Preview:

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 34 FROM CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 14th day of April, 2004, are as follows: BY KIMBALL, J.: 2003-K- 0924 STATE OF LOUISIANA v. DANNY PARKER (Parish of St. Tammany) (Possession of Controlled Dangerous Substances, Two Counts; Habitual Offender) For all the reasons expressed herein, we conclude that the punishment to be imposed on defendant, a habitual offender, is that provided by La. R. S. 15:529.1 as it existed on the date he committed the underlying offense. We therefore reverse that portion of the court of appeal's judgment that vacated the habitual sentence imposed on defendant by the district court. However, because it determined that defendant's habitual offender sentence was improper, the court of appeal pretermitted consideration of defendant's second assignment of error contending the sentence imposed was unconstitutionally excessive. We therefore remand this case to the court of appeal for consideration of defendant's remaining assignment of error that was pretermitted on appeal. REVERSED AND REMANDED. CALOGERO, C.J., concurs. JOHNSON, J., dissents and assigns reasons. WEIMER, J., additionally concurs and assigns reasons.

04/14/04

SUPREME COURT OF LOUISIANA
No. 03-K-0924 STATE OF LOUISIANA v. DANNY PARKER
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ST. TAMMANY

KIMBALL, Justice The issue presented in this case is whether the ameliorative changes in Louisiana's habitual offender law, La. R.S. 15:529.1, apply only to those cases in which the defendant commits the charged crime after the effective date of the amending act or whether they can be applied to a defendant who is adjudicated a habitual offender after the effective date of the amending act, but whose crime was committed prior to the effective date of the amending act. Based on the language of the amending act, this court's well-settled jurisprudence, and the policy considerations involved, we conclude that the applicable habitual offender provisions are those that were in effect at the time of the commission of the charged offense. Accordingly, we reverse that portion of the court of appeal's judgment to the contrary. Facts and Procedural History Defendant, Danny Parker, was charged by bill of information in count one with possession of a Schedule III controlled dangerous substance (Dihydrocodeinone) in violation of La. R.S. 40:968(C), and in count two with possession of a Schedule IV controlled dangerous substance (Diazepam) in violation of La. R.S. 40:969(C). The
1

alleged offense occurred on March 25, 1997. Defendant pled not guilty to both counts, and was subsequently tried and convicted on both counts by a six-person jury. Thereafter, the State filed a habitual offender bill, alleging with respect to count two that defendant was a third felony offender because he had previously pled guilty to aggravated battery in violation of La. R.S. 14:34 and he was previously convicted for distribution of a Schedule II controlled dangerous substance (cocaine) in violation of La. R.S. 40:967. Following a hearing, the district court adjudicated defendant as a third felony offender. On August 3, 1999, defendant was sentenced to concurrent sentences of five years at hard labor on count one and life imprisonment without benefit of parole, probation, or suspension of sentence as a third felony offender on count two. Defendant filed an appeal, and, on November 9, 2001, the court of appeal affirmed the convictions on both counts and the sentence on count one, but vacated the habitual offender adjudication and sentence on count two.1 The matter was remanded to the district court for further proceedings. State v. Parker, 00-2861 (La. App. 1 Cir. 11/9/01), 818 So.2d 85. On March 4, 2002, following a hearing on remand, the district court again adjudicated defendant a third felony offender and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence pursuant to the provisions of La. R.S. 15:529.1(A)(1)(b)(ii) in effect at the time of the commission of the crime. Defendant objected to the sentence, arguing that it was excessive in light of changes in the habitual offender law that became effective after the time of the commission of the third felony offense and conviction, but before his re-adjudication

