STATE OF LOUISIANA v. WILLIE CHERRY (2025)

The defendant, Willie Cherry, was charged by grand jury indictment with second degree murder (count one), in violation of La. R.S. 14:30.1, and armed robbery with the use of a firearm (count two), in violation of La. R.S. 14:64 and 14:64.3(A).¹ He pled not guilty and, following a jury trial, was found guilty as charged. The trial court denied the defendant's motion for new trial, motion for post-verdict judgment of acquittal, and motion to quash based on double jeopardy. On count one, the trial court sentenced the defendant to life without the benefit of probation or suspension of sentence but afforded him the benefit of parole consideration as required by La. R.S. 15:574.4(F). On count two, the defendant was sentenced to fifty years without the benefit of probation or suspension of sentence but with the benefit of parole consideration pursuant to La. R.S. 15:574.4(J). The sentence on count two was to run concurrent with the sentence on count one. The defendant was sentenced to an additional five years on the firearm enhancement to be served consecutively to his sentence on count two.

The defendant now appeals, alleging that the evidence was insufficient to support his conviction for either count one, second-degree murder, or count two, armed robbery with the use of a firearm. He further argues that the trial court erred in denying his motion to quash count two based on double jeopardy. The State asserts there is no merit to the claim that the evidence was insufficient to support the defendant's conviction as to count one. The State concedes, however, that the defendant's conviction as to count two violates double jeopardy. The record supports the State's concession as to count two, as the charge of armed robbery with the use of a firearm is an element of the defendant's conviction in count one, second-degree murder. Accordingly, we vacate the defendant's conviction and sentence as to count two, armed robbery with the use of a firearm. See State v. Staden, 2014-0459 (La. App. 1 Cir. 9/24/14), 154 So.3d 579, 583, writ denied, 2014-2254 (La. 6/5/15), 171 So.3d 945; State v. Cotten, 438 So.2d 1156, 1160-1161 (La. App. 1 Cir. 1983), writ denied, 444 So.2d 606 (La. 1984). We affirm the defendant's conviction as to count one, second-degree murder, and affirm, as amended, his sentence on count one.

STATEMENT OF FACTS

In January 2021, Aaron Little, Noah Hinkle, and the defendant traveled from their hometown of East St. Louis, Illinois, to stay with family and friends in Bogalusa, Louisiana. On February 9, 2021, Little, Hinkle, and the defendant went to a residence on Lassley Street and, while there, decided to purchase marijuana from a local dealer, nineteen-year-old Larmond Godbolt. Godbolt and his girlfriend, Elarryca Brown, drove to 1834 Lassley Street and waited in Brown's vehicle. Three individuals approached the vehicle, robbed Godbolt of the marijuana, and shot him when Brown attempted to drive away. Brown drove Godbolt to the nearby hospital where he died from a single gunshot wound to the chest. Little, Hinkle, and the defendant were apprehended and arrested in Slidell, Louisiana, on February 12, 2021.

SUFFICIENCY OF THE EVIDENCE

On appeal, the defendant asserts the evidence was insufficient to find him guilty beyond a reasonable doubt of second-degree murder and armed robbery with the use of a firearm. Specifically, he claims with respect to the second-degree murder conviction, there was no evidence showing he had the specific intent to kill or inflict great bodily harm and no evidence proving he was a principal to felony murder. With respect to the armed robbery with the use of a firearm conviction, the defendant argues the evidence failed to show he participated in the robbery.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Coleman, 2021-0870 (La. App. 1 Cir. 4/8/22), 342 So.3d 7, 11, writ denied, 2022-00759 (La. 11/21/23), 373 So.3d 460; see also La. Code Crim. P. art. 821(B).

When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test for evaluating the evidence; rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. State v. Cabellero, 2022-0441 (La. App. 1 Cir. 11/4/22), 356 So.3d 389, 394, writ denied, 2022-01777 (La. 4/25/23), 359 So.3d 982. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984); State v. Bessie, 2021-1117 (La. App. 1 Cir. 4/8/22), 342 So.3d 17, 22, writ denied, 2022-00846 (La. 9/20/22), 346 So.3d 802.

