Opinion
NO. 23-KA-59
03-20-2024
STATE of Louisiana v. Anthony C. ROBINSON
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Monique D. Nolan, Kellie M. Rish, Christina Fisher COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY C. ROBINSON, Lieu T. Vo Clark DEFENDANT/APPELLANT, ANTHONY C. ROBINSON, In Proper Person
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 18-7551, DIVISION "C", HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Monique D. Nolan, Kellie M. Rish, Christina Fisher
COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY C. ROBINSON, Lieu T. Vo Clark
DEFENDANT/APPELLANT, ANTHONY C. ROBINSON, In Proper Person
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Timothy S. Marcel
MARCEL, J.
1Defendant, Anthony Robinson, appeals his conviction of second-degree rape in violation of La. R.S. 14:42.1. On appeal, he argues three counseled assignments of error and two pro se assignments of error. For the following reasons, we affirm defendant’s conviction and sentence. We further remand the matter with instructions to the trial court as more fully set forth in our Error Patent Review below.
PROCEDURAL HISTORY
On January 30, 2019, the Jefferson Parish District Attorney filed a bill of information charging defendant, Anthony C. Robinson, with one count of second-degree rape in violation of La. R.S. 14:42.1, occurring on or about December 1, 2018. Defendant was arraigned and entered a plea of not guilty on the same day. On November 16, 2021, defendant informed the trial court of his desire to represent himself at trial. The trial court conducted a hearing on the request and determined defendant knowingly, intelligently, and competently waived his right to counsel. Attorney Powell Miller was assigned by the trial judge as defendant’s standby counsel.
The case proceeded to trial on December 6, 2021. On December 9, 2021, the twelve-person jury returned a unanimous verdict of guilty as charged.
On January 6, 2022, defendant’s counsel filed a motion for judgment of acquittal notwithstanding the verdict and a motion for new trial. These counseled motions, which challenged the sufficiency of evidence to support defendant’s conviction of second-degree rape, were denied on January 13, 2022. On February 10, 2022, the State filed a multiple offender bill of information alleging defendant to be a second-felony offender. Thereafter, defendant filed pro se motions for post-verdict judgment of acquittal and for new trial on grounds of insufficient 2evidence to support his conviction. Those pro se motions were denied on February 15, 2022.
The trial court conducted a sentencing hearing on February 15, 2022, wherein defendant was sentenced to twenty-five years imprisonment with the Department of Corrections, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. On March 2, 2022, the trial court granted defendant’s motion for appeal filed that day. The pro se motion to reconsider sentence filed on March 14, 2022, was denied by the trial court.
On October 20, 2022, a hearing was conducted on the multiple offender bill filed by the State. The trial court adjudicated defendant a "second offender" as to count one, second degree rape; vacated the original twenty-five-year sentence; and resentenced defendant to thirty years imprisonment with the Department of Corrections under La. R.S. 15:529.1. The court further ordered that the first two years of the sentence be served without the benefit of parole, probation, or suspension of sentence. The sentence imposed was ordered to run concurrently with "any or every sentence defendant may be serving," with credit for time served. Defendant’s sentence was designated a crime of violence by the trial court.
FACTS
The victim., P.H., testified that she met defendant, Anthony Robinson, on a social media dating website in October 2017. At that time, P.H. was living with her mother and three daughters in Marrero, Louisiana, and defendant lived in Kenner, Louisiana. Four months later, in or around February 2018, P.H. and defendant began a romantic relationship, which included consensual sexual intercourse. In or around September 2018, P.H. suspected defendant of having relationships with other women who called his telephone. P.H. learned defendant moved into a house with a woman named "Diann" and was also talking to another woman named "Tara Lynn."
3On November 25, 2018, P.H. testified, she and defendant went to a show together and then went to a lot on 23rd Street in Kenner, where they engaged in consensual sex. Afterward, she and defendant got into an argument about his relationship with "Diann." P.H. testified that she tried to cut off communication with defendant afterward, describing their relationship as "just toxic," but defendant continued to call her nearly every day.
