Date: 12-11-2016

Case Style:

Case Number: 16-KA-295

Judge: Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney:

Paul D. Connick, Jr.
Terry M. Boudreaux
Thomas J. Butler
Edward C. Milner, III
Shannon K. Swaim

Defendant's Attorney:

Bruce Whittaker

Description: Chicwanda Forbes was initially charged as a co-defendant for the second
degree murder of the victim, Crystal St. Pierre; however, in return for her
testimony against defendant in this case, she pleaded guilty to second degree
kidnapping and received a fifteen-year prison sentence. At trial, Forbes testified
that she regularly visited defendant at his residence in the Cedar Point apartment
complex in Algiers, Louisiana. On June 10, 2010, she went with defendant to a
Winn Dixie in Algiers to purchase groceries. Defendant tried to pay for the
groceries with a food stamp card, but he did not have a valid PIN number.2 Forbes
explained that the victim gave defendant the card. After multiple failed attempts at
using the card, defendant became “angry” and attempted to call the victim to
determine her whereabouts. Forbes and defendant then drove back to his
apartment complex. Once there, they located the victim at Lavelle Davis’
apartment, which was a few doors down from defendant’s apartment.
Forbes testified that defendant was very angry and beat on Davis’ door until
Davis opened it. The victim exited the apartment and Forbes punched her. They
then brought the victim to defendant’s vehicle. Forbes admitted the victim was not
free to leave. Forbes sat in the back seat with the victim while defendant drove.
As they drove, defendant argued with the victim about the food stamp card and
told her that “she’s going to die and he going to kill her.” Ms. Forbes testified that
defendant drove to a location off the road and into a field. Defendant stopped,
opened the back door and instructed Forbes and the victim to exit the vehicle.
According to Forbes, defendant then grabbed the victim, pushed her down to her
knees, and shot her in the head. Forbes described the gun used as a .38 revolver.
After shooting the victim, Forbes and defendant drove around for a couple of
hours while defendant made various phone calls. Forbes testified that defendant
called his daughter, but she told him not to come to her house because the police
were there. Forbes further testified that when she told defendant she wanted to go
home, he told her “[y]ou’re not going home for a while.” They then drove to
Bassfield, Mississippi, to stay with some of defendant’s relatives.3 During their
stay, Forbes attempted to leave, but defendant struck her on her head, lip and eye.
2 Terence Foster, a fraud investigator for the Louisiana Department of Children and Family Services, verified that records for a food stamp card issued to Crystal Roper indicated repeated attempts to use the card with an incorrect PIN number on June 10, 2010, at a Winn Dixie store in Algiers.

3 Acia Burnes testified that in June 2010, defendant and Forbes came to stay with him at his house in Bassfield. Defendant has a son, Curtis Burnes, Jr., with Acia’s daughter. Acia testified that while they were at this house, defendant and Forbes had a physical confrontation and Acia demanded they leave his house. Defendant and Forbes then stayed in a trailer across the road from Acia’s house, which is owned by Anner Burnes, Acia’s niece.


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Defendant then threatened Forbes, telling her he was going to kill her and that he
did not trust her. After four days in Bassfield, defendant’s son, Curtis Burnes,
drove defendant and Forbes to a bank in Covington, Louisiana, to cash a check.
When they returned to Bassfield, defendant and Forbes were arrested.
Cedar Point apartment manager, Lavelle Davis, testified that she had a close
relationship with the victim, and was also familiar with defendant and Forbes
because defendant lived in the apartment complex. Davis testified that on the day
of the murder, defendant called her a few times, but she did not answer. A short
time later there was banging on her front door. When Davis opened the door,
defendant stated, “where’s that b***h.” When Davis inquired as to who he was
talking about, defendant told her he wanted Crystal to come outside. The victim
then came to the door and told Davis not to worry and that she would take care of
the situation. As the victim exited Davis’ apartment, Forbes grabbed her by her
hair and began punching her in the head and beating her as they went down the
stairs. Davis then heard defendant demand that the victim give him his money.
When Davis tried to intervene, defendant lifted his shirt, revealing what Davis
believed to be the handle of a gun.
Sheridan Flax was drinking coffee with Davis at her apartment on June 10,
2010. He was in the bathroom when he heard banging at the door. He then heard
a man “screaming for somebody” and yelling about money. Flax thought about
intervening, but observed the man make a gesture which suggested he might be
armed. Flax went to a bedroom window and watched as the victim attempted to
escape from defendant’s vehicle, but was pulled back into the car by a black
female. Flax got into his car and followed defendant’s vehicle. He wrote down the
license plate number and called the police.
Officer Michael Washington of the New Orleans Police Department testified
that he was dispatched to the Cedar Point apartment complex in response to a


