State v. Dick
| Decision Date | 26 January 2007 |
| Docket Number | No. 2006-KK-2226.,No. 2006-KP-2223.,2006-KP-2223.,2006-KK-2226. |
| Citation | 951 So.2d 124 |
| Parties | STATE of Louisiana v. Wesley DICK. State of Louisiana v. Melvin Smith. |
| Court | Louisiana Supreme Court |
Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Graham L. Bosworth, Assistant District Attorney, for Applicant in No. 2006-KK-2226.
Joseph P. Raspanti, Metairie, Dwight M. Doskey, for Respondent in No. 2006-KK-22226.
Joseph P. Raspanti, Office of Public Defender, Kevin Linder, Dwight M. Doskey, for Applicant in No. 2006-KP-2223.
Charles C. Fonti, Jr., Attorney General, Walter P. Reed, District Attorney, David A. Weilbaecher, Jr., Assistant Attorney, Ieyoub & Landry, Kathryn Landry, Baton Rouge, for Respondent in No. 2006-KP-2223.
These consolidated criminal cases concern sentences imposed under prior law and whether La.Rev.Stat. 15:308, pertaining to ameliorating sentences as enacted by 2006 La. Acts No. 45, provides authority for the sentencing courts to modify the defendants' sentences. At the time of the defendants' offenses, convictions and sentencing, La.Rev.Stat. 40:966 B(1) provided a penalty of mandatory life imprisonment. In 2001, the legislature amended La.Rev. Stat. 40:966 B (1) to reduce the penalty for distribution or possession with intent to distribute heroin. For the following reasons we find that although in La.Rev.Stat. 15:308, the legislature mandates retroactive application of the more lenient penalty provisions to those persons who committed crimes, who were convicted or who were sentenced according to La.Rev.Stat. 40:966 B, the legislature did not provide that these offenders may seek resentencing in the courts, the judicial branch of government, because they are constitutionally required to seek relief in the executive branch. Resentencing these offenders in order to retroactively apply the more lenient penalty provisions to offenders whose convictions and sentences are final is, in effect, a commutation of a valid and final sentence, which falls within the executive branch of government, not the judicial branch. Therefore, La.Rev.Stat. 15:308 C correctly provides the offenders' exclusive remedy is before the Louisiana Risk Review Panel, which falls within the executive branch of government.
On October 12, 2000, Wesley Dick was found guilty by a jury for the offense of distribution of heroin in May 1999, a violation of La.Rev.Stat. 40:966 A(1) (2000). In January 2001, the trial court sentenced him to life imprisonment at hard labor without benefit of probation or suspension of sentence. See La.Rev.Stat. 40:966 B(1) ()
On July 6, 2006, Dick filed a combined Motion to Correct Illegal Sentence/Motion Requesting Retroactive Application of Recent Enactment of LSA-R.S. 15:308. The sentencing court granted the motion, vacated the sentence and sentenced the defendant to serve a period of ten years at hard labor with the Department of Public Safety and Corrections, with credit for time served. The state then filed a Motion to Correct Illegal Sentence, which the trial court denied. The state sought a writ from the court of appeal.
The court of appeal granted the state's writ, reversed the sentencing court's rulings, vacated the ten year sentence and reinstated defendant's original sentence of life imprisonment at hard labor without benefit of probation or suspension of sentence. State v. Dick, 06-1381 (La.App. 1 Cir. 7/20/06), 943 So.2d 389. Defendant sought a writ of certiorari from this court.
Defendant Melvin Smith was convicted in June 1977, of possession with intent to distribute heroin in violation of La.Rev. Stat. 40:966 A(1) (1977). He was sentenced to life imprisonment at hard labor without benefit of probation or suspension of sentence. See La.Rev.Stat. 40:96 6B(1) (1977). On August 10, 2006, defendant filed a combined Motion to Correct Illegal Sentence/Motion Requesting Retroactive Application of Recently Enacted LSA-R.S. 15:308. The trial court granted the motion, set aside the previous sentence and sentenced the defendant to twenty-eight years in the custody of the Department of Public Safety and Corrections, with credit for all time served. The trial court further ordered the defendant to be released.
The state sought a writ from the court of appeal. The court of appeal denied the writ. State v. Smith, 06-1212 (La.App. 4 Cir. 9/8/06). The state then sought a writ from this court.
We granted both writs, State v. Dick, 06-2223 (La.9/29/06), 937 So.2d 848 and State v. Smith, 06-2226 (La.9/15/06), 936 So.2d 1251, consolidating them for purposes of argument and opinion, in order to resolve the split among the circuits on the proper application of recently enacted La. Rev.Stat. 15:308.
