State v. LeCompteState v. LeCompte
STATE of Louisiana
v.
Kenneth LeCOMPTE, et al.
STATE of Louisiana
v.
Deborah EWING and Luke Dubaz.
Supreme Court of Louisiana.
*1301 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Robert Long, Michael Fanning and Louise S. Korns, Asst. Dist. Attys., for plaintiff-appellant.
Sheryl L. Jarvits, Joseph Beeler, James J. Hogan, Miami, Fla., Frank G. DeSalvo, Robert Zibilich, Edward M. Baldwin, New Orleans, William Moran, Miami, Fla., for Kenneth LeCompte et al.
William H. Slaughter, III, Noble, Slaughter, Clayton & Lorenz, New Orleans, for Deborah Ewing and Luke Dubaz.
WATKINS, Associate Justice Ad Hoc[*].
These are consolidated criminal appeals which involve the constitutionality of Louisiana Act No. 313 of 1979. Defendants in the first consolidated appeal (80-K-2213) are Kenneth LeCompte, John Lagrange, Pedro Rodrigues, G. Vera Martinez, and John M. Hirschler, and in the second consolidated appeal (80-KA-2271) defendants are Deborah Ewing and Luke Dubaz. The former defendants were proceeded against by bill of information for possession of 16,000 lbs. of marijuana, and the latter defendants were proceeded against by indictment for *1302 possession of cocaine and "related substances" in the amount of over 400 grams. Motions to quash were filed and granted in each of the two consolidated appeals. The State now appeals these rulings.
The charges against both sets of defendants involve the allegation that they violated Louisiana Act No. 313 of 1979, which is contained in the Revised Statutes of this state as
"E. (1) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses one hundred pounds or more, but less than two thousand pounds of marijuana, tetrahydrocannabinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than ten years, and to pay a fine of not less than twenty-five thousand dollars.
(2) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses two thousand pounds or more, but less than ten thousand pounds, of marijuana, tetrahydrocannobinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than fifteen years, and to pay a fine of not less than fifty thousand dollars.
(3) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses ten thousand pounds or more of marijuana, tetrahydrocannabinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than twenty years, and to pay a fine of not less than two hundred thousand dollars.
F. (1) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars.
(2) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses two hundred grams or more, but less than four hundred grams, of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fine of not less than one hundred thousand dollars.
(3) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses four hundred grams or more of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years, and to pay a fine of not less than two hundred fifty thousand dollars.
G. (1) Except as provided in Paragraph (2) hereof, with respect to any person to whom the provisions of Subsections E and/or F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsections E and/or F.
(2) The district attorney may move the sentencing court to reduce or suspend the sentence of any person to whom the provisions of Subsections E and/or F are applicable who provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes. The arresting agency shall be given an opportunity to be heard in reference to any such motion. The court may reduce or suspend the sentence if it finds that the defendant rendered such substantial assistance."
The motions to quash were founded upon the contention that the subject statute was unconstitutional. The arguments in support *1303 of this contention, stated briefly, were that: (1) The statute provides for cruel and unusual punishment contrary to the Eighth Amendment to the United States Constitution, and "cruel, excessive, or unusual punishment" contrary to the provisions of Article I, Section 20 of the Louisiana Constitution of 1974 because the penalties provided are unduly harsh and because no maximum is required for the mandatory fine. (2) The statute in permitting a reduction or suspension of sentence by the trial court, on motion of the district attorney, to one "who provides substantial assistance in the identification, arrest, or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes", coerces a waiver of Fifth Amendment rights by giving legislatively sanctioned preference to one who engages in self-incrimination and, further, violates the doctrine of separation of powers by delegating some of the exclusive sentencing powers of the judiciary to the district attorney. (3) Subsection G(2) of the statute is impermissibly vague in its use of the term "substantial assistance" without providing any criteria by which it can be determined objectively as to when substantial assistance has been rendered.
By Act 313 of 1979, the Louisiana legislature amended
"Section 893.135 was enacted to assist law enforcement authorities in the investigation and prosecution of illegal drug trafficking at all levels of distribution, from the importer-organizer down to the `pusher' on the street. The harsh mandatory penalties of subsection (1), ameliorated by the prospect of leniency in subsection (3), were clearly calculated to provide a strong incentive for drug violators to cooperate with law enforcement authorities and become informers. No one argues that the elimination of illegal drug traffic is not a beneficial and worthwhile goal, or that the goals of this legislation are not meritorious."