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possible kidnapping of a white female by a black male and female driving a
vehicle with the license plate number SIU617. He was unable to locate the vehicle
at the apartment complex, but upon running the plate, discovered that the vehicle
was registered to Tatiana and Eric Narcese. It was later learned that Tatiana
Narcese is defendant’s daughter.
Detective Gary Barteet of the Jefferson Parish Sheriff’s Office testified that
he responded to a call the following day on June 11, 2010, regarding a body found
in a wooded area in Avondale, Louisiana. Detective Barteet’s first lead in the case
was developed on June 14, 2010, when his office received an anonymous call,
leading him to interview Ms. Davis. Through speaking with Davis, Detective
Barteet identified defendant and Forbes as suspects in the victim’s murder.
Detective Barteet obtained defendant’s cell phone number, and through his phone
records, discovered that defendant’s cell phone was used in the vicinity of the
crime scene near the time of the homicide.
In addition, Federal Bureau of Investigation Agent William Williams
testified as an expert in historical cell site analysis. Agent Williams explained that
the phone registered to defendant used a cell phone tower near the Winn Dixie on
Holiday Drive in Algiers at 10:46 a.m. on June 10, 2010. Agent Williams further
testified that on the same morning, defendant’s cell phone was used at 10:58 a.m.
in close proximity to the Cedar Point apartment complex, where the victim was last
seen before her murder. Agent Williams explained that after 11:00 a.m.,
defendant’s cell phone demonstrated movement; specifically, at 11:11 a.m., the
phone utilized a tower situated at the base of the Crescent City Connection in
Algiers, approximately a mile from the Cedar Point apartments. At 11:17 a.m., the
phone utilized a cell phone tower in Harvey, and at 11:22 a.m., it utilized a cell
phone tower near Westwego. The next call at 11:37 a.m. placed defendant’s cell
phone further west along Highway 90, in the Waggaman area, approximately four


16-KA-295 5
hundred yards from where the victim’s body was located. After 12:12 p.m. on
June 10, 2010, the cell phone records for defendant’s phone indicated the cell
phone could no longer be located.
Dr. Fraser MacKenzie, expert in the field of forensic pathology, performed
the victim’s autopsy on June 12, 2010. Dr. MacKenzie testified the victim
sustained a gunshot wound to the back of her head and bruises on the front of the
head near the right forehead and the right upper eyelid. A copper jacket and lead
projectile were recovered from the victim’s skull. Dr. MacKenzie opined that the
victim died from a gunshot wound to the head as a result of a homicide. Dr. Erin
Watson, an expert in forensic entomology, explained that her analysis of the insect
development on the victim’s body indicated she died sometime during the daylight
hours of June 10, 2010.
Captain Dennis Thornton of the Jefferson Parish Sheriff’s Office also
participated in the murder investigation. Captain Thornton identified numerous
photographs depicting evidence recovered from the scene of the crime, including
tire track impressions. Joel O’Lear, an expert in the field of tire track examination,
compared tire track impressions obtained from the scene to the tires from
defendant’s vehicle, and determined they matched the rear passenger-side tire from
defendant’s vehicle.
After defendant and Forbes were apprehended in Mississippi, Forbes
provided a statement to Detective Barteet. Forbes informed him that defendant and
the victim had a dispute over a food stamp card, which led him to retrieve the
Winn Dixie surveillance video showing defendant’s attempted use of the food
stamp card at the checkout counter. In addition, a search of defendant’s apartment
uncovered .38 caliber ammunition. Jene Rauch, an expert in the field of firearm
and toolmark examination, testified that she analyzed the copper jacket and lead
projectile recovered during the victim’s autopsy, as well as the ammunition


