NOT DESIGNATED FOR PUBLICATION

GUIDRY, J.

The defendant, Jacob R. Lagman, was charged by bill of information on count one with attempted first degree murder, a violation of La. R.S. 14:27 and La. R.S. 14:30, and on count two with attempted armed robbery, a violation of La. R.S. 14:27 and La. R.S. 14:64. The defendant ultimately withdrew his original pleas of not guilty and pled guilty as charged on both counts pursuant to a plea agreement. The defendant was sentenced on count one to ten years imprisonment and on count two to five years imprisonment, both sentences to be served at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court ordered that the sentences be served concurrently. Subsequently, the State filed a habitual offender bill of information, and the defendant was adjudicated a second-felony habitual offender as to count two.1 The trial court vacated the original sentence imposed on count two and resentenced the defendant on count two to twenty-four years and three months imprisonment at hard labor to be served concurrent to the sentence imposed on count one. The defendant now appeals, arguing that the trial court erred in finding that he breached the plea agreement with the State and in failing to enforce the portion of the plea agreement prohibiting the State from filing a habitual offender bill of information. For the following reasons, we affirm the convictions, habitual offender adjudication, and sentences.

STATEMENT OF FACTS

As the defendant entered guilty pleas herein and the parties at the Boykin2 hearing stipulated to the existence of a factual basis for the offenses based on discovery and pretrial conferences, the facts were not developed in the record. As noted during the Boykin hearing and stated in the bill of information, the defendant's guilty pleas are based on the offenses of attempted first degree murder and attempted armed robbery committed in St. Tammany Parish on May 1, 2010. As further indicated in the bill of information, the defendant was charged along with Keyshawn M. Hill and Charles L. Roy.

ASSIGNMENTS OF ERROR

In the related assignments of error, the defendant argues that the trial court erred in finding that he breached the plea bargain agreement with the State and in failing to enforce the plea agreement to prohibit the State from seeking a habitual offender adjudication. The defendant notes that at the time of the plea bargain, the State agreed not to file a habitual offender bill of information if the defendant cooperated with the State. The defendant argues that he complied with the agreement to cooperate by providing material information to the police about the other individuals involved in the offenses. The defendant notes that he provided a police statement shortly after his arrest and contends that the statement substantially assisted the police in solving the crimes and led to the arrests of everyone involved. The defendant further notes that he was willing to testify and that there was never a point where he was called to or refused to testify against his co-defendants. Conceding that he was rebellious toward the assistant district attorney during a meeting that took place after his guilty pleas, the defendant argues that his rebellious attitude did not amount to a breach of the plea agreement. The defendant contends that he was suffering from a recent physical attack, notes that his lawyer was not present at the meeting, and argues that the State's witness who was present at the meeting, Deputy Latisha Gordon, was not an impartial witness, since she worked for the assistant district attorney. The defendant also notes that the record does not show that the State defined or explained his duty to cooperate. Under the circumstances, the defendant argues that the plea agreement should be enforced.

A criminal plea agreement is analogous to a civil compromise. See La. C.C. art. 3071 et seq.; State v. Roberts, 01-3030, p. 6 (La. App. 1st Cir. 6/21/02), 822 So.2d 156, 160, writ denied, 02-2054 (La. 3/14/03), 839 So.2d 31. Thus, in determining the validity of agreements not to prosecute or plea agreements, the courts generally refer to rules of contract law. State v. Louis, 94-0761, p. 7 (La. 11/30/94) 645 So.2d 1144, 1148. The first step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. See La. C.C. art. 1927. Under the Louisiana Civil Code, the interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. The offer and acceptance may be verbal unless the law prescribes a requirement of writing. Louis, 94-0761 at p. 10, 645 So. 2d at 1149. Moreover, the obligation may be dependent upon an uncertain event. See La. C.C. art. 1767. While contractual principles may be helpful by analogy in deciding disputes involving plea agreements, the criminal defendant's constitutional right to fairness may be broader than his or her rights under contract laws. State v. Canada, 01-2674, pp. 3-4 (La. App. 1st Cir. 5/10/02), 838 So.2d 784, 787 (quoting Louis, 94-0761 at p. 7, 645 So. 2d at 1148).