On November 30, 2018, defendant called P.H. to ask her about having sex and whether or not she had money. In her testimony regarding that call, P.H. re- called that defendant abruptly ended the telephone call after P.H. responded "no" to each question. P.H. testified that she considered the relationship over. P.H. also testified that on that same day a man performing work on her car had come to and from her residence in Marrero and to having an hours-long telephone conversation with a man named "David." In their telephone conversation, she testified that she and David discussed their plans to meet in person.
P.H. testified that she received a telephone call from defendant in the early morning hours of the following day, December 1, 2018, to discuss their relationship. Following his telephone call, defendant appeared at P.H.’s house at approximately 12:40 a.m. She met defendant outside her house, and defendant asked her to get her purse because he wanted to get a "cold drink." She retrieved her purse from inside and got in defendant’s car. According to her testimony, P.H. assumed they were going to the Exxon station near her house, because that was where defendant usually went to purchase drinks, and believed he would bring her right back home afterward.
After departing P.H.’s home, defendant drove a different route than usual to the Exxon station. P.H. testified that defendant asked her to have sex, to which she responded "no." Defendant refused to answer her questions about their 4destination. According to her testimony, defendant expressed his love for her and stated, "I don’t know how you will feel after this."
They drove into an industrial area on 23rd Street in Kenner at approximately 1:00 a.m., where defendant backed the car into a lot. All of the surrounding businesses were closed. Once parked, P.H. testified that defendant asked to whom she had been talking on the telephone. She did not mention her conversation with "David" but did disclose that she spoke to the man who had performed work on her car. At this time, P.H. recounted, defendant balled up his fist and punched her twice. P.H. testified that defendant explained the reason for hitting her was "because [she] lied to [him]." Defendant informed P.H. that he sat outside her home the day before, observing the man who performed work on her car and eaves-dropping on her telephone conversation with "David" from outside her window.
In her testimony, P.H. stated defendant was "no longer the same person she had dated." Defendant stopped hitting her, got out of the car, and instructed P.H. get out as well. After she responded "no," P.H. testified that defendant told her "[she] better get [her] ass out the car," or he would get her out. P.H. complied. Once she was outside the car, P.H. testified that defendant began punching her multiple times "like a boxer in the ring." She recalled defendant stating while hitting her, "I told you about lying to me … I’m going to show you who I really am." P.H. was able to retreat into the car and defendant got back in as well. P.H. testified that she begged defendant to leave, telling him she loved him and that "[he didn’t] have to do this." Defendant responded that he was not finished with her.
Defendant again got out of the car and demanded that P.H. get out as well. In her testimony, P.H. recounted defendant stating, "[G]et your ass out of the car." P.H. refused, telling defendant, "[L]ook, you want to have sex, we can have sex." 5She testified that she believed that she had to do something to protect herself in that moment.
P.H. testified that defendant instructed her to get out the car and remove her pants, stating, "[O]h now you want to give it to me … now you want to give it to me." Rather than do as defendant instructed, P.H. got into the back seat of the car and took her pants off. Defendant got into the back seat as well, laid on top of her, and proceeded to have sex with her. P.H. testified that she did not want to have sex with him, having rejected his prior requests, but had become scared of the defendant after being beaten twice. In her testimony, P.H. explained, "I thought sex would stop him from doing what he was doing."
Afterward, they both got out of the car. P.H. put her clothes on and got back in the car while defendant remained outside. Defendant took his belt off, placed it on the roof, and demanded her cell phone. She handed over the telephone, and defendant placed a call to "David," who did not answer. Defendant returned the telephone to P.H. and proceeded to punch her multiple times with a closed fist. P.H. testified that she got out the car, believing that defendant was going to kill her. She recalled in her testimony that she was dizzy, and stumbled as she attempted to get away. P.H. returned and re-entered the car. She testified defendant expressed his love for her and said, "I told you about lying to me.
On the drive back to her house, they stopped at the Exxon station on Manhattan Boulevard. P.H. recounted that defendant expressed his love for her and asked if she was going to call the police. In her testimony, P.H. recalled defendant repeating that he loved her and that was why he beat her, and if she called the police, he would wait in front of her house to tell them he loved her.