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recovered pursuant to the search conducted at defendant’s residence. The
ammunition recovered from defendant’s residence were .38 caliber special rounds,
which are used in a revolver. She further found the ballistic materials from the
autopsy were consistent with .38 caliber ammunition, capable of being fired from a
revolver.
DISCUSSION
Defendant raises two assignment of error on appeal. In his first assignment
of error, defendant argues that the trial court erred in denying his motion to quash
the indictment filed against him because it is constitutionally deficient. In his
second assignment of error, he argues that the evidence was insufficient to support
the verdict against him.
When the issues on appeal relate to both the sufficiency of the evidence and
one or more trial errors, the reviewing court should first determine the sufficiency
of the evidence by considering the entirety of the evidence. State v. Hearold, 603
So.2d 731, 734 (La. 1992). If the reviewing court determines the evidence was
insufficient, then the defendant is entitled to an acquittal, and no further inquiry as
to trial errors is necessary. Id. Therefore, we first address defendant’s second
assignment of error regarding the sufficiency of the evidence.
Defendant argues that credible evidence of guilt is lacking in this case. He
contends the only evidence connecting him to the victim’s death is the testimony of
Forbes, who received a plea bargain in exchange for her testimony against him.
Defendant states that it is irrational to find that Forbes’ testimony establishes his
guilt beyond a reasonable doubt under the circumstances of this case.
Accordingly, defendant contends the evidence is insufficient to support the verdict
of second degree murder.
The State responds that defendant’s assigned error does not contest the
elements necessary to prove second degree murder, but only concerns Forbes’


16-KA-295 7
credibility. The State notes the credibility of a witness is strictly a matter for the
trier of fact and that the jury was aware of defendant’s argument regarding Forbes’
motivation for testifying. The State asserts the jury was informed that Forbes was
originally charged with second degree murder and was permitted to plea to a
fifteen-year sentence for second degree kidnapping in exchange for her testimony
against defendant. The State further notes the defense fully cross-examined Forbes
regarding her motivations for testifying at trial. The State contends the jury made a
credibility determination and believed the State’s case over that of the defense.
The State also maintains that it established defendant’s guilt not only with
Forbes’ testimony, but also with corroborating evidence and testimony from
several other witnesses. It contends a rational fact-finder, after viewing the
evidence in the light most favorable to the prosecution, could have found beyond a
reasonable doubt that defendant was guilty of second degree murder.
The appropriate standard of review for determining the sufficiency of the
evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). According to Jackson, the reviewing court must decide, after
viewing the evidence in the light most favorable to the prosecution, whether any
rational trier of fact could have found the defendant guilty beyond a reasonable
doubt. Id. at 319; see also State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922,
930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v.
Holmes, 98-490 (La. App. 5 Cir. 3/10/99), 735 So.2d 687, 690.
Evidence may be either direct or circumstantial. Circumstantial evidence
consists of proof of collateral facts and circumstances from which the existence of
the main fact can be inferred according to reason and common experience. State v.
Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When
circumstantial evidence is used to prove the commission of an offense, La. R.S.
15:438 provides that “assuming every fact to be proved that the evidence tends to


