NO. 2017 KA 1566
WARREN L. MONTGOMERY DISTRICT ATTORNEY MATTHEW CAPLAN ASSISTANT DISTRICT ATTORNEY COVINGTON, LA ATTORNEYS FOR STATE OF LOUISIANA NICK F. NORIEA, JR. COVINGTON, LA ATTORNEY FOR DEFENDANT-APPELLEE KENDRICK DAMONE HARRISON
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana
Trial Court No. 584006
Honorable Raymond S. Childress, Judge WARREN L. MONTGOMERY
ASSISTANT DISTRICT ATTORNEY
COVINGTON, LA ATTORNEYS FOR
STATE OF LOUISIANA NICK F. NORIEA, JR.
COVINGTON, LA ATTORNEY FOR
KENDRICK DAMONE HARRISON BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ. PETTIGREW, J.
The defendant, Kendrick Damone Harrison, was charged by bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count 1); and DWI, third offense, a violation of La. R.S. 14:98 and La. R.S. 14:98.3 (count 2). The defendant initially pled not guilty to the charged offenses, but subsequently withdrew his not guilty pleas and pled guilty to both charges at a Boykin hearing. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). On count 1, the defendant was sentenced to five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On count 2, the defendant was sentenced to five years imprisonment at hard labor with the first year of the sentence to be served without the benefit of parole, probation, or suspension of sentence; the trial court also imposed a $2,000.00 fine. The sentences were ordered to run concurrently. The prosecutor at the Boykin hearing objected to the defendant's five-year sentence for the possession of a firearm by a convicted felon conviction as illegally lenient. The State now appeals, designating one assignment of error. We affirm the convictions and sentences.
The defendant's middle name throughout the appellate record is spelled either as "Damone" or "Damon." We adopt the "Damone" spelling as found in the bill of information.
Because the defendant pled guilty, the facts were not developed at a trial. At the Boykin hearing, regarding the factual basis for the guilty pleas, the prosecutor stated that "we would offer a stipulation that a factual basis exists based on the pretrial discovery we've provided to the defense and pretrial discussions we have had." The bill of information charged the defendant committed the offenses in St. Tammany Parish on or about September 12, 2016.
ASSIGNMENT OF ERROR
In its sole assignment of error, the State argues that the trial court erred in failing to sentence the defendant pursuant to the provision in effect at the time of the offense. Specifically, the State contends that the amended provisions of La. R.S. 14:95.1(B) should not have been retroactively applied.
For his conviction of possession of a firearm by a convicted felon, the trial court sentenced the defendant to five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. At the time the defendant committed this offense, September 12, 2016, La. R.S. 14:95.1(B) provided for a sentencing range of imprisonment at hard labor for not less than ten nor more than twenty years (without benefits and a mandatory fine). Under 2017 La. Acts No. 281, § 1, which became effective on August 1, 2017, La. R.S. 14:95.1(B) was amended to provide for a sentencing range of imprisonment at hard labor for not less than five nor more than twenty years (without benefits and a mandatory fine).
At the Boykin hearing, the prosecutor argued the defendant should be sentenced under the law that was in effect at the time he committed the offense. Since the defendant both pled guilty and was sentenced on August 14, 2017, defense counsel indicated the defendant should be sentenced under the new law, wherein he could receive a minimum five-year sentence. The trial court agreed with the defense counsel, finding that the ameliorative change in the law should apply to the defendant. In pertinent part, the trial court stated:
Well, in reviewing the case that you submitted I realize the language involved was a lot more specific, but the court did address the intent of the legislature in amending the statutes involving the DWI to apply it prospectively to people being sentenced after the change of the law. I see a lot of similarities in this. The whole packages of legislation that were passed this past session, 2017, the intent was to try to reduce the prison population and maybe bring some of Louisiana's draconian sentencing more in line with the rest of the country. This would be a perfect example of that. Reducing what previously was ten years without benefit for a first offense to five years without benefit for a first offense certainly seems to fulfill the legislative intent to try to reduce some of the prison population. And I think given that, that it would be appropriate for me to sentence the defendant based upon the law that is now in effect as opposed to the law in effect at the time that he committed the crime.
A strong presumption exists in Louisiana law that the statute in effect at the time of the offense governs the applicable punishment for the crime. The general rule applies even when the changes in sentence are ameliorative in nature. See State v. Sugasti, 2001-3407 (La. 6/21/02), 820 So.2d 518, 520; State v. Harris, 2002-873 (La. App. 5 Cir. 1/28/03), 839 So.2d 291, 292, writ denied, 2003-0846 (La. 10/31/03), 857 So.2d 474 (Where there has been an ameliorative change in the penalty provision of a statute that takes effect after the date of the offense, but before trial or final judgment, it is the rule in this State that the penalty provision in effect at the time of the offense is the applicable provision).