1

The court of appeal reversed the multiple offender adjudication and the sentence on count two because it found the evidence presented was insufficient to support the use of the aggravated battery conviction, which was based on defendant's guilty plea, to establish defendant's status as a third felony offender.
2

as a habitual offender. Defendant again appealed the habitual offender adjudication and sentence, and the court of appeal affirmed the habitual offender adjudication. State v. Parker, 021477 (La. App. 1 Cir. 3/5/03), 845 So.2d 546. However, the court of appeal vacated the habitual offender sentence because it concluded that defendant should have been sentenced according to the amended provisions of the habitual offender law that were in effect when he was properly adjudicated a third felony offender by the district court. Id. Although the court acknowledged that State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, reiterated this court's consistent holding that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted defendant must suffer, the majority distinguished the instant situation on several grounds. The majority noted that the habitual offender law, as amended after defendant's commission of the crime, but before he was properly adjudicated a third felony offender and sentenced therefor, is a penalty enhancement statute rather than a statute that imposes a sentence for a particular offense. The court of appeal also distinguished Sugasti on the basis of its determination that "a defendant is not a habitual offender simply by virtue of committing a third felony offense." Parker, 021477 at p. 5, 845 So.2d at 550. Since defendant is not a habitual offender subject to the punishment prescribed by the law until the district court so finds, the court of appeal reasoned that the amended provisions should be applicable to a defendant found to be a habitual offender after the effective date of the amendment. In reaching this conclusion, the court of appeal focused on La. R.S. 15:529.1(D)(3), which includes the language "[w]hen the judge finds." Thus, the majority vacated the sentence imposed and remanded the case to the district court for re-sentencing. We granted the State's request for certiorari to consider whether defendant should be sentenced according to the habitual offender law in effect at the time of the
3

commission of the offense or that in effect at the time of the habitual offender adjudication and sentencing. State v. Parker, 03-0924 (La. 12/19/03), 864 So.2d 608. Discussion In its sole assignment of error, the State argues that the court of appeal erred when it departed from this court's jurisprudence and ruled that defendant should be sentenced according to the new provisions of the habitual offender law in effect at the time of the habitual offender adjudication rather than those in effect at the time of the commission of the predicate felony.2 The State points out that the habitual offender law does not establish an independent crime, but prescribes an enhanced penalty for certain subsequent offenses. The State also asserts that the amending language itself mandates that the new provisions be applied prospectively only. Defendant, on the other hand, asserts that the penalties prescribed by the multiple offender law apply only after there has been a judicial determination that a convicted person is, in fact, a habitual offender. Thus, defendant argues, the date of the adjudication as a habitual offender must dictate the applicable habitual offender sentencing provisions. The relevant habitual offender statute in effect at the time defendant committed the crime at issue and at the time of his conviction, La. R.S. 15:529.1, provided in pertinent part: A. (1) Any person who, after having been convicted within this state of a felony . . . thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows: (b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:

2

The court of appeal affirmed the district court's adjudication of defendant as a third felony habitual offender, and defendant did not seek review of this portion of the court of appeal's judgment in this court. Accordingly, the adjudication of defendant as a third felony habitual offender is now final.
4

(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under La. R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. (Emphasis added). This version of La. R.S. 15:529.1 was in effect at the time defendant committed the crime, at the time he was convicted, and at the time he was first adjudicated a third felony offender and sentenced accordingly. As explained above, however, this initial adjudication was vacated by the court of appeal and the matter was remanded to the district court because the court of appeal found that the State had failed to present adequate proof that defendant had been represented by counsel when he entered a guilty plea to one of the prior offenses alleged in the habitual offender bill and that defendant's guilty plea was informed and voluntary and made with an articulated waiver of his Boykin3 rights. Parker, 00-2861 at p. 8, 818 So.2d at 90. On remand, defendant was again adjudicated a third felony offender and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on March 4, 2002. By this time, Act No. 403 of 2001, which included an amendment to those provisions of La. R.S. 15:529.1 applicable to the instant case, had been enacted by the legislature in an attempt to reduce incarceration rates for nonviolent offenders and to ease the financial burden on the state. State v. Sugasti, 013407, p. 3 (La. 6/21/02), 820 So.2d 518, 520. Effective June 15, 2001, Act 403 amended La. R.S. 15:529.1 to provide, in pertinent part:

3

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
5

A. (1) Any person who, after having been convicted within this state of a felony . . . thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows: (b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then: (ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13) . . . or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. (Emphasis added). Act 403 explicitly provides that "[t]he provisions of this Act shall only have prospective effect." 2001 La. Acts No. 403,

Download 2003-K-0924 STATE OF LOUISIANA v. DANNY PARKER.pdf

Louisiana Law