Landry v. Hoepfner, No. 85-3784

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK; GARWOOD; GARZA, Circuit Judge, with whom JERRE S. WILLIAMS; Jerry E. Smith
Citation840 F.2d 1201
PartiesPhilip LANDRY, Petitioner-Appellant, v. Judge J. Robert HOEPFNER and William Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees.
Decision Date17 March 1988
Docket NumberNo. 85-3784

Page 1201

840 F.2d 1201
56 USLW 2575
Philip LANDRY, Petitioner-Appellant,
v.
Judge J. Robert HOEPFNER and William Guste, Jr., Attorney
General, State of Louisiana, Respondents-Appellees.
No. 85-3784.
United States Court of Appeals,
Fifth Circuit.
March 17, 1988.

Page 1202

Mark McTernan, McTernan, Parr & Rummage, New Orleans, La., for petitioner-appellant.

Wayne J. Blanchard, Shreveport, La., for amicus curiae--La. Assoc. Crim. Def. Lawyers.

Okla Jones, City Atty., New Orleans, La., for amicus curiae--City of New Orleans.

Louis M. Fischer, Criminal Div., Dept. of Justice, Washington, D.C., for amicus curiae--U.S.

Dorothy A. Pendergast, Research and Appeals, Gretna, La., for respondents-appellees.

Rene I. Salomon, Asst. Atty. Gen., Baton Rouge, La., for amicus curiae--DA's.

E. Pete Adams, Executive Director, La. Dist. Attys. Assoc., Inc., Baton Rouge, La., for amicus curiae--Exec. Dir. La. DA's Assoc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GEE, RUBIN, GARZA, REAVLEY, POLITZ, KING, * JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, and JONES, Circuit Judges. **

GARWOOD, Circuit Judge:

The question presented in this habeas corpus case is whether in a Louisiana prosecution for a first offense of operating a vehicle while intoxicated (DWI), the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, entitles the accused to a jury trial notwithstanding that the five hundred dollars fine and six months' imprisonment maximum penalty prescribed for the infraction does not exceed that appropriate for "petty" offenses under Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Disagreeing with the panel's contrary determination, Landry v. Hoepfner, 818 F.2d 1169 (5th Cir.1987), this Court en banc now holds that the United States Constitution does not require the states to provide the right of trial by jury for such an offense. We accordingly affirm the district court's dismissal of appellant's petition under 28 U.S.C. Sec. 2254 attacking his Louisiana DWI conviction.

I.

Petitioner-appellant Philip Landry (Landry), who waived his right to counsel and represented himself, was charged with, and following a January 1984 bench trial was convicted by the First Parish Court of Jefferson

Page 1203

Parish, Louisiana of, first offense DWI, contrary to LSA-R.S. Sec. 14:98. 1 Pursuant to section 14:98 B, which authorizes a maximum sentence of a five hundred dollars fine and six months' imprisonment for this offence, 2 Landry was sentenced to a fine of three hundred dollars and a term of six months in the Jefferson Parish Correctional Center. 3 The confinement sentence was suspended for two years, during which period Landry was placed under probation requiring him to perform four days of community service work, attend four days of driver improvement courses, and undergo evaluation at the Jefferson Parish Substance Abuse Clinic. 4

Page 1204

Under Louisiana law, there is no entitlement to trial by jury in respect to misdemeanors for which the maximum sentence does not exceed a five hundred dollars fine and imprisonment for not more than six months. LSA-C. Cr. P. art. 779. 5 A first offense violation of section 14:98--DWI--is a misdemeanor. 6 Accordingly, since the penalty provided for first offense DWI in section 14:98 B does not exceed a five hundred dollars fine and six months' imprisonment, it is recognized in Louisiana law that there is no entitlement to trial by jury for such offense. See e.g., State v. Thigpen, 275 So.2d 760 (La.1973); State v. Hayden, 437 So.2d 294 (La.App. 1st Cir.1983); State v. Henderson, 491 So.2d 647 (La.1986).