On count one, the defendant was charged with second-degree murder, which is defined, in pertinent part, as the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

(2) When the offender is engaged in the perpetration or attempted perpetration of ․ armed robbery, first degree robbery, second degree robbery, simple robbery, ․ even though he has no intent to kill or to inflict great bodily harm.

La. R.S. 14:30.1(A).

Here, the jury was instructed as to both the specific intent and the felony murder elements of second-degree murder. “Specific criminal intent is 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). Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. See State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 592-593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Coleman, 342 So.3d at 12.

Under La. R.S. 14:24, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 890, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). Under the law of principals, all persons involved in the commission of a crime are equally culpable. State v. Posey, 2008-0746 (La. App. 1 Cir. 9/26/08), 2008 WL 43 76811, *3 (unpublished), writ denied, 2010-0718 (La. 4/1/11), 60 So.3d 1243.

A person may be convicted as a principal to second-degree murder even if he has not personally fired the fatal shot. Further, one need not possess specific intent to kill or inflict great bodily harm to be a principal to a second-degree felony murder. Rather, under the felony murder doctrine, the State need only prove the commission of the underlying felony or the attempt thereof. State v. Southall, 2022-0746 (La. App. 1 Cir. 6/2/23), 369 So.3d 925, 931, writ denied, 2023-00875 (La. 2/6/24), 378 So.3d 750.

In presenting its theory of felony murder, the State alleged the defendant was engaged in the commission of armed robbery. Armed robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La. R.S. 14:64(A). Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts that have been declared criminal. State v. Calloway, 2018-1396 (La. App. 1 Cir. 4/12/19), 276 So.3d 133, 142, writ denied, 2019-00869 (La. 1/20/21), 308 So.3d 1164.

The State bears the burden of proving the elements of the offense, along with the burden of proving the defendant's identity as the perpetrator. When, as in this case, the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051. A positive identification by only one witness is sufficient to support a conviction. Bessie, 342 So.3d at 23.

At trial, Jalen Mahone, who was twenty years old at the time of trial, testified he was close friends with Godbolt and had purchased marijuana from him several times a week for about two to three years. Mahone said he called Godbolt on February 9, 2021, to purchase marijuana, and they arranged a meet at a house around the corner from where Mahone was staying. Mahone testified when he arrived at the house, Little, Hinkle, and the defendant were inside, and they asked Mahone whether he knew someone who would sell them marijuana. According to Mahone, he told them Godbolt was on the way. Mahone testified Little, Hinkle, and the defendant each had a gun in the house.

When Godbolt and Brown arrived, Mahone walked to the passenger side door, purchased a gram of marijuana, and asked Godbolt if he would sell to Little, to which he responded affirmatively. Mahone said neither Godbolt nor Brown appeared to be armed. Mahone testified he went back to the house, told Little and the defendant that Godbolt would sell to them, and saw Little and the defendant walk outside. Mahone did not see Hinkle walk outside, but he testified he did not see Hinkle inside the house and noticed Hinkle's gun was gone. Mahone said he heard a gunshot and a car screech off, and then Little, Hinkle, and the defendant came inside the house. According to Mahone, the defendant appeared nervous and scared, and Hinkle was mad. Mahone said Little, Hinkle, and the defendant immediately began packing up their belongings, and they all left within two minutes. Mahone denied planning or participating in the robbery.

Laveta Sewell testified she was staying at her mother's house on Lassley Street in February 2021 and was at the house on the day of the shooting. Sewell said she had been drinking and smoking marijuana that day. According to Sewell, several people came over that night, including Mahone, “Bossy,”² Little, and two others. Sewell testified the individuals were in and out of the house, but she was not paying attention until she heard the gunshot. When Sewell eventually looked outside, she saw three individuals walking in the field across from the house. Sewell testified the individuals appeared to be Little and his friends.

