Kirk Shаffer was convicted of pandering, LSA-R.S. 14:84, and was sentenced as a second offender to ten years at hard labor with no parole or good time eligibility. In two assignments of error, he contends 1) thаt the evidence was insufficient to support his conviction, and 2) that his attorney had a conflict of interest in representing him. We affirm.
ERROR PATENT
At the outset, we notice a sentencing error patent in the record. Because defendant was sentenced as a second offender, he is eligible for parole consideration upon serving one-half of the sentence imposed.
First, a question arises whether the trial judge may deny parole eligibility when imposing sentence or whether the provisions of R.S. 15:574.4(A)(1) are merely guidelines
Our consideration of the rationale in the cited cases leads us to conclude that the trial judge is clothed with the authority to impose a sentence prohibiting parole eligibility when this prohibition is appropriate.
Nonetheless, while we conclude the trial judge may deny parole eligibility, in the instant case he erroneously imposed the prohibition for the sentence in its entirety. Consistent with LSA-R.S. 15:574.4(A)(1), this second offender cannot be рrohibited from eligibility for parole consideration after serving one-half of the sentence imposed. Accordingly, defendant is entitled to an amendment of the sentence consistent with the conclusions reached herein.
CONFLICT OF INTEREST
Turning now to defendant’s assignments of error, we consider them in reverse order. In his second assignment of error, defendant contends that his conviction should be reversed because his attorney had an alleged conflict of interest in representing him. According to Shaffer, his attorney in the instant case had also represented Shaffer’s co-defendant in an unrеlated matter in Jefferson Parish involving possession of a stolen gun.
A review of the record reveals that defendant did not raise the alleged conflict of interest issue until his multiple bill hearing. Because the issue was raised for the first time after trial, the defendant must demonstrate “an actual conflict of interest adversely affecting his lawyer’s performance”. State v. Kahey,
In the instant case, defendant has made no showing that his attorney’s representation of Shaffer’s co-defendant in a separate case in another parish was related to the instant case or that his attorney was placed in a situation conducive to divided loyalties. Accordingly, we conclude that defendant has no basis upon which to allege a conflict of interest.
This assignment of error is without merit.
SUFFICIENCY OF EVIDENCE
The more serious contention raised by defendant concerns the sufficiency of evidence. Shaffer contends that in pandering cases the state must show that the defendant was promoting prostitution. He argues that the circumstantial evidence in thе instant case was insufficient to prove this necessary element of the offense.
Eric Dubelier, an assistant district attorney, testified that from June, 1986 to November, 1986, the New Orleans District Attorney’s office and the NOPD vice squad, in conjunction with the federal drug enforcement administration, had set up an undercover operation through a business known as “A Touch Of Class Escort Service”. The owner of this business had been apprehended earlier and had become an informant, under the supervision of the District Attorney’s office.
Dubelier stated that he was manning the telephone at the escort serviсe on November 13, 1986, and that he had received several calls from both the defendant and his wife Bobby, telling him that they were
Undercover vice officer Edward Messina testified that on November 13, 1986, he obtained a room at the Monteleone, called the escort service at 10:35 p.m., and instructed them to have Bobby call him in a few minutes. Bobby called a few minutes later and stated that she would be over in half an hour. Upon arrival, Bobby told him that she charged $150.00 per hour plus $60.00 for the escort service. Aftеr Messi-na gave Bobby $210.00, she called the escort service and then her “taxi cab” at 529-0571 to tell that party that she had a one-half hour appointment. Bobby and Messina then undressed and got into bed. After Bobby had attempted to perform oral sex upon him, Messina arrested her. In a search incident to the arrest, Messina found the $210.00 he had earlier given her, two knives, some condoms, and a crеdit card printer.
Evidence was further offered by the State concerning Shaffer’s actions following Bobby’s arrest. According to Dubelier, on several prior occasions Shaffer had driven Bobby to her dates “and would take care of her and watch out for her and make sure she didn’t get hurt.” Dubelier testified that after Bobby went to the Montel-eone on the evening in question Shaffer called the escort service to inquire about her and indicated his concern that her “time was up” and she had not yet returned from the hotel room. After Dubelier told Shaffer that he had called the room and had rеceived no answer, Shaffer stated that he was going to the room to get her. Dubelier thereafter called Officer Messina to advise him to expect Shaffer. According to Messina, within two or thrеe minutes after Dubelier’s call and about thirty minutes after Bobby’s arrest, defendant arrived at the hotel room and was arrested for pandering. A search of Shaffer revealed a beeper with thе number 529-0571 (the same number dialed earlier by Bobby ostensibly as her “taxi cab”) and a notebook containing a record of numerous appointments.
To support a conviction for pandering undеr LSA-R.S. 14:84(1) or (6), the State must prove that the accused enticed, placed, persuaded, encouraged or caused another person to enter into the practice of prostitutiоn either by force, threats, promises, or any other device or scheme, or transported a person from one place to another for the purpose of promoting the prаctice of prostitution. The perpetrator’s intent to commit the crime may be inferred from circumstances surrounding the occurrence. LSA-R.S. 15:445; State v. Williams,
Upon reviewing the record for sufficiency of еvidence to support a conviction, courts must examine the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found thаt the State has proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
Considering the evidenсe in the instant case, we conclude that the State carried the burden of showing the defendant’s guilt. Shaffer called the escort service to inquire if there was a “date” for Bobby,
This assignment of error is without merit.
DECREE
Accordingly, we affirm defendant’s conviction for pandering. We further affirm defendant’s ten year sеntence of imprisonment at hard labor without good time, but amend to provide that the first half of the sentence shall be served without benefit of parole.
CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED.
Notes
. LSA-R.S. 15:574.4(A)(1) provides:
A.(l) A person, otherwise eligible for pаrole, convicted of a first felony offense and committed to the Department of Public Safety and Corrections shall be eligible for parole consideration upon serving one-third of the sentence imposed; upon conviction of a second felony offense, such person shall be eligible for parole consideration upon serving one-half of the sentence imposed. A person convicted of a third or subsequent felony and committed to the Department of Public Safety and Corrections shall not be eligible for parole.