State v. DerouinState v. Derouin
The defendant, Donnis Derouin, was initially charged by bill of information with one count of possession of marijuana with intent to distribute and one count of distribution of marijuana, both counts being violations of
The trial court initially sentenced the defendant to serve five years at hard labor and pay a $750.00 fine but suspended the sentence and placed her on four years supervised probation. The state then filed a motion to reconsider the sentence, asserting that, because the defendant was a second felony offender, suspension of her sentence was prohibited by
In her first assignment of error, the defendant asserts that, because she had been pardoned for the first felony conviction, that conviction could not be used to enhance her sentence for her second conviction. In making this argument, the defendant acknowledges that she was convicted of felony theft in 1993. The state does not dispute that she received the automatic pardon granted to first felony offenders pursuant to
At the time of the defendant‘s pardon,
On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise....
(Emphasis added.)
The trial court based the five-year sentence on the provisions of
While
At the outset, we reject the argument that the failure of the legislature to refer to the suspension provision of
Further, while we have not found jurisprudence directly addressing the automatic pardon provision in the context of sentence suspension, there is jurisprudence holding that the automatic pardon provision does not preclude consideration of a prior conviction in different contexts. In State v. Wiggins, 432 So.2d 234 (La.1983), the supreme court explained that the automatic pardon provision did not erase a defendant‘s status as a convicted felon for purposes of the prohibition against a felon possessing a firearm under
Interpreting three separate Louisiana constitutional provisions, the jurisprudence has drawn distinctions between three situations involving the restoration of certain rights and privileges to convicted felons. In the first instance, where no pardon has been granted but the individual has served his sentence and is beyond the time of supervision by the state,
La. Const. art. 1, § 20 provides that full “rights of citizenship” are restored. These “rights of citizenship” have been interpreted, however, as comprising only a limited number of customary rights that a citizen may exercise, such as the rights to vote, work and hold public office. State v. Selmon, 343 So.2d 720 (La.1977); State v. Amos, 343 So.2d 166 (La.1977).At the opposite end of these situations, where the individual receives a full executive pardon by the governor, upon recommendation of the Department of Corrections, he is restored to the “status of innocence.” See the first sentence of
La. Const. art. 4, § 5(E)(1) quoted above; State v. Childers, 197 La. 715, 2 So.2d 189 (1941); and State v. Lee, 171 La. 744, 132 So. 219 (1931).Finally, the Louisiana Supreme Court recognized in State v. Adams, 355 So.2d 917 (La.1978), that there is a third situation, addressed in the second sentence of
Art. 4, § 5(E)(1) , that provides an automatic pardon to the first time offender upon completion of his sentence. In Adams, the defendant was convicted of armed robbery and the trial court sentenced him, as a second offender, to twenty-five years at hard labor. On appeal, the defendant asserted that the trial court erred in adjudicating him a second offender because the automatic, first offender pardon precluded the use of his first conviction as a basis for sentencing under the habitual offender statute.The high court held in Adams that although a full and complete pardon by the governor would preclude the use of a pardoned offense to enhance punishment, the automatic, first offender pardon established by
Art. 4, § 5(E)(1) was not equivalent to a full executive pardon. The Court stated:... We recognize that there is a difference in the effect of a “pardon” under
Art. 4, § 5(E)(1) , and restoration of “full rights of citizenship” underArt. 1, § 20 .Art. 1, § 20 restores only the basic rights of citizenship, such as the right to vote, work or hold public office. On the other hand,Art. 4, § 5(E)(1) restores privileges as well as rights, such as the privilege of holding a liquor license. That does not mean, however, that the automatic pardon provision restores the status of innocence to the convict who has merely served out his sentence.* * * * * *
A full pardon granted by the governor has presumably been given the careful consideration of several persons who have taken into account the circumstances surrounding the offense, and particular facts relating to the individual. We do not feel, however, that the delegates to the 1973 Constitutional Convention, in including this provision in the 1974 Constitution (or the legislature before them in proposing a similar amendment to
Art. 5, § 10 of the 1921 Constitution , La. Acts 1968, No. 662, § 1), intended that service of one‘s sentence be the only prerequisite for restoration of the status of innocence. If the legislature had intended that a first offense could not be relied upon for enhancement of punishment, it could easily have said so.Hence, we hold that the automatic pardon provision of
Art. 4, § 5(E)(1) does not preclude consideration of a first felony conviction in adjudicating a person as a habitual offender.
Id. at p. 922.