Elarryca Brown, Godbolt's girlfriend, testified she was aware Godbolt sold marijuana. She was present when Godbolt sustained the fatal gunshot wound. Brown said on February 9, 2021, she was driving to pick up a friend when Godbolt told her to make a pitstop so he could sell marijuana to Mahone. Brown testified she had been to that residence before, and she pulled into the empty driveway. Mahone approached the passenger side door where Godbolt was seated and purchased marijuana. According to Brown, Mahone told them Little and Little's friends wanted to buy marijuana. Brown testified two individuals approached the passenger side, and another individual joined seconds later. When Godbolt asked how much marijuana they wanted to buy, one of the individuals put a gun to Godbolt's head. Brown said she tried to push the gun away, put her car in reverse, and attempted to leave, but one of the individuals grabbed the marijuana out of Godbolt's hand and shot him. Brown testified the three individuals were close to one another and none of them said to “stop.” Brown reviewed the factual basis for Hinkle's guilty pleas and said she did not “see any inconsistency” with her experience from the night of the shooting. Brown indicated Godbolt was not armed, noting he had sold his firearm two weeks prior to his death. The black and silver gun Brown recalled seeing the night of the shooting appeared similar to State's Exhibit 16, a Smith & Wesson.

Noah Hinkle testified he was involved in the robbery and murder of Godbolt and was sentenced to forty years at hard labor for his manslaughter and armed robbery convictions. Hinkle identified the defendant and Little as his co-participants in the robbery. Hinkle testified that he, Little, and the defendant went to the house on Lassley Street, and Mahone arrived later. The following colloquy ensued:

Q. At any point after you arrived and after Jalen Mahone arrived, did [Godbolt's] name come up in any way?

A. After we were there. After we were talking, you know.

Q. Explain to the jury how his name came up and what you-all discussed.

A. We were smoking and we ran out of weed. We were like we need some more weed. We were talking to Jalen Mahone. He was like he knows somebody that will pull up. We were like who? He was like his people. We were like who your people is? He was like [Godbolt]. Then we were discussing about we could rob the man and how we can get off him. We asked Little what did he have. He told us he had a Glock 22 and some weed.

Q. So you believed that when [Godbolt] pulled up he would have a Glock 22 and some weed?

A. Yes, sir.

․

Q. What gun did Willie Cherry have?

A. A Glock 19, 9 millimeter.

Q. And what gun did [Little] have?

A. Smith & Wesson 40.

The State showed Hinkle State's Exhibit 16, and Hinkle identified the firearm as belonging to Little. Hinkle testified the plan was to rob Godbolt of the marijuana and his firearm if he was armed, which he was not. He claimed Mahone was aware of their plan. Hinkle denied that killing Godbolt was a part of the plan but agreed he was killed during the course of the armed robbery. According to Hinkle, all three of them were armed when they approached Brown's vehicle. The defendant and Little pulled their guns out, and Little pointed his gun at Godbolt. Hinkle said Little took the marijuana from Godbolt and passed the marijuana to him and the defendant. When Brown put her vehicle in reverse, Little shot Godbolt. After the shooting, Little, Hinkle, and the defendant went to Mississippi and planned to return to Illinois with Little's family. Little, Hinkle, and the defendant were apprehended, and marijuana and firearms were recovered from their vehicles. Hinkle admitted he was not initially forthcoming and repeatedly lied to law enforcement about his involvement in Godbolt's murder, but he said he agreed to testify against Little and the defendant in exchange for an agreed-upon sentence of forty years.

Detective Casey Hidalgo with the Bogalusa Police Department (“BPD”) testified she was dispatched to the hospital and then went to the scene of the shooting. While at the crime scene, officers recovered a shell casing in proximity to the driveway. Detective Hidalgo said after speaking with Sewell, Little became a person of interest. Also, during his interview with Detective Hidalgo, Mahone identified Little, Hinkle, and the defendant as being involved the murder and armed robbery of Godbolt. The BPD obtained arrest warrants for Little, Hinkle, and the defendant and located them through cell phone tracking. Multiple law enforcement agencies followed Little's sister's vehicle on the interstate until it stopped at a gas station, along with two other vehicles. At that point, the police converged on the vehicles and apprehended Little, Hinkle, and the defendant. Marijuana was recovered from one of the vehicles, and three firearms were recovered from another vehicle.³ According to Detective Hidalgo, several of the people traveling in the caravan said they were going to Illinois. All three firearms were sent to the Louisiana State Police Crime Lab for examination, and swabs from the firearms along with buccal swabs from Little, Hinkle, and the defendant were sent for DNA testing.

