State v. JohnsonState v. Johnson
The Statе charged the defendant, Alphonse Johnson, with armed robbery, a violation of
In August of 1977, Michigan paroled the defendant. He then waived extradition and returned to Louisiana. In December, 1977, the court sentenced him to thirty-five years’ imprisonment without benefit of probation, pаrole, or suspension of sentence, but with credit for time served in both Louisiana and Michigan.
ASSIGNMENT OF ERROR NO. 1
The defendant asserts that the seven-year delay between his conviction and sentence dеnied him a speedy trial and speedy appeal guaranteed him by the United States and the Louisiana Constitutions, requiring a reversal of his conviction and sentence. This assignment raises a substantial issue.
The issue is whether the
This Court has previously held that the constitutional guarantee of a speedy trial does not extend to delays in the aрpeal. State v. Rhodes, La., 308 So.2d 770 (1975); State v. Lane, La., 302 So.2d 880 (1974). See also State v. Lagerquist, 254 S.C. 501, 176 S.E.2d 141 (1967); State v. Tahash, 277 Minn. 309, 152 N.W.2d 786 (1967).
In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the United States Supreme Court “assume[d] arguendo” that the Speedy Trial Clause applied to sentencing for purposes of the decision. Considering this assumption, some courts have applied the Speedy Trial Clause to sentencing. See, e. g., Juarez-Casares v. United States, 496 F.2d 190 (5th Cir. 1974). However, neither the United States Suprеme Court nor this Court has ever squarely passed upon the question of whether the guarantee of a speedy trial extends to sentencing.
The Sixth Amendment reads as follows:
“In all criminal рrosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Article 1, § 16 of the Louisiana Constitution provides:
“Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.”
When the words are given their fair import in connection with the context, both clauses are properly construed as referring to the adversary hearing that determines guilt or innocence. By its terms, the Sixth Amendment applies to аn accused. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It refers “to a speedy and public trial, by an impartial jury.” The Amendment later assures the right to be confronted by the witnesses and the right to compulsory process to secure the witnesses.
The Louisiana clause refers to a “person charged with a crime” and to a “speеdy, public, and impartial trial in the parish where the offense or an element of the offense occurred.” It then adverts to a change of venuе, the right against self-incrimination, and to the confrontation of witnesses. None of the language in either clause is relevant to sentencing.
Three cоnsiderations underlie the right to a speedy trial: to prevent undue and oppressive incarceration prior to trial;
Other principles support the view that sentencing is not a рart of the traditional notion of trial. The term “trial” is defined as the proceedings to determine a defendant‘s guilt or innocence, commencing with thе empaneling of the jury and ending with a rendition of the verdict. Jeffries v. Municipal Court of City of Tulsa, Okl.Cr., 536 P.2d 1313 (1975); Black‘s Law Dictionary 1675 (4th ed. 1968). See also State v. Hughes, 170 La. 1063, 129 So. 637 (1930). Moreover, sentencing is not a step in the normal order of trial.
The American Bar Association “Standards Relating to Speedy Trial” (Approved Draft, 1968) makes no reference to sentencing. An examinatiоn of the standards indicates that the American Bar Association authorities did not regard sentencing procedure as part of the trial.
In conclusiоn, we hold that the defendant‘s constitutional right to a speedy trial does not encompass sentencing or appeal.
The defendant, however, is statutorily entitled to imposition of sentence “without unreasonable delay.”
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
The defense avers that his 35-year sentence is unjust and еxcessive because it is greater than those sentences imposed in the early 1970‘s for armed robbery.
In pronouncing sentence, the trial judge noted that the defendant threatened the victim with a knife and that he had a prior criminal record. The trial judge, however, did not consider the Michigan conviсtions, which occurred after the conviction for which he was being sentenced. The trial judge stated that he would “insofar as humanly possible” impose thе same sentence that a court would have imposed at the time of the conviction in 1970.
Armed robbery carries a minimum sentence of five years and a maximum of ninety-nine.
This assignment of error is without merit.
We have examined the remaining assignments of error and find that the allegations are insubstantial.
CALOGERO, J., concurs.