Once they arrived at her house, P.H. testified that she exited the car and went inside. Her daughter, Bryana, arrived home later. Bryana testified to observing her mother’s frantic and disoriented state. P.H. informed Bryana of what happened 6with defendant. After P.H. cleaned herself, Bryana took her to the Ochsner Clinic on Lapalco Boulevard in Marrero.
Dr. Dwyanda Lewis testified at trial that she was the attending physician at Ochsner Marrero who treated P.H. Dr. Lewis testified that P.H. reported involvement in an altercation where she was strack in the face multiple times with a closed fist and reported complaints of pain in her right upper face and hands. Dr. Lewis testified that P.H. displayed swelling to the upper right side of her face. The facial CAT scan displayed swelling of the right cheek, which Dr. Lewis described as consistent with being punched in the face. An X-ray of P.H.’s right hand showed a fracture of the proximal phalanx of the small finger.
Based on her examination of P.H. and the reported abuse, Dr. Lewis testified that the police were contacted regarding the possible rape. Officer Katherine Storyewski of the Kenner Police Department testified that she was the responding law enforcement officer to Ochsner Marrero. She arrived at Ochsner Marrero between 5:00 a.m. and 6:00 a.m. on December 1, 2018. In her interview with Officer Storyewski, P.H. identified defendant as the person who raped her. Photographs were taken of P.H.’s injuries, which included swelling to the cheekbones and an injury to her finger. Officer Storyewski testified that P.H. reported being struck several times by defendant prior to sexual intercourse. After interviewing P.H., Officer Storyewski notified her supervisor of the reported rape.
Dr. Lewis testified that P.H. was referred to Tulane Lakeside Hospital in Metairie for a sexual assault examination. Bryana testified to accompanying her mother to Tulane Lakeside. After an initial exam, P.H. was referred to Elizabeth Mar- lowe-Serpas, R.N., for a full sexual assault examination.
Nurse Marlowe-Serpas, a sexual assault nurse examiner, testified that she conducted a physical examination of P.H. on December 1, 2018, at Tulane Lakeside. She documented her physical findings, notes of the examination, and 7the narrative provided by P.H. on the forensic sexual assault evaluation form. Nurse Marlow-Serpas described P.H. as stable with complaints of a headache and swelling of the right cheek and left hand. Nurse Marlowe-Serpas reported P.H.’s pinky finger was splinted, and photographs were taken of her injuries. In her testimony, Nurse Marlowe-Serpas opined that it is possible to have injuries after consensual sex, but her examination findings were consistent with the history provided by P.H.
Kenner Police Department Detective Foltez testified that she appeared at Tulane Lakeside in response to a rape allegation on December 1, 2018. After debriefing from Officer Storyewski, Detective Foltez spoke with P.H. after her medical examination. Once she was discharged P.H. returned home with Bryana. Detectives met P.H. at her Marrero home where they collected her clothing and photographed the contents of P.H.’s cell phone, including defendant’s contact information and their shared call history and text messages since the attack. P.H. then left her home to stay with her sister in LaPlace, Louisiana.
Detective Foltez testified that P.H. appeared at the Kenner Police Complex where she participated in a recorded interview. P.H. reported the location of the rape as the 100 block of West 23rd Street in Kenner, Louisiana, occurring between two parked dump trucks. P.H. was presented with a copy of defendant's driver's license photograph, and she confirmed the photograph depicted the person who raped her. Based on the information obtained, an arrest warrant was issued for defendant for the crime of rape.
On December 2, 2018, while traveling to her mother’s house in Marrero, Bryana saw defendant walking on 14th Street—which is two blocks from her mother’s house—and called the police. Bryana testified that she informed responding police officers of what had occurred between her mother and the defendant. The Jefferson Parish Sheriff’s Office arrested defendant in Marrero and 8transported him to the Jefferson Parish Correctional Center. Thereafter, defendant was transferred to the Kenner Police Complex, where a buccal swab was collected for DNA testing. No injuries were observed on defendant. Defendant’s car was impounded, photographed, and processed for bodily fluids.