The defendant was brought in for questioning and, after being advised of and waiving his Miranda 4 rights, he provided a statement to the police. The defendant admitted he had a gun but repeatedly said he did not rob or shoot Godbolt.

Chelsee Richardson, a firearms examiner with the Louisiana State Police Crime Lab, was accepted as an expert in the field of firearms examination. Richardson examined the three firearms recovered during the arrests, the shell casing recovered from outside the house, and the bullet recovered from the passenger seat of Brown's vehicle. Richardson test fired each of the firearms and, based on her microscopic examination, determined that the shell casing was fired from the Smith & Wesson pistol. The bullet recovered from Brown's vehicle had the same class characteristics as the Smith & Wesson and some reproducing individual characteristics; however, Richardson testified the bullet was too damaged for her to definitively conclude the bullet was fired from the Smith & Wesson.

Dr. Christy Cunningham, accepted as an expert in the field of forensic pathology, performed Godbolt's autopsy. Dr. Cunningham's autopsy revealed Godbolt died from a perforating gunshot wound to the chest, classifying the manner of death as a homicide. Dr. Cunningham subsequently determined the gunshot wound she photographed during the autopsy was a contact wound after she examined Godbolt's shirt and the Smith & Wesson.⁵ Dr. Cunningham noted a “rectangular abrasion” surrounding the entrance wound, which she determined was consistent with a particular muzzle imprint matching the measurements and outlines of the muzzle of the Smith & Wesson.

On appeal, the defendant argues the evidence showed Little was the shooter, and the evidence failed to show that the defendant participated in the armed robbery to support a conviction of second-degree felony murder. He admits the evidence proved he was present at Lassley Street, that he knew the shooter, and that his DNA was on one of three firearms. However, the defendant contends the case rested almost exclusively on Hinkle's testimony, which he contends was inconsistent with Hinkle's prior statements to law enforcement and motivated by his plea agreement with the State. Therefore, the defendant argues no rational trier of fact could have found the State proved the essential elements of second-degree murder beyond a reasonable doubt.

In its brief, the State argues the evidence was sufficient to sustain the defendant's conviction under La. R.S. 14:30.1(A)(2) since he was a principal to the armed robbery that resulted in Godbolt's death.⁶ The State does not, however, maintain its argument that the defendant had the specific intent to kill or inflict great bodily harm under La. R.S. 14:30.1(A)(1) as it did at trial. We agree the evidence adduced at trial was insufficient to identify the defendant as the shooter. Brown testified the black and silver gun that was aimed at Godbolt's head appeared similar to State's Exhibit 16, a Smith & Wesson. Hinkle identified State's Exhibit 16 as belonging to Little. According to Hinkle, all three of them were armed when they approached Brown's vehicle, but Little was the individual who pointed his gun at Godbolt. Hinkle specifically testified Little shot Godbolt, and Mahone said the defendant appeared nervous and scared after the shooting. Therefore, the evidence was insufficient to prove the defendant had the specific intent to kill or cause great bodily harm to support a conviction of second-degree murder under La. R.S. 14:30.1(A)(l).

However, we find the evidence was sufficient to support a conviction of second-degree murder with the enumerated felony of armed robbery under La. R.S. 14:30.1(A)(2). While the defendant attempts to cast doubt on Hinkle's credibility - noting Hinkle was not initially forthcoming in the investigation and only testified in exchange for a favorable plea agreement with the State - the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Dunn, 2021-0630 (La. App. 1 Cir. 12/22/21), 340 So.3d 77, 85, writ denied, 2022-00095 (La. 4/5/22), 3 3 5 So.3d 834. When there is conflicting testimony about factual matters, the resolution of which depends upon the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. Dunn, 340 So.3d at 85.

