimony without correction, a reviewing court must reverse the conviction if the witness's testimony reasonably could have affected the jury's verdict, even if the testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); State v. Broadway, 96-2659, p. 17 (La.10/19/99), 753 So.2d 801, 814; State v. Williams, 338 So.2d 672, 677 (La.1976). To prove a Napue claim, the defendant must show that the prosecutor acted in collusion with the witness to facilitate false testimony. Broadway, 96-2659, p. 17, 753 So.2d at 814. Furthermore, fundamental fairness, i.e., due process, is offended "when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue, 360 U.S. at 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217. When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the prosecution knew they were false; and (3) the statements were material. United States v. O'Keefe, 128 F.3d 885, 893 (5 Cir.1997).
Nothing that the defendant presents reflects that the state acted in collusion with Mrs. Socha when she testified that she "may" have had a finger on the wallet. Also, as previously referenced herein, Mrs. Socha was not required to be in physical control of the wallet when it was snatched. Thus, her statement that she may have had a finger on the wallet was not material and did not affect the outcome of the trial.
The defendant's second pro se assignment of error maintains that the district court erred by denying his motions for new trial and post-verdict judgment of acquittal on the grounds that the evidence was insufficient. This assignment of error was also raised by defense counsel. We find that it lacks merit for the reasons previously discussed herein.
The defendant argues in his third pro se assignment of error that the bill of
A post-verdict attack on the sufficiency of an indictment does not provide grounds for setting aside a conviction unless the indictment failed to give fair notice of the offense charged, or failed to set forth any identifiable offense. State v. Cavazos, 610 So.2d 127 (La.1992). The Louisiana Code of Criminal Procedure article 464 provides:
In the present case, the defendant was charged with a violation of La. R.S. 14:65.1. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.
Count one of the bill of information alleged that the defendant "committed theft of a wallet from the person or within the immediate control of Traci Socha, by use of force, intimidation, or by snatching."
While the bill of information does not track the exact language of the statute or cite the statute, it gives fair notice of the crime of which the defendant was charged and ultimately convicted, that is, purse snatching. Thus, the bill of information complies with La.C.Cr.P. article 464 in that it did not mislead defendant to his prejudice. This assignment of error also lacks merit.
For the foregoing reasons, we affirm the defendant's conviction and sentence.