A guilty plea is constitutionally infirm if a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. In such cases, the guilty plea was not given freely and knowingly. State v. West, 97-1638, p. 3 (La. App. 1st Cir. 5/15/98), 713 So.2d 693, 695. Under the substantive criminal law, there are only two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea. Canada, 01-2674 at p. 5, 838 So. 2d at 788 (quoting Lewis v. State, Department of Public Safety and Corrections, 602 So.2d 68, 74 (La. App. 1st Cir.), writ denied, 604 So.2d 1312 (La. 1992). The party demanding performance of a contract has the burden of proving its existence. In the context of plea bargains, a defendant may demand specific performance of the State's promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. State v. Givens, 99-3518, p. 15 (La. 1/17/01), 776 So.2d 443, 455. Since a plea agreement is analogous to a contract that is formed by the consent of the parties established through offer and acceptance, any amendment or change to the agreement also must require the mutual consent to the change or amendment; without mutual consent to the change or amendment, the parties are not bound by it. See Canada, 01-2674 at p. 8, 838 So. 2d at 790.

At the November 4, 2010 Boykin hearing, the trial court questioned the defendant as to his level of education. The defendant noted that he was unable to read and write but stated that he fully understood the proceedings. The trial court inquired as to whether there were any threats, coercion, or promises other than the plea agreement, and the defendant responded negatively. The trial court read the statutes for the offenses, including the penalty provisions. The trial court also explained the habitual offender law and the possibility that the guilty pleas could be used against the defendant in the future. The trial court fully explained the defendant's Boykin rights. A waiver of rights form was further executed. After the trial court accepted the defendant's guilty pleas and imposed the sentences, the assistant district attorney, Julie Knight, stated: "I also forgot to put on the record I reserve my right to come back and file a bill on Mr. Lagman, if by chance he also does not cooperate, which is why I agreed not to bill him." The trial court then asked the defendant if he heard the assistant district attorney's statement and the defendant stated, "I understand." The assistant district attorney also noted her request that the defendant not be housed with the co-defendants.

Subsequently, on May 27, 2011, the State filed a habitual offender bill of information seeking to enhance the sentence imposed on count two. At the adjudication hearing on August 8, 2011, Knight introduced the transcript of the November 4, 2010 Boykin hearing, noting that the agreement not to file a habitual offender bill of information was dependent upon the defendant's duty to cooperate with the State. Knight specifically stated, "He had given a taped recorded statement that he acknowledged in the courtroom that day. When pulled up for court, he refused to testify and said, `give me as much time as you want,' and he would not cooperate." Knight then called a witness regarding the evidence of the predicate offense. Before resting, the State noted that while the defendant had other predicate convictions, evidence was offered as to only one predicate.

The defense counsel called the defendant to the stand. The defendant testified that he recalled having been brought from the state institution back to court, stating, "I recall being brought down here with no notification of testimony." The defendant stated that he was brought directly to Knight's office and admitted that he was "rebellious towards Ms. Knight," adding that he did not want to listen to what she had to say because he had already provided post arrest statements. The defendant further stated:

When asked if he refused to testify, the defendant stated, "No. No, I never."

During cross-examination the following colloquy took place between the defendant and Knight:

As a rebuttal witness, Knight called Deputy Gordon, who escorted the defendant to the district attorney's office on the day of the meeting in question. Deputy Gordon confirmed that she was present for the entire meeting, and that the defendant was belligerent and unwilling to talk. Specifically regarding the defendant's intentions as to whether he would testify, Deputy Gordon stated, "He pretty much said that he can't believe you called him up there for that. And you can do whatever you've got to do, because he's not testifying. He already got his time."