Hinkle's testimony, regardless of whether it was motivated by a plea agreement with the State, was sufficiently corroborated by the evidence. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051. The verdict rendered in this case indicates the jury rejected the defendant's theory that he was not a participant in the armed robbery. In reviewing the evidence presented at trial, we cannot say the jury's determination was irrational under the facts and circumstances presented. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. Hinkle testified the defendant was present when the robbery was being planned, and the defendant was armed when he approached Brown's vehicle to steal Godbolt's marijuana. While Hinkle provided the police with numerous versions of what transpired, he positively identified the defendant as an active participant in the robbery who approached the vehicle on the passenger's side, where Godbolt was seated. Hinkle's statements were corroborated by Brown's testimony, Sewell's testimony, and the defendant's own statement in which he admitted he was armed with a weapon at the time of the commission of the crime. Finally, as the defendant's whereabouts were initially unknown, attempts to find him were unsuccessful, and he was ultimately arrested in Slidell. Based on Hinkle's testimony, the juveniles went to Mississippi after the shooting and planned to return to Illinois with the Little family. Thus, the jury could have reasonably concluded the defendant fled after the offense to avoid apprehension. Flight and attempt to avoid apprehension indicate consciousness of guilt and, therefore, are circumstances from which a juror may infer guilt. State v. Earl, 2015-1383 (La. App. 1 Cir. 6/6/16), 2016 WL 3146011, *8 (unpublished), writ denied, 2016-1329 (La. 12/5/16), 213 So.3d 393.

We find based on the evidence presented at trial, the jury could have rationally found the defendant was engaged in the perpetration of an armed robbery when Godbolt was killed and, thus, guilty of second-degree murder in violation of La. R.S. 14:30.1(A)(2). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). After a thorough review of the record, we are convinced a rational trier of fact, viewing the evidence in the light most favorable to the State, could find the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second-degree murder. Accordingly, this assignment of error lacks merit.

PATENT ERROR

Pursuant to La. Code Crim. P. art. 920(2), this court routinely conducts a review of all appeals for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 2023-0117 (La. App. 1 Cir. 11/3/23), 378 So.3d 766, 775, writ denied, 2024-00027 (La. 5/21/24), 3 85 So.3d 242. After a careful review of the record, we have found three patent errors.

The record reveals the defendant's sentence was imposed immediately following the denial of his motion for new trial.⁷ Louisiana Code of Criminal Procedure article 873 provides, in pertinent part: “If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.” While a waiver of the delay may be made expressly, “[a]n implicit waiver, however, runs afoul of the plain language of Art. 873[.]” State v. Kisack, 2016-0797 (La. 10/18/17), 236 So.3d 1201, 1205 (per curiam), cert. denied, 583 U.S. 1160, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018). Here, there was no explicit waiver of the delay following the denial of the motion for new trial.⁸ Nevertheless, in State v. Augustine, 555 So.2d 1331, 1333-1334 (La. 1990), the supreme court found the failure to observe the twenty-four-hour delay to be harmless error where the defendant could not show he suffered prejudice. The supreme court concluded no prejudice would be found if the defendant did not challenge the sentence imposed and the violation of the twenty-four-hour delay was merely noted on patent error review. Id. at 1334. Because the defendant has not assigned error to the trial court's failure to observe the twenty-four-hour delay nor has he contested the sentence imposed, we find this patent error is harmless. See State v. Cyprian, 2021-0287 (La. App. 1 Cir. 12/22/21), 340 So.3d 271, 287-288.

The defendant's sentence was not imposed at hard labor though La. R.S. 14:30.1(B) requires a sentence for second degree murder to be served at hard labor.⁹ Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, Article 920(2) authorizes consideration of such an error on appeal. Moreover, La. Code Crim. P. art. 882(A) authorizes the appellate court to correct an illegal sentence on review. Thus, correction of the sentence does not involve sentencing discretion and, as such, this court has the authority to simply amend the sentence. See State v. Jefferson, 2018-0037 (La. App. 1 Cir. 6/1/18), 2018 WL 2454474, *4 (unpublished). Accordingly, we hereby amend the sentence by providing it be served at hard labor. We instruct the trial court to amend the commitment order to accurately reflect the defendant's sentence is to be served at hard labor and to transmit a corrected commitment order to the Department of Corrections Legal Department. See State v. Grayer, 2018-1346 (La. App. 1 Cir. 6/3/19), 2019 WL 2352298, *3 (unpublished).

