State v. VentressState v. Ventress
On November 2, 2000, defendant, John Ventress, was charged with the September 6, 2000 aggravated flight from an officer.
On July 9, 2001, the date set for trial, the defendant indicated he wished to plead guilty to aggravated flight. He was advised of his constitutional rights, including the three core rights, and executed a Waiver of Rights form containing the sentence agreed upon prior to the plea. The trial judge questioned the defendant concerning his understanding of his waiver of rights before accepting the negotiated guilty plea. Thereafter, the trial judge sentenced the defendant to 16 months’ imprisonment at hard labor, the agreed-upon sentence.
On the same date, the State filed a multiple bill wherein it alleged that the defendant was a third-felony offender, having a prior conviction for attempted first degree murder (
The State objected to the sentence as being illegally lenient. On July 13, 2001, the State filed a written motion for appeal.1
The facts are those derived from the arrest report:
On September 6, 2000, police observed a suspect, later identified as John Ventress, as he drove at a rate of speed of 97 miles per hour on Clearview Parkway, in Jefferson, which has a posted speed rate of 60 miles per hour. He disregarded the attempts by officers to stop him. He accelerated to 100 miles per hour, ran a red light, and straddled a double yellow line in the roadway before losing control of the vehicle and hitting a parked car. Ventress fled on foot. When apprehended, the suspect struggled with the police. He was eventually subdued, charged with the present offense and seven additional legal violations.
DISCUSSION
The State contends that the sentence imposed on defendant as a third-felony offender is illegally lenient.
The defendant argues that the sentence imposed was correct. He contends that the amendments to the multiple offender sentencing provision were in conflict with those contained in the statute prior to its amendment and, therefore, when faced with the conflict, the trial judge was required to impose the more lenient sentence.
At the time of the commission of the current offense, September 6, 2000, aggravated flight carried a penalty of imprisonment at hard labor for a term of up to two years.
At the time of the commission of the current offense, the enhanced penalty provision for third-felony offenders provided, in part, as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.
LSA-R.S.15:529.1(A)(2)(b)(i) , (ii) .
Therefore, under the multiple offender statute as it existed at the time of the commission of the present offense, defendant, with a prior conviction for a crime of violence, would have been subject to imprisonment “for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.”
During the 2001 Regular Session, the Louisiana Legislature enacted Act 403, which became effective on June 15, 2001. 2001 La. Acts 403, Section 7. The Act amended the penalty provisions of numerous
The amended provisions of the Multiple Offender Statute currently provide as follows:
LSA-R.S.15:529.1. Sentences for second and subsequent offenses; certificate of warden or clerk of court in the State of Louisiana as evidence:
A. (1) Any person who, after having been convicted within this State of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children‘s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other State or of the United States, or any foreign government of a crime which, if committed in this State would be a felony, thereafter commits any subsequent felony within this State, upon conviction of said felony, shall be punished as follows:
. . . .
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
. . . .
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of the commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.
(Bold indicates changes in the law).
In the present case, defendant has one prior conviction for a crime of violence (i.e., attempted first degree murder,
On appeal, the State argues that the Multiple Offender Statute, as amended by 2001 La. Acts 403 is inapplicable to this defendant. We agree.
In recent decisions by this Court, the application of sentencing provisions amended by 2001 La. Acts 403 was discussed. This Court‘s most recent decision is State v. Joseph Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208. In that case, defendant pled guilty to possession with the intent to distribute cocaine, a violation of
In our decision in Flagg, we relied on previous holdings from this Court. In one previous decision, the subject arose in a State appeal wherein the State contested the defendant‘s sentence as being illegally lenient where the trial court judge imposed a suspended sentence for a conviction for heroin possession, first offense, after applying 2001 La. Acts 403. State v. Sugasti, 01-770 (La.App.5 Cir. 11/27/01), 802 So.2d 943.3 At the time of the commission of the offense, suspension of sentence was not allowed for the crime of possession of heroin.
In Sugasti, at p. 6, 802 So.2d at 946, this Court found that the trial judge erred in sentencing the defendant under the amended version of
In the instant case, the defendant committed the crime of possession of heroin on September 5, 1998, which is prior to the effective date of the amendment to LSA-R.S. 40:966, which was June 15, 2001. Although the trial judge was permitted to consider the ameliorative changes in the law, he erred when he suspended the defendant‘s sentence in derogation of the sentencing provision applicable at the time of the offense. Therefore, the defendant‘s sentence is illegal and must be vacated.
This Court has also issued a writ disposition on the same issue addressed in this opinion involving the applicability of the amended version of the penalty provisions for fourth-felony offenders under the multiple offender statute.
Second, considering whether the new law or the law in effect at the time of the offense should apply to the habitual offender proceedings, we again find no error in the trial court determination that the law (i.e., Multiple Offender Statute) prior to its amendment should apply.