Marcela Zozaya, a forensic DNA analyst employed by the Jefferson Parish Sheriff’s Office (JPSO), testified to analyzing DNA evidence collected in the instant case and preparing a report of the analysis. Samples collected for analysis included those from the sexual assault examination of P.H., as well as reference samples from P.H. and from defendant. Ms. Zozaya testified that testing for seminal fluid disclosed its presence in all samples tested. Testing performed on DNA obtained from the vaginal and cervical swab collected from P.H. was consistent with being a mixture of P.H. and defendant’s DNA
After defendant’s arrest, he placed a jail telephone call to his cousin, "Fat Man," asking him to contact P.H. "Fat Man" made multiple calls to P.H. while she was staying with her sister in LaPlace.
P.H. appeared with her daughter at the Kenner Police Complex and met with Detective Foltez. She informed Detective Foltez that everything she previously reported about the incident was true but that she was having doubts about pursuing charges against defendant because she did not want him to go to jail for the rest of his life. At trial, Detective Foltez testified that P.H. never recanted prior statements of what occurred on the morning of December 1, 2018. He further testified that P.H. reported receiving telephone calls from people acting at the behest of defendant. Detective Foltez testified that he identified a three-way jail telephone call from defendant to his girlfriend and cousin, wherein defendant asked his cousin to contact P.H. At trial, P.H. testified that she received telephone calls following defendant’s arrest from his cousin "Fat Man" and continued 9receiving phone calls from others on defendant’s behalf over ten days after his arrest.
After meeting with P.H., Detective Foltez conducted a recorded interview of defendant. Defendant was read his Miranda rights from the Kenner Police Department’s Advice of Rights form, and defendant acknowledged that he understood his rights and signed the form. Detective Foltez testified that after his interview with defendant, as he was escorting him back to the jail cell, defendant "became apologetic" about what happened between him and P.H. without being specific for what he was apologizing. Defendant also informed Detective Foltez that he spoke to P.H. and that she was supposed to contact him.
ASSIGNMENTS OF ERROR
In this appeal, defendant presents five assignments of error. Two assignments of error are set forth in the appellant brief filed by counsel and three are contained in defendant’s pro se appellant brief. Counseled Assignment of Error Number One and Pro Se Assignment of Error Number One assert the evidence was insufficient to support defendant’s conviction for second degree rape. In counseled Assignment of Error Number Two and Pro Se Assignment of Error Number Three, defendant asserts that; the trial court erred in its denial of motions for post-verdict judgment of acquittal and for new trial. Finally, Pro Se Assignment of Error Number Two contends the trial court erred in denying defendant’s motion to quash.
Sufficiency of Evidence to Support Defendant’s Conviction of Second Degree Rape
Counseled Assignment of Error Number One; Pro Se Assignment of Error Number One.
[1] The first assignment of error we address is the sufficiency of evidence to support defendant’s conviction for second degree rape. Defendant contends the 10State failed to prove the elements for second degree rape beyond a reasonable doubt. Specifically, defendant avers the evidence demonstrated that P.H. consented to having sexual intercourse. Further, defendant argues that he cannot be guilty of second degree rape because sexual intercourse with P.H. was not contemporaneous with his use or threats of physical force against her.
In response, the State contends sufficient evidence was presented to support the jury’s finding that defendant committed second degree rape of P.H. The State cites P.H.’s testimony detailing defendant’s actions that morning and argues this evidence proves that P.H. did not consent to sexual intercourse. Supporting its argument, the State points out that P.H. testified to offering sex to defendant only because she thought it would stop him from repeatedly beating her.
[2–4] On appeal, a review of the sufficiency of evidence requires a determination whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189. Credibility determinations of a witness, including the victim, are within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233. 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. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691.
11In the instant matter, defendant was convicted of second degree rape, in violation of La. R.S. 14:42.1. Rape is anal, oral, or vaginal sexual intercourse without the other person’s lawful consent. La. R.S. 14:41(A). Second degree rape is defined is by La. R.S, 14:42.1. The provision of that statute for which the defendant was convicted states:
By 2015 La. Acts., Act 256, the Louisiana legislature changed the designation of the offense defined in La. R.S. 14:42.1 from "forcible rape" to "second degree rape."
A. Second degree rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
The applicable statutory definition of second degree rape identifies two situations where a victim’s lawful consent to sexual intercourse is vitiated by the use of force or the threat of physical violence. Under the first, second degree rape occurs where the victim is forcibly pre vented from resisting sexual intercourse. The other situation provides for circumstances where the victim reasonably believes unwanted sexual intercourse would not be prevented by resistance to the threatened physical violence.