16-KA-295 8
prove, in order to convict, it must exclude every reasonable hypothesis of
innocence.” State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675,
writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a separate test from
the Jackson standard but rather provides a helpful basis for determining the
existence of reasonable doubt. Id. All evidence, both direct and circumstantial,
must be sufficient to support the conclusion that the defendant is guilty beyond a
reasonable doubt. Id.
As it pertains to the instant case, second degree murder is defined as the
killing of a human being when the offender has specific intent to kill or to inflict
great bodily harm. La. R.S. 14:30.1. Specific intent is defined as “that state of
mind which exists when the circumstances indicate that the offender actively
desired the prescribed criminal consequences to follow his act or failure to act.”
La. R.S. 14:10(1). Whether a defendant possessed the requisite intent in a criminal
case is a question for the trier of fact, and a review of the correctness of this
determination is guided by the Jackson standard. State v. Spears, 05-0964 (La.
4/4/06), 929 So.2d 1219, 1224; State v. Gant, 06-232 (La. App. 5 Cir. 9/26/06),
942 So.2d 1099, 1111, writ denied, 06-2529 (La. 5/4/07), 956 So.2d 599. Specific
intent may be inferred from the circumstances and from the defendant’s actions,
and the intent to kill or to inflict great bodily harm may be inferred from the extent
and severity of the victim’s injuries. Gant, 942 So.2d at 1111. The act of aiming a
lethal weapon and discharging it in the victim’s direction supports a finding by the
trier of fact that the defendant acted with specific intent to kill. Id. In addition,
flight and attempt to avoid apprehension are circumstances from which a trier of
fact may infer a guilty conscience. Id.
In addition to proving the statutory elements of the charged offense at trial,
the State is required to prove the defendant’s identity as the perpetrator. State v.
Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012,


16-KA-295 9
128 S.Ct. 537, 169 L.Ed.2d 377 (2007). “‘As a general matter, when the key issue
is the defendant’s identity as the perpetrator, rather than whether the crime was
committed, the [s]tate is required to negate any reasonable probability of
misidentification.’” Id. (quoting State v. Neal, 00-674 (La. 6/29/01), 796 So.2d
649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)).
As explained above, defendant maintains the only testimony connecting him
to the victim’s murder is from Forbes who lacks credibility because she entered
into a plea bargain with the State. The credibility of witnesses presenting
conflicting testimony on factual matters is within the sound discretion of the trier
of fact. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The
trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict
in testimony, is free to accept or reject, in whole or in part, the testimony of any
witness. Id. It is not the function of the appellate court to second-guess the
credibility of witnesses as determined by the trier of fact or to reweigh the
evidence absent impingement on the fundamental due process of law. Id. “[T]he
Jackson standard does not serve as a vehicle for a reviewing court to second guess
the rational credibility determinations of the fact finder at trial.” State v. Miller,
11-498 (La. App. 5 Cir. 12/13/11), 84 So.3d 611, 617, writ denied, 12-176 (La.
9/14/12), 97 So.3d 1012.
Moreover, in the absence of internal contradiction or irreconcilable conflicts
with physical evidence, the testimony of one witness, if believed by the trier of
fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La. App. 5 Cir.
3/11/08), 982 So.2d 146, 153, writ denied, 08-987 (La. 1/30/09), 999 So.2d 745. A
jury may also convict upon a co-defendant’s uncorroborated testimony. State v.
Matthews, 450 So.2d 644 (La. 1984); State v. Hopkins, 39,258 (La. App. 2 Cir.
3/2/05), 897 So.2d 854, 862, writ denied, 05-1238 (La. 12/16/05), 917 So.2d 1107.
An accomplice is qualified to testify against a co-perpetrator even if the


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prosecution offers him inducements to testify and such inducements would merely
affect the witness’s credibility. Hopkins, 897 So.2d at 862. A conviction can even
be based on the uncorroborated testimony of an accomplice or of someone making
a plea bargain with the government, provided the testimony is not incredible or
otherwise insubstantial on its face. Neal, 796 So.2d at 659.
At trial, both the State and defense detailed for the jury Forbes’ favorable
plea agreement. Forbes testified that on June 10, 2010, she accompanied defendant
to a Winn Dixie store to purchase groceries using a food stamp card given to
defendant by the victim. When the card was declined due to an invalid PIN,
defendant became angry and tracked the victim down at Lavelle Davis’ apartment
in the Cedar Point apartment complex. Forbes admitted that she and defendant
forced the victim into defendant’s vehicle, where she was not free to leave. Forbes
kept watch over the victim while defendant drove, telling the victim he was going
to kill her. Once in a secluded location, defendant instructed the victim to exit the
vehicle, pushed her to the ground, and shot her in the head with a .38 revolver.
Forbes and the victim then fled to Bassfield where they stayed with defendant’s
relatives until they were apprehended.4
By returning a guilty verdict, the jury obviously believed Forbes’ testimony.
Forbes’ testimony was not incredible or insubstantial on its face. Forbes’
testimony at trial was consistent with the physical evidence presented and clearly
demonstrated defendant and Forbes’ roles in the murder of the victim. Forbes’
testimony alone was sufficient to sustain defendant’s conviction of second degree
murder and there is no basis under the prevailing standard of appellate review to
conclude her testimony could not have been believed by a reasonable jury.