In the present case, in support of his contention that the judge imposed the correct sentence, defendant alleges that the penalty provisions under the old and amended versions of the multiple offender statute are in conflict and therefore as a matter of legislative construction, the later enactment should control. In this regard, he cites State v. Piazza, 596 So.2d 817 (La.1992). The defendant‘s argument is misplaced. In Piazza, the State legislature enacted two statutes containing conflicting penalty provisions for the same crime, each without recognition of the existence of the other statute. Clearly that is not the case here. In the enactment of 2001 La. Act. 403, the legislature was cognizant that it was amending a number of criminal statutes, with the intent to prospectively lessen prison overcrowding. A reading of the enactment makes this apparent, that the legislature did not intend that the old and new versions of the statute should apply at the same time. For the reasons discussed in Flagg, Sugasti, and Jordan, the pre-amendment version of the multiple offender statute was applicable to crimes committed prior to June 15, 2001 and
The State next argues that the sentence imposed was illegal even if the trial judge utilized the old version of
The Eighth Amendment of the United States Constitution and
The court in Dorthey, supra, 623 So.2d at 1280, specifically held that when a trial court determines the minimum sentence mandated by the Habitual Offender Law makes no “measurable contribution to acceptable goals of punishment” or when the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. The court in Johnson, supra, at 676, cautioned that a trial judge‘s determination that a mandatory minimum sentence is excessive requires more than merely uttering of these stated phrases.
The sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676. A court may
When seeking to rebut the presumption of constitutionality, the defendant must show by clear and convincing evidence that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature‘s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” State v. Johnson, 709 So.2d at 676. Downward departures should only occur in rare situations. Id. at 677.
When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which was enacted to deter and punish recidivism. State v. Johnson, 709 So.2d at 677. If a downward departure is warranted, the sentencing court must impose the longest sentence that is not constitutionally excessive, with specific reasons as to why this sentence is not constitutionally excessive. Id. at 677.
In the present case, the defendant presented no evidence to rebut the presumption that the mandatory sentence of life, without benefits of parole, probation or suspension of sentence, was unconstitutional. Under these circumstances, a downward departure is unwarranted. Accordingly, if defendant‘s sentence in this case resulted from the trial judge making a downward departure in the application of the applicable penalty statute, we find such to be error.
For the reasons assigned herein, the defendant‘s sentence is illegally lenient and must be vacated. Although this Court has the authority to correct an illegal sentence, the facts indicate the defendant‘s admission to the multiple bill resulted from a negotiated agreement with the trial court judge that defendant would receive a sentence of 16 months, if he admitted to the allegations of the multiple bill.
As in our decision in Flagg, we note that the trial judge may consider the legislative change in the penalty as evidence of its intent. State v. Clark, 391 So.2d 1174, 1176. And, although the life sentence is mandatory in this case, the trial judge is permitted to deviate from the mandatory sentence imposed by
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to
At the initial sentencing of the defendant, the trial court advised him that he had “two years from today‘s date to seek post-conviction relief.” At the time of the multiple bill sentencing the court did not advise defendant of the prescriptive period for filing for post-conviction relief.
DECREE
Accordingly, we vacate the defendant‘s enhanced sentence and remand the case to the trial court for further proceedings consistent with this opinion.
SENTENCE VACATED; CASE REMANDED.
APPENDIX A
STATE OF LOUISIANA
VERSUS
SHONE C. JORDAN
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
NO. 01-KH-1034
WRIT DENIED.
Defendant, Shone Jordan, was charged on January 28, 1998 by bill of information with the crime of theft of goods valued at over $500, in violation of
First, whether or not the habitual offender bill of information should be quashed, the lead case on this point is State ex rel. Porter v. Butler, 573 So.2d 1106 (La. 1991). InPorter, the Supreme Court held that “policy considerations support the continued viability of the rule precluding habitual offender enhancement of more than one conviction obtained the same date arising out of a single criminal act or episode.” Defendant, in argument, seeks to expand the test set out in Porter to a “continuous” criminal episode rather than, as written, to a “single” criminal episode. We see no reason for such an expansion. This Defendant shoplifted at Dillards Lakeside. He then had an altercation in an automobile with a police officer in the parking lot in which he attempted to kill the officer. He then fled in the vehicle several miles down Causeway Boulevard to Airline Highway. When the Defendant got to Airline Highway, he lost control of his vehicle, struck an oncoming vehicle and killed its three occupants. The manslaughters and the shoplifting are simply not “a single criminal act or episode.” Further, the convictions were not obtained on the same day. Thus, we find that Porter does not preclude the filing of the habitual offender bill of information against this Defendant based on the shoplifting
Second, considering whether the new law or the law in effect at the time of the offense should apply to the habitual offender proceedings, we again find no error in the trial court determination that the law prior to its amendment should apply. While this issue presents a closer question, and some states have held that the new law would apply under similar circumstances, that has not heretofore been the holding in this state. The leading case on this point is State v. Clark, 391 So.2d 1174 (La. 1980), which held that the law in effect at the time the offense is committed is applicable. That holding has not been overturned. See also, State v. Jones, 99-2207 (La. 1/30/01 [1/29/01]), 778 So.2d 1131; State v Bosworth, 415 So.2d 912 (La. 1981). We find it controlling in this case.
Additionally, we note that the Court in Clark went on to find that the sentencing court should consider the current legislative intent in determining whether the sentence under the statute as it existed prior to its amendment is excessive, and to sentence the Defendant lawfully.
Accordingly, we find no error in the trial court rulings. We remand the case for further proceedings as provided by law.
GRETNA, LOUISIANA, THIS 12th OCTOBER, 2001.
/s/ James L. Cannella JUDGE JAMES L. CANNELLA
/s/ Marion F. Edwards JUDGE MARION F. EDWARDS
/s/ Susan M. Chehardy JUDGE SUSAN M. CHEHARDY