[5, 6] Evidence of a "reasonable belief’ is the victim’s perception of circumstances surrounding the act. Focus of this inquiry is the victim’s reasonable belief that resistance would not prevent the act, not the trier of fact’s retrospective assessment of the defendant’s power to carry out the threats. State v. Ard, 22-230 (La. App. 1 Cir. 12/22/22), 361 So.3d 473, 482, writ denied, 23-281 (La. 9/26/23), 370 So.3d 471 (citing State v. Robinson, 18-150 (La. App. 1 Cir. 9/21/18), 2018 WL 4519972, n. 2, writ denied, 18-1708 (La. 3/25/19), 267 So.3d 596). Evidence of actual resistance by the victim is not required to prove the crime. Id. Testimony of 12the victim alone can be sufficient to establish the elements of a sexual offense. State v. Raye, 17-136 (La. App. 5 Cir. 10/25/17), 230 So.3d 659, 666, writ denied, 17-1966 (La. 6/15/18), 257 So.3d 674.
In State v. Mitchell, 06-417 (La. App. 1 Cir. 11/03/06), 2006 WL 3112984, writ denied, 06-2752 (La. 6/22/07), 959 So. 2d 494, the defendant was charged with forcible rape, but the jury returned a guilty verdict for the lesser-included offense of simple rape. On appeal, the defendant contested the sufficiency of evidence to support his conviction for simple rape, contending the evidence did not support the offense of forcible rape. Id. The victim testified that after she declined several invitations from the defendant to spend the night with him, his demeanor changed, telling her, "[E]i-ther, you know, you can go with it and enjoy it, or it will be worst experience of your life." Id. In affirming the defendant’s conviction, the court stated it was clear that the victim’s "belief that any resistance on her part would not have prevented the rape was reasonable" when viewed in the light most favorable to the prosecution. The court stated,
Finally, we note that defendant’s conviction was based solely on the jury’s determination that K.G. did not consent to sexual intercourse. This determination rested solely on the acceptance of K.G.’s testimony and the rejection of defendant’s testimony. Because this conviction is based on a credibility determination, such a decision cannot be overturned on appeal. This assignment of error is without merit.
Mitchell, 2006 WL 3112984, at *7.
In the instant case, P.H. testified to rejecting defendant’s repeated requests for sex in the hours before sexual intercourse occurred. Defendant enticed P.H. into his car under the pretense of going to a nearby convenience store. Instead, defendant drove P.H. out of town where, he would later admit to Detective Foltez, he was anticipating sex with P.H. that night. Once parked, defendant interrogated P.H. regarding what he observed during surveillance of her house the day before. Defendant then physically beat P.H. with closed fists—twice before sexual 13intercourse and once after. Evidence was presented from witnesses who observed P.H. in the hours after the rape, who examined and treated her injuries, and who investigated the Incident, which corroborated P.H.’s testimony. P.H. testified in court that she had sexual intercourse with defendant out of fear he would kill her.
Defendant posits on appeal that the crime of second degree rape requires the use or threats of physical force to be contemporaneous with sexual intercourse. We disagree.
The record discloses evidence from which the jury could reasonably conclude that P.H.’s consent to sexual intercourse was vitiated by defendant’s threats of ongoing physical violence against her. Accordingly, applying the Jackson standard, we conclude a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found that the evidence was sufficient to convict defendant of second degree rape.
Trial Court’s Denial of Motion for PostVerdict Judgment of Acquittal and Motion for New Trial.
The next assignments of error presented address the trial court’s denial of defendant’s motions for post-verdict judgment of acquittal and for new trial. As we have found the evidence sufficient to support defendant’s conviction for second degree rape, we too find the trial court’s denial of defendant’s motions for new trial and postverdict judgment of acquittal was not an abuse of discretion. See State v. Richoux, 11-1112 (La. App. 5 Cir. 9/11/12), 101 So.3d 483, 490, writ denied, 12-2215 (La. 4/1/13), 110 So.3d 139; State v. Benoit, 477 So.2d 849, 852 (La. App. 5 Cir. 1985).