We find the above statement of the Florida Supreme Court clearly sets forth the general purpose of the Louisiana legislature in enacting Act 313 of 1979, and we have no doubt that legislature was motivated by legitimate, and indeed, wise and proper considerations, in view of the substantial increase in drug smuggling activities along the Louisiana coast.
EXCESSIVE PUNISHMENT
However commendable the legislative purpose, we find the penal portion of the statute (Subsections E and F) unconstitutionally provides for a minimum fine with no maximum, our decision in State v. *1304 Goode,
In the present case, it takes only a little imagination to think of a fine that would be grossly disproportionate to the offense prohibited, especially in view of the fact that the statute in its various gradations carries with it a term of imprisonment which the court is required to impose on top of the unlimited maximum of the fine. However despicable trafficking in drugs, and however admirable the legislative purpose in seeking to put an end to or even a partial cessation of the practice, we cannot uphold a statute that permits an unlimited fine, especially as we have struck down a somewhat similar statute in State v. Goode, supra on the ground that it violated the excessive punishment clause of this state's Constitution.
Defendants contend that sentences mandated by Subsections (E), (F) and (G) are unduly harsh and, therefore, constitute "cruel and unusual" punishment contrary to the Eighth Amendment to the United States Constitution, and "Cruel, excessive or unusual" punishment contrary to Article 1, Section 20 of the Louisiana Constitution of 1974. The defendants argue that under the standards set forth in Gregg v. Georgia,
"According to the defense a guarantee that the sentence be proportioned to the offense is to be found in Gregg v. Georgia,428 U.S. 153 ,96 S.Ct. 2909 ,49 L.Ed.2d 859 (1976). Such a proposition is in the first instance a matter which falls squarely within the constitutional prerogative of the Legislature. Except as limited by the constitution its authority is plenary. Its determination is clothed with a presumption of constitutionality which persists until a finding is made, supported by adequate evidence, that the enactment prescribing punishment has transcended the limitation on legislative power set forth in constitutional enactments of equal or superior dignity. La. Const. arts. I, II, III & V; La.Civil Code art. 1."
(
We, therefore, find the statute to be unconstitutional only insofar as it provides no maximum fine, and sever those portions of the statute that provide the minimum fine, thus permitting to remain only that portion providing for a term of imprisonment.[1] With the unconstitutional minimum fine excised, the remainder of the statute still accomplishes the legislative purpose, thus fulfilling the requirements of severability. State v. Johnson,
*1305 SELF-INCRIMINATION
Defendants contend that conditioning their right to relief from the severe mandatory sentences imposed under
Even in cases where a defendant's claim of privilege is reasonable, the use of the "substantial assistance" provision as a prerequisite to leniency in sentencing need not work to penalize the defendant for asserting his privilege. The benefits of Subsection (G) (2) could be obtained by a cooperating defendant in a manner consistent with constitutional law regarding assertion of *1306 the self-incrimination privilege, since a valid claim of the privilege could be overcome with a grant of immunity from further prosecution. See Roberts v. United States,
Accordingly, we hold that the statute as it stands does not offend the defendants' rights against self-incrimination and is, therefore, constitutionally valid.
SEPARATION OF POWERS
Defendants contend that the "substantial assistance" provisions of
As stated earlier, the newly-enacted "trafficking" provisions of
Subsequent to conviction, Subsection (G)(2) grants the district attorney the discretion to move the sentencing court to reduce or suspend the sentence of any person who provides substantial assistance. Thus, it is argued, that as to defendants who attempt to provide assistance the range of possible sentences lies, at least initially, within the discretion of the district attorney. Once the district attorney has moved for the reduction or suspension, the decision as to whether or not to grant the reduction or suspension is by the statute solely within the court's discretion. The final or ultimate decision, therefore, rests not with the district attorney, but with the courts. While it is true that this provision of the statute does not permit the courts to act on their own motion, the effect of this provision is to broaden the sentencing discretion of the courts under the full statute. As the basic limitation (mandatory minimum sentence without authority to suspend) of the sentencing discretion of the courts is constitutional (State v. Normand, supra,) the conditional removal of that limitation cannot be considered unconstitutional.
We have also considered a question not raised by defendants in brief: Does the statute grant to the courts the power to commute sentences, which is a power limited by the Louisiana Constitution to the governor alone?
The governor is granted the power to commute sentences by Art. 4, Sec. 5 of the Louisiana Constitution of 1974. The pertinent portion of the cited Article and Section reads as follows:
"(E) Pardon, Commutation, Reprieve, and Remission; Board of Pardons.
(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those voncited of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without *1307 a recommendation of the Board of Pardons and without action by the governor.
(2) The Board of Pardons shall consist of five electors appointed by the governor, subject to confirmation by the Senate. Each member of the board shall serve a term concurrent with that of the governor appointing him."
Although the language of the comparable provision of the Louisiana Constitution of 1921 differed, the meaning of the comparable provision (Art. V, Sec. 10) was for purposes of our consideration identical: The governor on recommendation of the Board of Pardons (or, under the 1921 Constitution, the lieutenant governor, attorney general, and the trial judge, or any two thereof) may commute sentences. The constitutional grant of the power to commute sentences to the governor (on recommendation of the "Board of Pardons" or any two members thereof) was held by this Court to be an exclusive grant to the governor of the power to commute sentences in State ex rel. Francis v. Resweber,
We must then address the question of whether or not the restriction of the power to commute sentences to the governor, likewise restricts the power to "reduce" sentences to the governor, using the word employed by the statute under consideration. As used in criminal law, the word "commutation" is defined as follows in Black's Law Dictionary (4th ed. 1951):
"The change of a punishment from a greater to a less; as from hanging to imprisonment."
Clearly, a reduction of sentence by the judiciary under
The Code of Criminal Procedure in Art. 881 permits the trial court to "amend or change" a sentence prior to the beginning of its execution. In language in Comment (a) under that article the redactors state that reduction of sentence after the beginning of its execution should be impermissible, as to so permit would virtually constitute the trial judge as a "`one man pardon board'". The language of that comment was quoted by this Court with approval in State v. Battaglia,
The statute under consideration,
However, if a statutory provision is susceptible of both a constitutional and an unconstitutional interpretation, it must be interpreted so that its constitutionality will be sustained. The legislature is presumed not to intend to enact an unconstitutional statute. 16 C.J.S. Constitutional Law, Sec. *1308 98. Thus, we must interpret
DUE PROCESSVAGUENESS
Defendants contend that
In order to satisfy the constitutional requirements of due process a statute creating or defining an offense and fixing the punishment therefor must be sufficiently explicit in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty, fix an ascertainable standard of guilt, and make it known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. 16A C.J.S. Constitutional Law, Sec. 580, State v. Baker,
The phrase "substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or related crimes" is sufficiently definite in the context of the statute taken as a whole. We find the language of the provision sets forth the requirements for leniency with as much exactitude as it is reasonably possible for a statute to do, and that the provision is susceptible of common understanding and can, therefore, be uniformly applied.
We, therefore, find the statute constitutional in all respects except in that part which imposes a minimum fine and no maximum, and strike down that part. We further find that the statute must be so interpreted that a reduction of sentence cannot be granted by the courts of this state after the commencement of execution of sentence.
We vacate the granting of the motions to quash in the two individual cases now before us, and remand the cases for further proceedings in accordance with the views expressed in this opinion.
MOTIONS TO QUASH DENIED.
DIXON, C. J., concurs in part and dissents in part, agreeing that the provisions concerning the fine should be excised and that the statute is not unconstitutionally vague and does not violate the doctrine of separation of powers, but otherwise disagreeing with the conclusion that there is a conflict with the governor's power to commute sentences.
WATSON, J., concurs in part and dissents in part, and assigns reasons.
LEMMON, J., concurs and assigns reasons.
WATSON, Justice, concurring in part and dissenting in part.
I concur with the majority that the sentencing provisions must be restricted by excising the unconstitutional penalty of unlimited fines.
However, R.S. 40:967 G (2) is also unconstitutional in giving the district attorney a judicial role in sentencing, and should be excised in that respect.
Therefore, I concur in part and dissent in part.
*1309 LEMMON, Justice, concurring.
I agree with the principal holding in this case, which is that the provisions of R.S. 40:967 E, F and G as to the fine must be struck because no maximum fine has been established. Therefore, the trial court's ruling on the motion to quash must be reversed in all respects except insofar as the ruling strikes the fine from the statute.