Both defendants were convicted of violation of La.Rev.Stat. 40:966 A(1) for their actions in possessing heroin with intent to distribute. At the time of their convictions and sentencing, La.Rev.Stat. 40:966 B(1) provided that upon conviction, the defendant shall be sentenced to life imprisonment at hard labor without benefit of probation or suspension of sentence.
In 2001 La. Acts No. 403, § 4, the legislature reduced the penalty for the distribution of heroin or the possession with intent to distribute from life imprisonment to a term of imprisonment at hard labor for not less than five years nor more than fifty years, at least five years of which must be served without benefit of probation or suspension of sentence. See La.Rev.Stat. 40:966 B(1)(2002).1 This act became effective on June 15, 2001. The act further provided, in Section 6, that its provisions shall have prospective effect only.
Soon after 2001 La. Acts No. 403 was enacted by the legislature and signed by the governor, this court had occasion to address the issue of whether the ameliorative changes applied solely to crimes committed after the effective date of the act, in State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518. In that case, defendant was charged with possession of heroin on September 5, 1998, in violation of La.Rev.Stat. 40:966 C. At the time of his offense, La. Rev.Stat. 40:966 C provided the sentence, a mandatory minimum of four years, would be without benefit of probation or suspension of sentence. Act No. 403 amended La.Rev.Stat. 40:966 C to delete the language prohibiting probation or suspension of sentence. Defendant pled guilty just days after the effective date of the act; the trial court ordered defendant's sentence suspended and placed him on active probation.
We affirmed the court of appeal's vacation of the penalty. We noted this court has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the accused must suffer, State v. Wright, 384 So.2d 399, 401 (La.1980), and that a defendant must be sentenced according to the sentencing provisions in effect at the time of the commission of the offense. State v. Narcisse, 426 So.2d 118, 130-131 (La.1983), cert. denied sub nom. Narcisse v. Louisiana, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); Sugasti, 01-3407 at p. 4, 820 So.2d at 520. We also observed that had it been the intention of the legislature to have the statute apply to all sentences imposed after the effective date of the statute, the legislature could have written the statute to so state. Sugasti, 01-3407 at p. 5, 820 So.2d at 521. We took notice that the legislature specifically provided that the provisions of Act 403 "shall only have prospective effect[;]" therefore, had the legislature intended for the more lenient sentencing provisions to take immediate effect, language signifying that intent could easily have been included in the act. Id.
In addition, 2001 La. Acts No. 403 enacted La.Rev.Stat. 15:574.22, which created the Louisiana Risk Review Panel. See La.Rev.Stat. 15:477.22 A. The Panel has the duty to evaluate the risk of danger to society that each person convicted of a non-violent crime may present if released from confinement in a prison facility. See La.Rev.Stat. 15:574.22 A. When a Panel has determined by a preponderance of the evidence that a person will not present a risk of danger to society if released from confinement, the Panel may make a non-binding recommendation that the person be considered for clemency by the Board of Pardons or considered for parole by the Board of Parole. See La.Rev.Stat. 15:574.22 I.
Initially, the legislature excluded those convicted of many narcotic offenses, including violations of La Rev. Stat. 40:966 A (1), from consideration by the Panel. See La.Rev.Stat. 15:574.22 G(2) (2002). Subsequently, in 2003 La. Acts No. 1231, the legislature amended the statute to create an exception for a person serving a life sentence for a drug offense who has served at least twenty years of the term in actual custody and who has not been convicted of a sex offense where the victim was under age eighteen or sentenced as a habitual offender based on a crime of violence. See La.Rev.Stat. 15:574.22 G(2)(d) (2004). The legislature reduced the amount of time an inmate was required to serve before being eligible for review by the Panel from twenty to seven years, with the adoption of 2005 La. Acts No. 67. See La.Rev.Stat. 15:574.22 G(2)(d).
In 2006, the legislature enacted La.Rev. Stat. 15:308, which is at issue before us in these consolidated cases. 2006 La. Acts No. 45, effective May 16, 2006, added La. Rev.Stat. 15:308, which provides:
Ameliorative penalty provisions; retroactivity; amendment of sentence; time limitations
A. (1) The legislature hereby declares that the provisions of Act No. 403 of the 2001 Regular Session of the Legislature provided for more lenient penalty provisions for certain enumerated crimes and that these penalty provisions were to be applied prospectively.
(2) The legislature hereby further declares that Act No....
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