4 As previously noted, a defendant’s flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Cazenave, 00-183 (La. App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La. 10/26/01), 799 So.2d 1151.


16-KA-295 11
In addition, other State witnesses’ testimony corroborating Forbes’ account
of the events, as well as physical evidence introduced by the State at trial, establish
beyond a reasonable doubt that sufficient evidence was presented to support the
jury’s verdict. Video surveillance footage from the Winn Dixie store in Algiers, as
well as the testimony of Terence Foster of the Louisiana Department of Children
and Family Services, confirmed that on June 10, 2010, defendant and Forbes
attempted to purchase groceries using a food stamp card issued to the victim but
were unsuccessful.
Lavelle Davis testified that on the morning of the murder, defendant had
called her before coming to her apartment and banged on her front door. Davis
described defendant as mad when he demanded the victim exit Davis’ apartment.
Davis confirmed that when the victim went outside, Forbes punched the victim
before forcing her down the stairs. She further testified that she could hear
defendant demanding money from the victim. Sheridan Flax also testified that he
watched as the victim was forced into defendant’s vehicle. Both Davis and Flax
further testified that based on their observations, they believed defendant was
armed.
Defendant’s cell phone records also tracked defendant’s movements
beginning at the Winn Dixie store in Algiers at 10:46 a.m. on June 10, 2010, to the
Cedar Point apartment complex, where the victim was last seen. The cell phone
records ended at 11:37 a.m. in the Waggaman area west along Highway 90, four
hundred yards from where the victim, who had sustained a gunshot wound to the
head, was located. Forensic entomologist, Dr. Watson, further confirmed the
timeline of events, testifying that based on the insect development recovered from
the body, the victim died sometime during the daylight hours of June 10, 2010.
Additionally, physical evidence found at the scene included a tire track impression
matching one of the tires on defendant’s vehicle, and the ballistic materials from


16-KA-295 12
the autopsy were consistent with the .38 ammunition seized from defendant’s
apartment.
Thus, even discounting Forbes’ testimony, for the above reasons, we find
that a rational trier of fact could have still found, under the Jackson standard, that
the evidence was sufficient to support the second degree murder verdict. Based on
the foregoing, this assigned error is without merit. 5
In his other assignment of error, defendant argues the trial court erred in
denying his motions to quash the indictment on the basis that the second degree
murder charge was constitutionally deficient. In his motions to quash, defendant
argued that the charge, which utilized the short form indictment, was deficient
because it failed to specify whether the grand jury indicted defendant on the
specific intent theory or the felony murder theory of second degree murder.
In response, the State maintains that the trial court did not abuse its
discretion in denying the motions since defendant was properly charged with a
short form indictment and was well aware of the charges against him.
Article I, Section 13 of the Louisiana Constitution requires that an
indictment inform a defendant of the nature and cause of the accusation against
him. State v. Chairs, 12-363 (La. App. 5 Cir. 12/27/12), 106 So.3d 1232, 1240,
writ denied, 13-306 (La. 6/21/13), 118 So.3d 413. This requirement is
implemented by La. C.Cr.P. art. 464, which provides:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.


5 Because defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction, the sufficiency of the evidence with respect to the statutory elements need not be addressed. See State v. Henry, 13-558 (La. App. 5 Cir. 3/26/14), 138 So.3d 700, 715, writ denied, 14-962 (La. 2/27/15), 159 So.3d 1064; State v. Ramirez, 09-350 (La. App. 5 Cir. 12/29/09), 30 So.3d 833, 840.