In adjudicating the defendant a habitual offender, the trial court noted that after the defendant pled guilty as charged, he was sentenced to five- and ten-year hard labor sentences without the benefit of parole, probation, or suspension of sentence and that the sentences were to be served concurrent with each other. The trial court added, "Which was part of the plea deal that specifically stated he was to cooperate insofar as, not just the cooperation given before in informing the police about the identity of his co-defendants, but including testifying against them at trial, both in the transcript of that plea into the Minute entry in this Court." The trial court noted that the State clearly reserved the right to pursue a habitual offender adjudication if the defendant did not cooperate and concluded that based on the testimony presented at the hearing, the defendant did not cooperate when the case came up for trial. The trial court noted that the defendant's refusal to testify could be considered "moot," since Hill ultimately entered a guilty plea. Knight seemingly indicated that the defendant's refusal to testify led to the State offering Hill a deal, stating in part, "I offered a deal to another co-defendant. I could not prove the case without him alone." The trial court then considered the evidence presented by the State on the defendant's predicate offense, and the defendant was adjudicated a second-felony habitual offender.

In this case, the defendant concedes that the trial court used common sense and custom as the basis for interpreting the plea agreement's condition of cooperating with the State as requiring the defendant to testify for the State in a subsequent case against a co-defendant. This interpretation is further supported by the transcript of the November 4, 2010 Boykin hearing, wherein further cooperation by the defendant was contemplated by the parties. Additionally, the defendant did not contest this interpretation below, which was clearly consistent with the common understanding of the parties. As noted by the trial court, the record is further clear that in the event of a breach by the defendant of the plea agreement, the State reserved the right to file a habitual offender bill of information. Before accepting the defendant's guilty pleas, the trial court fully informed the defendant regarding the enhancement of convictions under the habitual offender law. The only issue contested is whether or not the defendant refused to testify. Based on the defendant's own testimony, he was being "rebellious" and did not want to talk to the assistant district attorney when she had him brought to the district attorney's office to go over his testimony. Whether or not the defendant specifically stated he would not testify, he clearly left the assistant district attorney with no choice but to conclude as such. Moreover, there was testimony by Deputy Gordon at the adjudication hearing that the defendant specifically stated during the meeting in the district attorney's office that he would not testify. We find that the trial court reasonably concluded that the defendant voluntarily and unilaterally breached the terms of the plea bargain with the State. Considering the foregoing, the trial court did not err in allowing the State to exercise its reserved right to seek a habitual offender adjudication based on the defendant's breach of the terms of the plea agreement. The assignments of error lack merit.

PATENT ERROR

In accordance with La. C.Cr.P. art. 920(2), all appeals are reviewed for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found the following sentencing error. Pursuant to La. R.S. 14:27(D)(3) and La. R.S. 14:64(B), on the underlying offense for the guilty plea on count two, attempted armed robbery, the defendant was subject to a sentence of up to forty-nine and one-half years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.3 Louisiana Revised Statutes 15:529.1(A)(1) provides that a second-felony offender's sentence shall be for a determinate term of not less than one-half the longest term and not more than twice the longest term for the underlying offense. Thus, pursuant to La. R.S. 14:27(D)(3), La. R.S. 14:64(B), and La. R.S. 15:529.1(A)(1), the minimum term of imprisonment for an adjudicated second-felony offender convicted of attempted armed robbery is twenty-four years and nine months at hard labor. In this matter, after adjudicating the defendant a second-felony habitual offender on count two and vacating the original sentence, the trial court resentenced the defendant on count two to twenty-four years and three months imprisonment at hard labor, to be served without benefit of probation or suspension of sentence. We find this sentence is illegally lenient, because the sentence imposed is six months less than the statutory minimum sentence. However, this sentencing error is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised the sentencing issue on appeal. Thus, we decline to correct the sentence. See State v. Price, 05-2514, p. 18-22 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So.2d 1277.4

HABITUAL OFFENDER ADJUDICATION AND SENTENCES AFFIRMED.