Following his conviction and sentence, Landry retained counsel and sought appellate review of his conviction, asserting that he was denied his right to trial by jury because he was not informed of it by the trial court and that the provisions of the Louisiana statutes and Constitution purportedly denying the right to a jury trial were invalid as contrary to the Sixth and Fourteenth Amendments of the United States Constitution. The Louisiana Court of Appeals affirmed his conviction and sentence. State v. Landry, 463 So.2d 761 (La.App. 5th Cir.1985). It held that "defendant was not entitled to a jury trial" under Louisiana law, id. at 764, and that Landry's complaints as to the invalidity under the United States Constitution of the Louisiana statutory and constitutional provisions in this respect were waived by his failure to raise them at trial. Id. at 763. 7 The Louisiana Supreme Court denied Landry's application for writ of certiorari and/or review without opinion. State v. Landry, 464 So.2d 1373 (La.1985).

Landry thereafter brought the instant habeas corpus proceedings under 28 U.S.C. Sec. 2254, challenging his DWI conviction. 8 The district court ruled that because the maximum penalty for this first offense

Page 1205

DWI was six months' confinement and a five hundred dollars fine, the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, did not entitle Landry to a jury trial. Accordingly, it dismissed Landry's petition. A panel of this Court reversed, holding that the Sixth Amendment entitled Landry to a jury trial because of the serious nature of the offense of DWI and the adverse collateral consequences of conviction thereof. Landry v. Hoepfner, supra. 9 We agree with the district court and disagree with the panel, and we therefore affirm the dismissal of Landry's habeas petition.

II.

Article III, Section 2, of the Constitution provides, in its third clause, that "[t]he trial of all crimes ... shall be by jury," and the Sixth Amendment requires "[t]hat in all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury...." It was recognized, however, that these provisions, though they applied to misdemeanors as well as felonies, did not extend the right of trial by jury to "petty offenses." Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 1306-07, 32 L.Ed. 223 (1888); Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). 10 Long after those decisions, the Supreme Court, rejecting contrary dicta in several earlier opinions, for the first time held that the Sixth Amendment was made applicable to the states by the Fourteenth Amendment, and that the states were hence likewise obliged to afford the right of trial by jury in criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Nevertheless, in Duncan, the Court acknowledged "that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States." Id. 88 S.Ct. at 1453 (footnote omitted). While recognizing that for this purpose it would inevitably become "necessary to draw a line in the spectrum of crime, separating petty from serious infractions," id. at 1453, the Duncan Court was not required to "settle in this case the exact location of the line" for it determined that the maximum authorized sentence of two years' imprisonment clearly placed the offense there involved in the "serious" category. Id. at 1454. Subsequently, in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Court refused to draw the line on the basis of whether the offense was felony or misdemeanor, but rather fixed it on the basis of whether the maximum permissible confinement exceeded six months, referring to the congressional definition of "petty offenses." Id. 90 S.Ct. at 1888-90. Nevertheless, Baldwin does not expressly hold that all offenses for which the maximum authorized confinement does not exceed six months are necessarily to be considered "petty" for this purpose. Accordingly, although under the criteria applied in Baldwin the present offense is "petty," the question whether the Sixth and Fourteenth Amendments nevertheless mandate that Louisiana afford for this infraction a right of trial by jury necessitates a closer examination of the "petty offense" doctrine and its development both before and after Duncan and Baldwin.

Before undertaking such an analysis, it is well to keep in mind three somewhat obvious general observations respecting the "petty offense" doctrine which is the core of our concern in this case. To begin with, the doctrine is one of federal

Page 1206

constitutional law. It does not prevent the states--or the federal government--from granting a jury trial right in petty offenses; it speaks only to when the United States Constitution mandates such a right. As noted in more detail below, in many states the petty offense doctrine is simply not recognized, so that for all criminal prosecutions, whether or not the offense charged is "petty," there is a right to jury trial, by virtue of state constitutional or statutory law. 11 In the second place, under our "petty offense" doctrine, the question is not whether the infraction is a "crime" or the penalty for it civil or criminal, nor whether the penalty may include any substantial confinement, as is determinative of jury trial right in a number of states. Rather, it is clear that an infraction may be a "petty offense," for which the United States Constitution does not require that there be a right of trial by jury, notwithstanding that it is clearly a "crime" which may be punished by as much as six months' imprisonment. See, e.g., Duncan, 88 S.Ct. at 1453 ("Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses."). Finally, the fact that an offense is "petty" for these purposes does not mean that in a prosecution for it the accused is not...