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La. C.Cr.P. art. 465 authorizes the use of specific short form indictments in
charging certain offenses, including second degree murder.6 Chairs, 106 So.3d at
1240. Both this Court and the Louisiana Supreme Court have consistently upheld
the constitutionality of these short forms. Id. (citing Draughn, 950 So.2d at 624).
This Court has held that a post-verdict attack on the sufficiency of an indictment
should be rejected unless the indictment failed to give fair notice of the offense
charged or failed to set forth any identifiable offense. State v. Page, 08-531 (La.
App. 5 Cir. 11/10/09), 28 So.3d 442, 452-53, writ denied, 09-2684 (La. 6/4/10), 38
So.3d 299.
For instance, in Chairs, supra, the defendant, who had been convicted of
second degree murder, argued on appeal that the trial court erred in denying his
motion to quash the indictment. He had argued in the motion that the short form
was constitutionally deficient due to its failure to specify whether his prosecution
was being pursued under the specific intent theory or the felony murder theory of
second degree murder. Chairs, 106 So.3d at 1240. His indictment read in
pertinent part: “. . . on or about the 8th day of November, 2009, the said ROGER
D. CHAIRS . . . violated R.S. 14:30.1 in that [he] did commit second degree
murder of a known juvenile (DOB 4/29/2002).” Id. at 1241.
This Court determined that the defendant in Chairs was fully aware of the
nature of the charges against him and concluded that the trial court did not abuse
its discretion in denying the defendant’s motion to quash. Id. In reaching this
conclusion, this Court noted that the indictment conformed to the short form
provided in La. C.Cr.P. art. 465 and that the defendant was provided with ample
discovery, including police reports, arrest warrants, search warrants, crime lab

6 The short form for second degree murder is provided in La. C.Cr.P. art. 465(A)(32), which provides: “A.B. committed second degree murder of C.D.”


16-KA-295 14
reports, and statements of witnesses and co-defendants to understand the charge
against him. Id.
In the instant case, the indictment complied with the short form in La.
C.Cr.P. art. 465(A)(32), as it provided: “Curtis L. Kyles. . . on or about the 10th
day of June in the year of our Lord, Two Thousand and Ten with force and arms,
in the Parish aforesaid, and within the jurisdiction of the Twenty-Fourth Judicial
District Court of Louisiana, in and for the Parish aforesaid, violated R.S. 14:30.1 in
that they7 did commit second degree murder of Crystal St. Pierre.” Moreover,
when a short form indictment is used, it is intended that the defendant use a bill of
particulars to procure details as to the statutory method by which he committed the
offense. Page, 28 So.3d at 453. On October 28, 2010, defendant filed a Motion
for Bill of Particulars, Discovery, and Inspection. The record indicates the State
provided to the defense, among other things, police reports, arrest warrants, search
warrants, crime lab reports, phone records, and statements of witnesses. Defendant
does not contend that he was unable to determine the specifics of the charge
against him through discovery.
In view of the foregoing, we determine that defendant received fair notice of
the offense charged and was made fully aware of the nature of that charge against
him. Accordingly, the trial court did not abuse its discretion in denying
defendant’s motion to quash. This assignment of error is without merit.
ERRORS PATENT DISCUSSION
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5 Cir. 1990). The following error patent merits attention.
The commitment reflects that defendant was given a proper advisal of the
time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8;
however, the transcript indicates that the trial court provided defendant with an
incomplete post-conviction relief period advisal. Specifically, following
sentencing, the trial court advised defendant that he had “two years to seek post
conviction relief after this judgment is complete.” The transcript prevails when
there is a discrepancy between the commitment and the transcript. State v. Lynch,
441 So.2d 732, 734 (La. 1983).
If a trial court fails to advise, or provides an incomplete advisal, pursuant to
La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the
defendant of the applicable prescriptive period for post-conviction relief by means
of its opinion. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d
608, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.
Accordingly, we advise defendant that no application for post-conviction
relief shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922.

Outcome: