State v. RobertsonState v. Robertson
- Reporters:
- ,
- Before:
- Ulysses Gene Thibodeaux, Marc T. Amy, Michael G. Sullivan
The Defendant, Timothy E. Robertson, appeals his jury conviction for the creation or operation of a clandestine laboratory for the unlawful manufacture of methamphetamine, second offense, in violation of
He challenges the sufficiency of the evidence presented at trial, the denial of his motion to suppress, the trial court‘s admission of evidence of other crimes, and the denial of his motion to quash. Because we find merit in the Defendant‘s latter two contentions, we vacate the Defendant‘s conviction and sentence and remand for further proceedings. Louisiana Revised
Defendant contends the State improperly included
At the hearing on the motion to quash, the trial court, following jurisprudence from this court, ruled that
In Skipper, the defendant filed a motion to quash the bill of information charging him with a second drug offense under
[W]e hold that
La.R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, likeLa.R.S. 15:529.1 , and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drug-related offense nor may evidence of the prior offense be presented to the jury determining the defendant‘s guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement underLa.R.S. 40:982 .State v. Murray, 357 So.2d 1121 (La. 1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under
La.R.S. 40:982 , are hereby overruled.So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied
La.R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.
In reaching its conclusion, the Skipper court found that
Skipper was in the pretrial stage when the issue concerning the inclusion of the prior offense in the bill of information was raised. The supreme court noted that it was not called upon to discuss the applicability of a harmless error analysis or the “possible ameliorative effects of a limiting instruction post-[State v.] Green[, 493 So.2d 588 (La.1986)], to circumstances in which a prior offense was listed in the charging instrument, read to the jury and
The State points out that the status of Skipper is different than in this case in that Skipper was decided pre-trial. It contends that a harmless error analysis should be conducted and that the error was harmless in this case.
The Defendant in the present case had been convicted and sentenced when the Skipper opinion was issued. Thus, we will first address whether the decision should be retroactively applied to Defendant before proceeding with a discussion of the applicability of a harmless error analysis.
In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the supreme court traced the evolution of United States Supreme Court cases addressing the retroactivity of new rulings to cases final at the time the new ruling was rendered as well as those that were pending on direct review at the time the new ruling was issued.2 In doing so, the supreme court discussed Justice Harlan‘s suggestion of a new test for retroactivity in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971):
Accordingly, he proposed a general principle whereby “all constitutional errors not waived or harmless are correctable on habeas and by defining such errors according to the law in effect when a conviction became final.” Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under this general principle, new rules would not be given retroactive effect on collateral review, although they would be applied to cases pending on direct review. However, Justice Harlan created two exceptions in which he would give retroactive effect to new rules on collateral review. The first exception involved new substantive due process rules—i.e., rules placing certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. The second exception referred to new rules which required observance of “those procedures that . . . are implicit in the concept of ordered liberty” and altered our understanding of the “bedrock procedural elements” of a fair trial....
In the next several years, the Court began to gradually move away from Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)] and toward the analysis suggested by Justice Harlan. The Court began by adopting Justice Harlan‘s view that a new rule should be applied retroactively to all cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).
Taylor v. Whitley, 606 So.2d at 1294.
The Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”
The Taylor court also discussed pertinent Louisiana court rulings on retroactivity:
Turning now to our state law decisions on retroactivity, we find they have also recognized the principle that the constitution does not prohibit nor require courts to give retroactive application to criminal law decisions. State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Our cases decided after Linkletter reflect the confused state of the law under that case. . . . .
Subsequently, our cases have followed Griffith v. Kentucky, supra, and have applied new rules to cases pending on direct review or not yet final. See State v. Sanders, 523 So.2d 209 (La.1988); State v. St. Pierre, 515 So.2d 769 (La. 1987). In fact, we recently applied the Cage rule to a case pending on direct appeal at the time Cage was rendered. State v. Smith, 600 So.2d 1319, 1326 n. 5 (La.1992).
There are at least two more recent cases in which the supreme court and second circuit, relying on Griffith, applied a new ruling to a case pending on appeal. See State v. Naquin, 00-291 (La.9/29/00), 769 So.2d 1170 and State v. Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293. Skipper, in our view, announced a “new rule” in that the result in Skipper was not dictated by existing precedent.
In light of the foregoing jurisprudence, Skipper is retroactively applied to Defendant‘s case. When Skipper was decided, Defendant had been convicted and sentenced and his motion to reconsider sentence was pending. Clearly, his conviction was not yet final and the foregoing jurisprudence supports the retroactive application of Skipper to his case.3 Thus, it was error for the State to include the prior offense in the bill of information.
Because operation of a clandestine laboratory, second offense, is a “non-crime,” as expressed in the jurisprudence, the conviction and sentence for a violation of
In Skipper, the defendant was originally charged by bill of information with violating
We note that our court has recently applied Skipper retroactively and has held that it is error to include a prior offense in
CONCLUSION
Pursuant to Skipper, 906 So.2d 399,
CONVICTION AND SENTENCE VACATED. REMANDED FOR FURTHER PROCEEDINGS.