Likewise, we find that the automatic pardon provision of
In her second assignment of error, the defendant asserts that the trial court erred in not reconsidering her sentence as being excessive. In sentencing the defendant, the trial court concluded that it was statutorily prohibited from suspending the defendant‘s sentence. The trial court‘s specific comments at the time of sentencing were as follows:
I have reviewed Article 893 thoroughly. I have researched it, and, I cannot see where there is any leeway for the court. I think it‘s clear, to me at least after the State pointed it out, that the court could not suspend the sentence that was imposed because of the facts of this particular defendant‘s situation. As I said, she was convicted of a prior felony in ‘93, and, it‘s—while it‘s true that she received a first felony offender pardon, which is the automatic pardon, I don‘t find anything, or, didn‘t find anything that indicated that that pardon erased from the records, and, for future consideration, the fact that it was a prior felony conviction under the application of Article 893. [Defense counsel], while your point that it should have that affect [sic] may be something this court might be inclined to agree that it should, I don‘t find that it does. I‘ll say this for the record, and, I told you this a moment ago outside of the court proceedings, it‘s somewhat seems to be quite harsh to me where an individual can benefit from the passage of time when it comes to consideration of sentencing for habitual offender proceedings, there is a time limitation for consideration of prior offenses, but, I find none in this, so, conceivably, an individual who committed an offense forty years ago under 893 would lose eligibility if they were convicted of a particular enumerated offense. I question the wisdom of the Statutes in saying if they are an habitual offender you can only go so far back, but, under 893 you can go as far back as you want, or, at least that‘s the way I interpret it. So, I think that the application, under these circumstances, in my opinion, is harsh, probably too harsh, but, what I think really doesn‘t matter anymore because the law is the law and I have to follow the law, unless the Court of Appeals states that I was correct.
We find that the trial court erred in concluding that it was statutorily prohibited from sentencing the defendant below the statutory minimum. In State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), the supreme court stated:
[W]e recognize that the review of sentencing, including sentencing under
R.S. 15:529.1 , is a long established function of the judicial branch. Accordingly, Louisiana‘s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). According to Sepulvado, the 1974 Louisiana Constitution, Article I, Section 20 “`gives the courts, in the exercise of their judicial power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel or unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court‘s control over the entire sentencing process.‘” Id. at 766, citing “The Declaration of Rights of the Louisiana Constitution of 1974“, 35 La.L.Rev. 1, 63 (1974). Thus, “[t]he imposition of a sentence, although within the statutory limit, may violate a defendant‘s constitutional right against excessive punishment ...” Id. at 767.Accordingly, under the 1974 Constitution “the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.” Id. at 764. “A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Scott, 593 So.2d 704, 71[1] (La.App. 4th Cir.1991); State v. Lobato, 603 So.2d 739, 751 (La. 1992).
(Footnote omitted.)
The supreme court further recognized in State v. Fobbs, 99-1024 (La.9/24/99); 744 So.2d 1274, that the holding in Dorthey was not restricted to only sentences imposed pursuant to the habitual offender law.
Although we find that the trial court erred in its assessment of the degree of discretion it had in sentencing the defendant, we also find that the defendant‘s sentence is not excessive. The trial court imposed the minimum period of incarceration available under
In mitigation, the trial court considered that the defendant was forty-three years old with six children to support and was a high school graduate. While noting that the defendant had satisfactorily completed her five-year probation period for the first felony conviction, the trial court also noted that the defendant acknowledged a daily marijuana habit. In the original sentencing, the trial court merely stated that it was giving the defendant the opportunity to raise her children and remain out of jail through the suspended sentence.
In State v. Dubroc, 99-730 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, this court held:
To constitute an excessive sentence, this court must find the penalty imposed is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals; and, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La. App. 3 Cir. 3/6/96); 670 So.2d 713.
Given the minimum nature of the sentence imposed, the prior felony conviction, and the benefit gained by the defendant through the plea bargain, we cannot conclude that the penalty imposed is so grossly disproportionate to the severity of the crime of possession with intent to distribute marijuana as to shock our sense of justice or that the five-year sentence makes no measurable contribution to acceptable penal goals. Thus, we find no merit in the defendant‘s assignments of error.
DISPOSITION
For the foregoing reasons, we affirm the defendant‘s conviction and sentence in all respects.
AFFIRMED.
THIBODEAUX, J., dissents and assigns written reasons.
The five-year sentence is excessive under the circumstances of this case. The comments of the trial judge are in accord with this assessment. However, the trial judge, in my view, felt he was compelled to impose this sentence. As the majority points out, State v. Dorthey, 623 So.2d 1276 (La.1993) and State v. Fobbs, 99-1024 (La.9/24/99); 744 So.2d 1274 allow the trial court the discretion to sentence a defendant below the statutory minimum under certain circumstances. I would, therefore, remand the case to the trial court to allow it to determine whether the minimum sentence mandated by
For the foregoing reasons, I respectfully dissent.