State v. AbramState v. Abram
This case comes before us on remand from the Supreme Court of Louisiana. In our original opinion, following our decisions in State v. Everett,
The Louisiana Supreme Court granted writs, and remanded to this Court for consideration in light of its recent opinion, State v. Everett, 00-2998 (La.5/14/02),
The facts recited below are adapted from our original opinion:
McKinley L. Abram was convicted of simple burglary on May 7, 1998. He was sentenced as a fourth felony offender underLa. R.S. 15:529.1 to life imprisonment without benefit of parole, probation, or suspension of sentence after a hearing on February 9, 1999. He appealed, and in an unpublished opinion, this Court affirmed his conviction and adjudication as a fourth felony offender but vacated his | ^sentence and remanded the case for resentencing. State v.*1051 Abram,00-0413 (La.App. 4 Cir. 2/28/01) ,786 So.2d 984 .
At his resentencing on March 27, 2001, even though the defendant’s adjudication as a fourth felony offender was not at issue, the defense attorney, noting that this Court had recently handed down State v. Everett,99-1863 (La.App. 4 Cir. 9/27/00) ,770 So.2d 466 , argued that under Everett the defendant should not be sentenced as a fourth felony offender. The judge looked at the record and determined that the ten-year cleansing period was long enough to link the offenses, and he also noted that Everett was on writs to the Supreme Court. The defendant was then sentenced as a fourth felony offender to thirty years at hard labor.
McKinley Abram has four felony convictions: possession of talwin in violation ofLa. R.S. 40:969 in 1980; burglary of an inhabited dwelling in violation ofLa. R.S. 14:62.2 in 1981; distribution of a false drug in violation ofLa. R.S. 40:971.1 in 1991; and the most recent, simple burglary of an auto in violation ofLa. R.S. 14:62 in 1998. He argued that the five-year cleansing period in effect in 1991 had elapsed between his release from his 1981 imprisonment and his 1991 offense.
The trial court did not accept the defendant’s reasoning that the appropriate cleansing period was that of 1990, the time of the next offense. The court held instead that the proper cleansing period was that existing at the time of the instant multiple bill proceeding, and the period in 2001 was ten years. Because ten years had not elapsed between his 1985 release from prison and his 1990 offense, the defendant could be sentenced as a fourth felony offender.
In State v. Everett, 00-2998 (La.5/14/02),
The purpose of the Habitual Offender Law is to deter and punish recidivism. State v. Johnson, 97-1906, p. 8 (La.3/4/98),709 So.2d 672 , 677. To this end, subsection (A) of the statute sets out enhanced penalties to be imposed on persons who have been convicted of a felony and thereafter commit subsequent felonies. The statute provides the penalties after identifying the number of felonies committed by stating, for example, “If the second felony is such that...” and “If the third felony is such that....”
Subsection (C), however, provides that “[tjhis Section,” i.e., the Habitual Offender Law, “shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions.... and the time of the commission of the last felony for which he has been convicted.” We interpret this section to mean that in order to determine whether the Habitual Offender Law applies at all to 1 ^enhance a defendant’s sentence after conviction of a subsequent felony, we must look to that time period between defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony. If that time period encompasses more than ten years, then the Habitual Offender Law is inapplicable to defendant’s case and he cannot be sentenced as anything other than a first offender. If, on the other hand, ten years or less have elapsed between the defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony, then the Habitual Offender Law is applicable and sub*1052 section (A) is employed to determine the appropriate sentence. Under subsection (A), defendant’s felony convictions are simply counted, either second, third, or fourth or subsequent, and the applicable penalty is imposed .... [S]ubsection (C) is concerned only with that period of time between the expiration of the sentence for the last previous felony conviction and the commission of the last felony. It is only that time period which the legislature has made relevant to determine whether defendant will be sentenced under the Habitual Offender Law.
(Emphasis Added).
Everett, 00-2998, pp. 7-8,
Applying this interpretation of the Habitual Offender Law to the instant case we find that Abram is subject to.sentencing as a fourth felony offender. The fact that more than five years
j4In light of our finding that Abram must be sentenced as a fourth felony offender, and the fact that the trial court has previously sentenced the defendant as a fourth felony offender to thirty years in this case, bearing docket number 2001-K-1513 on the docket of this Court, we reinstate defendant’s sentence.
SENTENCE REINSTATED.
Notes
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