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34 practice notes
  • Bado v. United States, No. 12–CM–1509
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • June 21, 2018
    ...correction of their misperceptions." Blanton , 489 U.S. at 541–42, 109 S.Ct. 1289 (alteration in original) (quoting Landry v. Hoepfner , 840 F.2d 1201, 1209 (5th Cir. 1988) ).31 Judge Glickman's dissent relies on two unpublished federal district court opinions, from California and Kentucky,......
  • U.S. v. Soderna, Nos. 95-1309
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 30, 1996
    ..." Blanton v. City of North Las Vegas, 489 U.S. 538, 541-42, 109 S.Ct. 1289, 1292, 103 L.Ed.2d 550 (1989) (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th Cir.1988) (en Uncovering the enacting legislature's judgment of a crime's seriousness entails a two-step interpretive process. First......
  • State v. Hamm
    • United States
    • United States State Supreme Court (New Jersey)
    • August 6, 1990
    ...can as easily result from a couple of speeding tickets, or from a fender-bender or two never criminally prosecuted." Landry v. Hoepfner, 840 F.2d 1201, 1216 (5th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1540, 103 L.Ed.2d 844 (1989). The DWI surcharge was totally unrelated......
  • People v. Suazo, No. 117
    • United States
    • New York Court of Appeals
    • November 27, 2018
    ...n. 3 [4th Cir. 1986] ; see also Baldwin, 399 U.S. at 69, 90 S.Ct. 1886 ; Landry v. Hoepfner, 818 F.2d 1169, 1175 [5th Cir. 1987], on reh 840 F.2d 1201 [5th Cir. 1988], 118 N.E.3d 179cert denied 489 U.S. 1083, 109 S.Ct. 1540, 103 L.Ed.2d 844 [1989] ; United States v. Craner, 652 F.2d 23, 26 ......
  • Request a trial to view additional results
34 cases
  • Bado v. United States, No. 12–CM–1509
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • June 21, 2018
    ...correction of their misperceptions." Blanton , 489 U.S. at 541–42, 109 S.Ct. 1289 (alteration in original) (quoting Landry v. Hoepfner , 840 F.2d 1201, 1209 (5th Cir. 1988) ).31 Judge Glickman's dissent relies on two unpublished federal district court opinions, from California and Kentucky,......
  • U.S. v. Soderna, Nos. 95-1309
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 30, 1996
    ..." Blanton v. City of North Las Vegas, 489 U.S. 538, 541-42, 109 S.Ct. 1289, 1292, 103 L.Ed.2d 550 (1989) (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th Cir.1988) (en Uncovering the enacting legislature's judgment of a crime's seriousness entails a two-step interpretive process. First......
  • State v. Hamm
    • United States
    • United States State Supreme Court (New Jersey)
    • August 6, 1990
    ...can as easily result from a couple of speeding tickets, or from a fender-bender or two never criminally prosecuted." Landry v. Hoepfner, 840 F.2d 1201, 1216 (5th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1540, 103 L.Ed.2d 844 (1989). The DWI surcharge was totally unrelated......
  • People v. Suazo, No. 117
    • United States
    • New York Court of Appeals
    • November 27, 2018
    ...n. 3 [4th Cir. 1986] ; see also Baldwin, 399 U.S. at 69, 90 S.Ct. 1886 ; Landry v. Hoepfner, 818 F.2d 1169, 1175 [5th Cir. 1987], on reh 840 F.2d 1201 [5th Cir. 1988], 118 N.E.3d 179cert denied 489 U.S. 1083, 109 S.Ct. 1540, 103 L.Ed.2d 844 [1989] ; United States v. Craner, 652 F.2d 23, 26 ......
  • Request a trial to view additional results

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