Ex post facto laws are prohibited by United States Constitution Article 1, Sections 9 and 10, and Louisiana Constitution Article 1, Section 23. This prohibition extends to the enforcement of any enactment that changes the punishment to inflict a greater penalty than that authorized for the crime at the time of its commission. Thus, legislation that passed after the crime could not be applied to persons convicted of the offenses that were committed prior to the enactment. State v. Robinson, 423 So.2d 1053, 1063 (La. 1982). Our supreme court made an exception to this rule in State v. Mayeux, 2001-3195 (La. 6/21/02), 820 So.2d 526, 530-531, which held that the ameliorative changes made by 2001 La. Acts No. 1163 in the law of sentencing for third and fourth offense DWI convictions have limited retroactive application to crimes committed before its effective date when the defendant is convicted after that date. The court took into account several considerations, including a strong policy statement by the legislature "to embrace treatment measures in preference to incarceration." Mayeux, 820 So.2d at 529. See State v. Hyde, 2007-1314 (La. 11/21/07), 968 So.2d 726 (per curiam).
The new version of La. R.S. 14:95.1(B) states in pertinent part:
Whoever is found guilty of violating the provisions of the Section shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
The State argues in brief that the legal presumption that laws do not apply retroactively should apply in the instant matter. According to the State, a narrowly drawn exception to this rule was recognized in the Mayeux decision, which found that the sentencing provisions of a statute did apply retroactively. The Mayeux court found that three specific provisions within the new legislation pointed to an interpretation consistent with applying the new provisions to a defendant who was not convicted of a fourth DWI charge until after the effective date of the statute: 1) the words "upon conviction"; 2) the legislative purpose of favoring treatment over incarceration; and 3) allowing home incarceration for those previously convicted. Mayeux, 820 So.2d at 530. The State notes that the new legislation (which included La. R.S. 14:95.1) is not accompanied by the language found in Mayeux; that is, in the new legislation, there is no statement of legislative intent; there is no language to authorize the statute's ameliorative effects to those already convicted; and La. R.S. 14:95.1 does not contain "peculiar language" that suggests the penalty is to apply "upon conviction." See State v. Parker, 2003-0924 (La. 4/14/04), 871 So.2d 317, 326.
The defendant argues in brief that the State is incorrect, and that the trial court properly sentenced him under the sentencing provision in effect at the time of "conviction." According to the defendant, it is clear from the plain language of La. R.S. 14:95.1(B) and the legislative intent behind its revision that the law in effect at the time of "sentencing" is to apply.
The defendant suggests in brief that the "legislative intent behind the new law is to reduce Louisiana's prison population and bring our sentencing laws more in line with the rest of the country." According to the defendant, the "Whoever is found guilty" language is interchangeable with the "upon conviction" language of La. R.S. 14:98, as discussed in Mayeux. We agree.
The defendant correctly points out in brief that the "Whoever is found guilty" language in La. R.S. 14:95.1(B) is distinguishable from the sentencing language in other criminal law statutes such as "Whoever commits the crime" and "Whoever violates the provisions of [this Section or Paragraph] ... shall be ... imprisoned." See, for example, La. R.S. 14:30.1(B), La. R.S. 14:51, La. R.S. 14:46.3(D)(1)(a), La. R.S. 14:81.5(D), La. R.S. 14:95.1.3(D). Thus, according to the defendant, the plain language of La. R.S. 14:95.1 demonstrates a legislative intent that the amended provisions in effect at the time of sentencing should apply.
Recently, in State v. Holloway, 2015-1233 (La. 10/19/16), 217 So.3d 343-344, our supreme court found that by the time Holloway was sentenced in 2014, the new version of La. Code Crim. P. art. 890.1, which was in effect at this time, was applicable to his case. Holloway committed the crime of vehicular homicide in 2007. Specifically, the Holloway court found that the plain language in amended Article 890.1, "upon conviction, in sentencing the offender," applied when Holloway was convicted (January 30, 2014) and sentenced in 2014, and where there was an indication that the legislature did not intend for an offender like Holloway to be treated as having committed a crime of violence. The Holloway court addressed Mayeux, wherein as in Holloway's case, the statute in Mayeux (La. R.S. 14:98) was amended between the date of the offense and the defendant's conviction and sentencing. Holloway, 217 So.3d at 348.
In 2007, the statute provided:
A. When the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in R.S. 14:2(B).
B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).