Counseled Assignments of Error Numbers Two and Three
14 Trial Court’s Denial of Defendant’s Motion to Quash
[7] The final assignment of error presented by defendant is the trial court’s denial of his motion to quash. Defendant argues his motion to quash should have been granted because his trial did not commence until after expiration of the two-year limit provided by La. C.Cr.P. art. 578. Consequently, defendant requests this Court grant his motion to quash and dismiss his indictment pursuant to La. C.Cr.P. art. 581.
Pro Se Assignment of Error Number Two
In this assignment of error, defendant relies on State v. Wade, 22-260 (La. App. 5 Cir. 2/27/23), 358 So.3d 937. Defendant contends he was arrested before the Wade defendant but received a trial nine months after Wade. Defendant argues that because the Wade defendant "was not yet detained" when his bill of information was filed, that case should not have proceeded to trial before his, which violated his rights under the Equal Protection Clause. In support of his argument, defendant cites Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484, 486 (1983), which states, under the Equal Protection Clause, "[A]ll persons similarly circumstanced shall be treated alike." Defendant asserts, "[F]or readily apparent reasons, the judge merely circumvented the proper procedure with an unattainable process." Supporting this assertion, defendant cites State v. Petrovich, 396 So.2d 1318, 1319 (La. 1981), which involved interpretation of a statute prohibiting employment of special counsel to represent public bodies and the Equal Protection Clause.
Defendant filed a pro se motion to quash on November 23, 2021. In his motion, defendant prayed for dismissal of his indictment under La. C.Cr.P. art. 581 on grounds that the commencement of his trial expired pursuant to 15La. C.Cr.P. art. 578(A)(2). Defendant asserted that the State had until January 30, 2021, to bring his case to trial because the bill of information was filed on January 30, 2018 [sic].
The record reflects that the bill of information was filed on January 30, 2019.
[8] Pursuant to La. C.Cr.P. art. 532(7), a motion to quash is the proper procedural vehicle for claiming an untimely commencement of trial. La. C.Cr.P. art. 578(A)(2) provides that no trial shall be commenced in felony cases after two years from the institution of prosecution. The date of institution of prosecution is the date when the indictment is returned or the bill of information is filed. La. C.Cr.P. art. 934(7); State v. Smith, 07-959 (La. App. 5 Cir. 3/11/08), 982 So.2d 831, 834. Once a defendant shows that the State has failed to commence trial within the time periods specified by La. C.Cr.P. art 578, the State bears a heavy burden of demonstrating that either an interruption or suspension of the time limit tolled prescription. State v. Morris, 99-3235 (La. 2/18/00), 755 So.2d 205 (per curiam).
On defendant’s motion to quash, the record reflects that the court issued an order for the defendant to appear and "show cause" on December 6, 2021. However, the record does not indicate that a motion to quash hearing was held on that date but does reflect that jury voir dire was conducted. Absent from the December 6, 2021 record is defendant’s objection to proceeding to trial without a disposition of his motion to quash.
The trial court ultimately denied defendant’s motion on December 20, 2021. Defendant filed a writ application regarding the denial of the motion to quash, which was denied by this Court on January 25, 2022. State v. Robinson, 22-27 (La. App. 5 Cir. 1/25/22), 2022 WL 219943 (unpublished writ disposition).
Defendant’s trial concluded on December 9, 2021.
[9] A trial court’s ruling on a motion to quash should not be reversed in the absence of a clear abuse of the trial court’s discretion. 16 State v. Brooks, 16-345 (La. App. 5 Cir. 12/28/16), 210 So.3d 514, 518. La. C.Cr.P. art. 581 provides that upon expiration of the time limitation, the court shall, on motion of defendant, dismiss the indictment, and there shall be no further prosecution against defendant for that criminal conduct.
In State v. Woodfox, 291 So.2d 388, 390 (La. 1974), the Louisiana Supreme Court held that failure of the trial court to rule on a motion to quash is an irregularity or error in the proceedings to which the defendant must object and reserve a bill of exceptions to any adverse ruling of the court. The court found that failure to do so constituted a waiver of the objection and an acquiescence in the irregularity.