The constitutionality of a statute which places exclusive authority in the district attorney to move for suspension or reduction of a mandatory minimum sentence presents more difficulty, but need not be decided in this case. R.S. 40:970 G (2) is not facially unconstitutional, because the statute can be construed extensively to be constitutional. That is, since the statute expressly authorizes the trial court to grant a suspension or reduction of the mandatory minimum sentence when the defendant had provided substantial assistance in the identification, arrest or conviction of other drug violators, then the statute may be construed to authorize the trial court to do so, not only on the district attorney's motion, but also on the motion of the defendant or on the court's own motion.[1] I would leave this question to be decided in a factual context, rather than on a motion to quash.
I would also leave for adjudication in future cases the question of whether the Legislature can authorize the trial court to reduce a sentence after execution has begun. While I have serious doubts that such action constitutes commutation of the sentence or invades any exclusive power of the governor, the language of the majority opinion is not necessarily to the holding, and I expressly decline to subscribe to that language.
ON REHEARING
CALOGERO, Justice.[*]
On original hearing, we considered the constitutionality of
We found the remainder of the statute, including
This concern on rehearing focuses upon the role given the district attorney by
The interpretation of
On original hearing we concluded that Louisiana's constitutional separation of powers was not offended, even conceding (or assuming) that a fully discretionary motion by the district attorney is required to trigger the trial judge's exercise of the discretion afforded him by the statute to reduce or suspend the sentence. We reasoned that the final or ultimate decision to reduce or suspend the sentence rests not with the district attorney but with the courts. This reason for finding that the statute did not violate Louisiana's separation of powers was the identical one given by the Florida Supreme Court in interpreting an almost identical statute under a similar separation of powers attack. State v. Benitez,
"So long as a statute does not wrest from courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities."
We are not persuaded by the logic of those opinions. Giving the trial judge the final authority to impose a reduced or suspended sentence, if the district attorney is his discretion decides to recommend such, is hardly a good argument that the judiciary's power to sentence following conviction is not invaded by the district attorney. More persuasive in our view are Esteybar v. The Municipal Court for the Long Beach Judicial District of Los Angeles County,
In Esteybar, the defendant was charged with possession of marijuana, an offense which in the absence of any prior felony convictions may be treated as either a felony or a misdemeanor. The statute, however, dictated that the magistrate could proceed with the offense as a misdemeanor only after first obtaining the consent of the prosecuting attorney. The California Supreme Court found that this statute violated the doctrine of separation of powers set forth in the California Constitution, concluding among other reasons:
"Under our system of separation of powers, we cannot tolerate permitting such an advocate [the prosecuting attorney] to possess the power to prevent the exercise of judicial discretion as a bargaining tool to obtain guilty pleas."95 Cal.Rptr. 524 ,485 P.2d at 1144 .
The court concluded that the defendant was surely entitled to have an independent determination of whether he should be held to answer on a felony or misdemeanor and this was not possible when the exercise of judicial discretion depended upon the pleasure of the executive.
The On Tai Ho case also involved the constitutionality of a prosecutorial veto over an exercise of judicial power. At issue was a California Penal Code provision which required the consent of the prosecutor before a trial judge might order that a defendant charged with a narcotic offense be diverted into a pretrial program for treatment and rehabilitation. The court *1311 quoted an earlier decision, People v. Tenorio,
"The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interest of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise."
The court then held that the provision being challenged was an impermissible invasion of the constitutional province of the judiciary and therefore violative of the constitutional requirement of separation of powers.
Louisiana's Constitution divides the state's governmental powers among three distinct branches: legislative, executive and judicial.
In this reconsideration of the separation of powers issue, we are not satisfied with our earlier reasons. If the trial court's decision whether to reduce or suspend the sentence is conditioned upon the district attorney's arbitrary discretion, admittedly coupled with his having to prove defendant's substantial assistance in the identification, arrest or conviction of other parties, the consequent sentencing (reduced or not, suspended or not) is at least as much the discretionary choice of the district attorney as that of the trial judge. Actually it is more so the choice of the district attorney if his motion is an outset requirement in order to permit the sentencing judge's considering a reduced or suspended sentence. Under Louisiana's constitutional separation of powers, the district attorney, a member of the executive branch, should have no role in sentencing, an obvious judicial function.