Pursuant to Holloway, we find that the general rule against retroactive application unless expressly stated, see La. R.S. 1:2, has been overcome by the specific language of La. R.S. 14:95.1(B). The plain language of La. R.S. 14:95.1(B) dictates that a defendant "found guilty" will be subject to the amended sentence range. The words "found guilty" are the same as "upon conviction," as interpreted by the supreme court in Holloway and Mayeux. The supreme court has found such wording material and, unless violative of the ex post facto prohibition, should be applied as written. Herein, there is no ex post facto violation because the amended sentence is ameliorative and does not increase the burden on the defendant. See Holloway, 217 So.3d at 348 (A law that "does not ... make more burdensome the punishment for a crime, after its commission ... survives an ex post facto analysis.") (quoting Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990)).
La. R.S. 1:2 provides that "No Section of the Revised Statutes is retroactive unless it is expressly so stated." --------
Accordingly, we find no error in the trial court's retroactive application of the amended version of La. R.S. 14:95.1(B), which became effective on August 1, 2017 (2017 La. Acts No. 281, § 1). The defendant's conviction and five-year sentence for the possession of a firearm by a convicted felon conviction are, therefore, affirmed. Further, the defendant's conviction and sentence for DWI, third offense, are affirmed.
The State's assignment of error is without merit.
REVIEW FOR ERROR
Pursuant to La. Code Crim. P. art. 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found a sentencing error.
Upon conviction for being a convicted felon in possession of a firearm, La. R.S. 14:95.1(B) mandates imposition of a fine of not less than $1,000.00 nor more than $5,000.00. The trial court did not impose a fine. Although the failure to impose the fine is error under La. Code Crim. P. art. 920(2), it is not inherently prejudicial to the defendant. Because the trial court's failure to impose the fine was not raised by the State, we are not required to take any action. As such, we decline to correct the illegally lenient sentence imposed on count one. See State v. Price, 2005-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. See also State v. Zeno, 2015-0763 (La. App. 1 Cir. 11/9/15), 2015 WL 6951581 (unpublished), writ denied, 2015-2233 (La. 12/16/16), 212 So.3d 1175.
CONVICTIONS AND SENTENCES AFFIRMED.
CRAIN, J., agrees in part, dissents in part.
I agree with affirming the defendant's conviction and agree the revised version of Louisiana Revised Statute 14:95.1, as amended in 2017, is applicable for purposes of sentencing the defendant. However, I disagree with not correcting the trial court's sentencing error omitting the mandatory fine. The defendant has no constitutional or statutory right to an illegally lenient sentence. See State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 797. In State v. Kondylis, 14-0196 (La. 10/3/14), 149 So. 3d 1210, the supreme court implicitly overruled that part of this court's decision in State v. Price, 05-2514 (La. App. 1 Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 07-0130 (La.2/22/08), 976 So. 2d 1277, which allowed a defendant's illegally lenient sentence to stand. Consistent with Kondylis, this court has corrected illegally lenient sentences, which omitted the mandatory fine required by Louisiana Revised Statute 14:95.1, by amending the sentence to include the mandatory minimum fine. See State v. Carter, 16-1078 (La. App. 1 Cir. 12/22/16), 210 So. 3d 306, 309; State v. Robertson, 14-0252, 2014WL4668685 (La. App. 1 Cir. 9/19/14). Allowing an illegally lenient sentence to stand simply because the error is favorable to the defendant and not objected to by the state, in light of Louisiana Code of Criminal Procedure article 890.1 and Kondylis, is not legally supportable. I would amend the defendant's sentence on count one to include the minimum fine of $1,000.
Effective May 17, 2012, the amended version provided:
A. Notwithstanding any other provision of law to the contrary, if a felony or misdemeanor offense specifies a sentence with a minimum term of confinement or a minimum fine, or that the sentence shall be served without benefit of parole, probation, or suspension of sentence, the court, upon conviction, in sentencing the offender shall impose the sentence as provided in the penalty provisions for that offense, unless one of the following occurs:
(1) The defendant pled guilty pursuant to a negotiated plea agreement with the prosecution and the court, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
(2) In cases resulting in trial, the prosecution, the defendant, and the court entered into a post-conviction agreement, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
B. If such agreements are entered into between the prosecution and the defendant, the court, at sentencing, shall not impose a lesser term of imprisonment, lesser fine, or lesser period of sentence served without benefit of parole, probation, or suspension of sentence than that expressly provided for under the terms of the plea or post-conviction agreement.
C. No plea or post-conviction agreement shall provide parole eligibility at a time earlier than that provided in R.S. 15:574.4.
D. Nothing in this Article shall apply to a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541.
E. At the time the sentence is imposed pursuant to this Article, the Uniform Commitment Sentencing Order shall specify that the sentence is imposed pursuant to the provisions of this Article.