Finally, the transcript reflects the trial court failed to advise the defendant of the prescriptive period for filing an application for post-conviction relief. Louisiana Code of Criminal Procedure article 930.8(C) directs the trial court to inform the defendant of the prescriptive period for filing an application for post-conviction relief at the time of sentencing. Nevertheless, the trial court's failure to advise the defendant of the prescriptive period has no bearing on the sentence and is not grounds to reverse the sentence or remand for resentencing. See State v. LeBoeuf, 2006-0153 (La. App. 1 Cir. 9/15/06), 943 So.2d 1134, 1142-1143, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. Out of an abundance of caution and in the interest of judicial economy, we advise the defendant that Article 930.8 generally provides that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. Code Crim. P. arts. 914 or 922. LeBoeuf, 943 So.2d at 1143.

Accordingly, we affirm the defendant's second-degree murder conviction and affirm his sentence as amended. Due to a double jeopardy violation, we vacate his armed robbery with the use of a firearm conviction and sentence. Finally, we instruct the trial court to correct the commitment order to reflect that the sentence is to be served at hard labor and to transmit the corrected commitment order to the Department of Corrections Legal Department.

SECOND-DEGREE MURDER CONVICTION AFFIRMED AND SENTENCE AFFIRMED AS AMENDED; ARMED ROBBERY WITH THE USE OF A FIREARM CONVICTION AND SENTENCE VACATED; REMANDED FOR CORRECTION OF THE COMMITMENT ORDER.

FOOTNOTES

1.   The defendant was fifteen years old at the time of the offenses. Also indicted for second degree murder and armed robbery with the use of a firearm were co-defendants Aaron Little, who was sixteen at the time of the offenses, and Noah Hinkle, who was seventeen at the time of the offenses. Pursuant to a plea agreement, Hinkle pled guilty to manslaughter and armed robbery and testified against the defendant and Little at trial. Both the defendant and Little were convicted as charged.

2.   The identity of “Bossy” is unclear from the record, but Sewell testified he was her nephew.

3.   A fourth firearm was found in the vehicle, but the police determined the firearm belonged to the driver and was not the same caliber firearm as the murder weapon.

4.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

5.   At the time of the autopsy, Dr. Cunningham listed the range of fire as indeterminate but documented the rectangular abrasion surrounding the gunshot wound. Dr. Cunningham testified she was only able to definitively determine the range of fire after viewing the additional evidence.

6.   In its brief, the State indicates the defendant was convicted under La. R.S. 14:24 and La. R.S. 14:30.1(A)(2). The State argues:This theory, which was rationally accepted by the jury, did not require the State to prove [the defendant] shot the victim and acted with specific intent. All the State had to show, beyond a reasonable doubt, was [the defendant] was involved in the commission of an armed robbery wherein the victim was killed. In light of this burden, the evidence against [the defendant] is overwhelming.

7.   The trial court also denied the defendant's motion for post-verdict judgment of acquittal immediately before imposing the sentence. However, this court has held that “a trial court's failure to apply [La. Code Crim. P.] art. 873’s 24-hour sentencing delay between the denial of a motion for post-verdict judgment of acquittal and sentencing is neither a patent error nor a valid basis to vacate a sentence when assigned as error.” State v. Stalls, 2023-0829 (La. App. 1 Cir. 9/26/24), ___ So.3d ___, 2024 WL 4298033, *8 (en banc).

8.   The minutes, however, reflect the defendant “waive[d] all delays” before the trial court imposed the sentences. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

9.   Again, the minutes reflect the sentence was imposed at hard labor. Despite the discrepancy, the transcript prevails. See Lynch, 441 So.2d at 734.

LANIER, J.