As we stated above, if the sentence is interpreted as defendant urges, it would likely violate the separation of powers articles of the Louisiana Constitution. However, the statute is subject to more than one reasonable interpretation and we should interpret statutes in such a way as to uphold their constitutionality. State v. Newton,
Basically,
Another reasonable interpretation is that the court is very specifically given the discretion to reduce or suspend sentence if it finds that the defendant has rendered substantial assistance, etc. Although there also appears a specific provision for the district attorney to so move, the court's discretion and authority under this interpretation is express and not conditional. Since the court has the discretion to reduce or suspend sentence when the defendant has met the requirements of the statute, the court may do so on its own motion, or its ruling may be triggered by motion of either the district attorney or the defendant.[3]
We interpret the statute in accordance with the preceding paragraph and in so doing obviate a constitutional separation of powers problem. Under our interpretation, there is no exclusive authority in the district attorney and there is thus no invasion of the judge's sentencing powers. The statute is therefore constitutional.
DECREE
For the foregoing reasons, and for the other reasons expressed in our original opinion not inconsistent herewith, the trial judge's ruling on the motion to quash is reversed and the case is remanded to the trial court.
ORIGINAL DECREE REINSTATED; MOTION TO QUASH DENIED.
DIXON, C. J., dissents with reasons.
MARCUS, J., dissents and assigns reasons.
BLANCHE, J., dissents for reasons assigned by DIXON, C. J.
DIXON, Chief Justice (dissenting)
I respectfully dissent, believing R.S. 40:967 G does not authorize the exercise of the judicial power by the district attorney, and therefore does not violate the doctrine of separation of powers. The provisions for unlimited fines are probably unconstitutional on the face of the statute.
MARCUS, Justice (dissenting).
Since the final or ultimate decision to reduce or suspend the sentence rests with the court and not the district attorney, I do not consider that the statute in question violates the constitutional requirement of separation of powers. Moreover, I disagree with the interpretation of the statute by the majority. Accordingly, I respectfully dissent.
NOTES
[*] Judges Frederick S. Ellis, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.
[1] Act 313 of 1979 contained the following severability clause:
"Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable."
[2] In State v. Benitez, supra, the Florida Supreme Court cogently answered the contention that a similar provision was in violation of Fifth Amendment rights as follows:
"Finally, the appellees argue that section 893.135 coerces a defendant into relinquishing his fifth amendment privilege against self-incrimination by denying him sentencing leniency unless he cooperates with the authorities. We reject this argument, primarily because it depends on unwarranted assumptions about the nature of the informer's disclosures. Nothing in the statute suggests that "substantial assistance" must incriminate the defendant of crimes other than those for which he has already been convicted (and for which no fifth amendment privilege is obviously necessary). We acknowledge the risk of prosecution in other jurisdictions. Nonetheless, a defendant need not invoke subsection (3), as nothing in the statute is compulsive. Putting a defendant to a difficult choice is not necessarily forbidden by the fifth amendment. See, e.g., Corbitt v. New Jersey, [
With respect to those cases which say that the trial courts may not enhance a sentence based on a defendant's failure to cooperate with the authorities, see United States v. Garcia,
[3] Though the Louisiana statutory scheme is phrased only in terms of affording leniency to a cooperating defendant (rather than punishing a non-cooperating one), the same principles and considerations expressed in Roberts are applicable.
[1] The fact that the Legislature has granted the trial court express authority to suspend or reduce the mandatory minimum sentence, upon a finding of defendant's "substantial assistance", and has expressly authorized the district attorney to file such a motion does not necessarily preclude the defendant or the court from filing such a motion.
Notes
[*] Consistent with the procedures utilized by this court in assigning Court of Appeal Judges to sit as Justices Ad Hoc in criminal appeals (see State v. Petterway,
[1] Codefendants with LeCompte are John LaGrange, Pedro Rodriguez, G. Vera Martinez and John V. Hirschler.
[2] The minimum sentence becomes longer as the quantity of contraband possessed increases. For possession of ten thousand pounds or more of marijuana, or four hundred grams or more of cocaine, the minimum sentence is fifteen years at hard labor.
[3] As Justice Lemmon noted in his concurring opinion on original hearing, the fact that the Legislature has granted the trial court express authority to suspend or reduce the mandatory minimum sentence upon finding that the defendant has rendered "substantial assistance," and has expressly authorized the district attorney to file such a motion does not necessarily preclude the defendant's filing such motions or the court's acting under the statute on its own motion.