State v. WashingtonState v. Washington
On remand from the Supreme Court of Louisiana, relator‘s application for writ of certiorari and prohibition is granted to review the state‘s motion to reconsider defendant‘s sentence.
After a jury found Joseph Washington guilty of possession of phencyclidine (PCP) in Orleans Parish in violation of
The state contends that the defendant‘s seven year sentence at hard labor is illegal because it falls below the statutory minimum sentence of ten years at hard labor under the habitual offender law. The sentence for possession of PCP for a first offender is not less than five years nor more than twenty years under
In State v. Dorthey, 623 So.2d 1276 (La. 1993), the Louisiana Supreme Court found that the habitual offender statute does not violate Louisiana‘s separation of powers doctrine and is not unconstitutional. The Court held that it is the legislature‘s prerogative to determine and define crimes and provide the length of the sentence imposed for crimes classified as felonies; the courts are charged with applying these punishments unless they are found to be unconstitutional. However, the Court noted that review of sentencing under
In Dorthey, supra, the trial court noted that the minimum sentence for a fourth offender was twenty years at hard labor without eligibility for parole or good time, and stated that the case was a particularly grievous situation because the defendant was found guilty of simple possession of crack cocaine which had a maximum sentence of five years at hard labor for the most recent conviction. The Supreme Court did not determine whether Dorthey‘s sentence was excessive, but remanded to the trial court to consider whether the minimum sentence mandated for the habitual criminal defendant by virtue of
In the present case the Supreme Court remanded the matter to this court to determine if the defendant‘s sentence is unconstitutionally excessive. The trial court explained to the defendant Joseph Washington what rights he was waiving when he admitted to being a second offender. The trial court asked the defendant:
Do you understand that the minimum sentence by law that I must give you is imprisonment for not less than ten years, the maximum penalty you could receive is imprisonment for not more than forty years? Do you understand that?
The defendant replied; “yes, sir.”
The trial court noted that the defendant had an extensive arrest record but had one prior conviction of possession of PCP in Jefferson Parish besides a conviction of a misdemeanor for a battery on a police officer and resisting an officer.1 The trial court found that the mandatory minimum of ten years at hard labor without credit for good time was excessive for a multiple offender. In the trial court‘s opinion, “to impose a ten year sentence would be needless.”
In Dorthey, supra, the defendant was a fourth offender who had no parole eligibility under
Accordingly, the defendant‘s sentence is vacated, and the matter is remanded for resentencing.
REVERSED AND REMANDED.
PLOTKIN, Judge, dissenting.
I respectfully dissent.
The defendant, Joseph Washington, was charged by bill of information on July 16, 1993, with possession of phencyclidine, a violation of
The state argues that this sentence falls below the statutorily mandated minimum sentence under the Habitual Offender Law of ten years at hard labor. While the state acknowledges that State v. Dorthey, 623 So.2d 1276 (La.1993) authorizes the trial court to impose a sentence below the minimum sentence required under the multiple bill statute, it argues that this case is distinguishable from Dorthey and that the trial court erred in imposing the seven year sentence in this case.
The Supreme Court in Dorthey stated that if the trial court were to find that the minimum punishment mandated by the Habitual Offender Law makes no “measurable contribution to accepted goals of punishment” or that the sentence amounted 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 court has “the option, indeed the duty” to reduce the sentence to one that would not be constitutionally excessive. Id. at 1280-1281.
The State attempts to distinguish Dorthey arguing that the defendant in Dorthey faced a minimum of a twenty year sentence; whereas, the defendant in the present case faces only a ten year sentence, However, the language of Dorthey authorizes the trial judge to impose a sentence less than the statutory minimum sentence under the multiple bill if the trial court concludes that the minimum sentence would be constitutionally excessive, In the present case the trial court made such a finding: “I believe to impose a ten year sentence without eligibility for parole, and to serving five years, and with no good time is in my opinion is a needless infliction of punishment and suffering and would be essence (sic) cruel and unusual punishment under the 8th Amendment of the United States Constitution and the constitutional laws of this state, Therefore, I will not follow the mandatory minimum that is set forth in the 15:529.1.” (Sent. tr. 9). The trial court made this finding after reviewing the defendant‘s record and finding that his two convictions were for possession of phencyclidine.1 Therefore, given the wide latitude granted to trial courts by the decision in Dorthey, I would deny this writ application.