In State v. Fletcher, 02-707 (La. App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-409 (La. 10/10/03), 855 So.2d 334, this Court found that defendant’s pretrial motion to suppress evidence was waived when he proceeded to trial without obtaining a ruling on the motion. This Court stated, "[A] defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon." (citing State v. Alexander, 97-1199 (La. App. 5 Cir. 9/29/98), 720 So.2d 82, 86, writ denied, 98-3109 (La. 4/9/99), 740 So.2d 628). This Court found that there was no ruling for it to review. Id.
Considering the foregoing, we find defendant’s assignment is without merit. The record reflects that defendant failed to object to the trial court’s failure to rule on his motion to quash prior to proceeding to trial. Thus, under Woodfox, supra, defendant waived objections asserted in his motion to quash, and we therefore find the trial court did not abuse its discretion in denying defendant’s motion to quash.
17 ERROR PATENT REVIEW
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). Defendant also asks for a full error patent review in his pro se supplemental brief.
Multiple Offender Sentencing and Uniform Commitment Order Consistency
On October 22, 2022, after vacating defendant’s original sentence, the trial court resentenced defendant as a second-felony offender to thirty years imprisonment with the Department of Corrections. The trial court ordered that the sentence run concurrent with any other sentence that defendant may have been serving. The sentencing minute entry states that the sentence is to "run concurrently with any or every sentence the Defendant may be serving."
The Uniform Commitment Order (UCO) states that the sentence is concurrent with "any or every sentence the Defendant may be serving Jefferson, 24th JDC." Recently, this Court in State v. Shorter, 23-128 (La. App. 5 Cir. 11/29/23), 377 So.3d 421, found that in a similar situation, the addition of "Jefferson, 24th JDC" on the UCO was not consistent with the transcript and remanded the matter to correct the UCO. Id.
Accordingly, following Shorter, we remand the matter for correction of the UCO to be consistent with the transcript and direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the institution to which defendant has been sentenced and to the Department of Corrections’ legal department. See Shorter, supra.
18 Sexual Offender Registration
The record reflects that the trial court failed to inform defendant of the sex of- fender registration requirements in accordance with La. R.S. 15:540, et seq. Defendant’s conviction of second degree rape in violation of La. R.S. 14:42.1 is defined as a sex offense under La. R.S. 15:541(24). La. R.S. 15:543(A) requires the trial court to notify a defendant charged with a sex offense in writing of the registration requirements of La. R.S. 15:542. Failure to provide this notification is an error patent warranting remand for written notification. See State v. Anthony, 17-372 (La. App. 5 Cir. 12/30/20), 309 So.3d 912, 930, writ denied, 21-176 (La. 10/12/21), 325 So.3d 1067, cert. denied, — U.S.–, 143 S.Ct. 29, 214 L.Ed.2d 214 (2022).
The transcript from sentencing does not include the sex offender registration requirements, and it is not contained elsewhere in the record, including in the original and multiple offender UCOs. See State v. Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307 So.3d 1189, 1197, writ denied, 21-274 (La. 4/27/21), 314 So.3d 838, cert, denied, — U.S.—, 142 S.Ct. 296, 211 L.Ed.2d 138 (2021) (wherein this Court remanded the matters for the trial court to correct the UCOs to reflect that the defendant shall comply with the sex offender registration requirements).
Additionally, the multiple offender UCO fails to include that defendant shall comply with the Sex Offender Registration as a "Sentence Condition." The UCO specifically contains an unchecked box next to a statement that defendant shall comply with these requirements. This omission is an error patent warranting remand for correction of the UCO.
For the foregoing reasons, we remand this cause to the trial court with instructions as set forth below.
DECREE
For the foregoing reasons, defendant’s conviction and sentence is affirmed. The matter is remanded for correction of the Uniform Commitment Order as instructed above, and the Clerk of Court for the 24th Judicial District Court is directed to transmit the original of the corrected UCO to the institution to which defendant has been sentenced and to the Department of Corrections’ legal 19department. The trial court is further instructed to inform the defendant of the sex offender registration requirements of La. R.S. 15:542 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file a copy of such notice into the record.
AFFIRMED; REMANDED WITH INSTRUCTIONS