State v. Dorthey, No. 92-KA-3120

• Court: Supreme Court of Louisiana
• Writing for the Court: CALOGERO; MARCUS; MARCUS
• Citation: 623 So.2d 1276
• Parties: STATE of Louisiana v. Lemuel DORTHEY.
• Decision Date: 10 September 1993
• Docket Number: No. 92-KA-3120

Page 1276

623 So.2d 1276 STATE of Louisiana
v.
Lemuel DORTHEY. No. 92-KA-3120. Supreme Court of Louisiana. Sept. 10, 1993.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Charmagne A. Padua, Joseph Hassigner, Joseph Lucore, Asst. Dist. Attys., for applicant.

Robert Glass, New Orleans, for respondent.

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CALOGERO, Chief Justice. ^*

The State of Louisiana appeals from a judgment of the Orleans Parish Criminal District Court holding that the Habitual Offender Statute, L.S.A.-R.S. 15:529.1, is unconstitutional because it violates the separation of powers clause of the 1974 Louisiana Constitution. For the following reasons we determine that the statute is not unconstitutional. Nonetheless, because constitutionally excessive sentences are subject to being stricken, we remand this case to the district court for a determination as to whether the minimum sentence mandated by R.S. 15:529.1 is constitutionally excessive as applied to the defendant in this case.

On August 27, 1992, Lemuel Dorthey, a twenty-seven-year-old crack cocaine addict, was charged by a bill of information by the District Attorney's Office of Orleans Parish with violating R.S. 40:967, possession of crack cocaine. On September 23, 1992, after a trial on the merits, a jury found defendant guilty of that crime. On October 7, 1992, the defendant was sentenced to serve five years at hard labor with credit for time served pursuant to L.S.A.-R.S. 40:967(C)(2). At the same time, the district attorney filed a bill of information invoking the Habitual Offender Law, to increase defendant's five year sentence, asserting that he had had three prior felony convictions for possession of cocaine. ¹ Based upon this bill of information, the defendant, as a fourth offender, faces a minimum sentence of 20 years and a maximum sentence of life at hard labor. ² In addition, he would be ineligible for "good time" diminution of sentence ³ and ineligible for parole before serving at least 20 years. ⁴

The defendant, at the same hearing, filed a motion to quash the multiple offender bill, challenging the constitutionality of R.S. 15:529.1. On October 15, 1992, before the hearing on the multiple bill and prior to resentencing, the criminal district court judge quashed the bill of information, finding that R.S. 15:529.1, as applied in Orleans Parish, violated the Separation of Powers Clause, article 2, section 2 of the 1974 Louisiana Constitution. ⁵ He may well have been influenced in part by the fact that the minimum sentence required by R.S. 15:529.1 for a fourth offender, even though in this case a crack cocaine addict, was twenty years. ⁶ The State appealed the district court's ruling.

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The separation of powers among the three branches of government is provided for in the 1974 Louisiana Constitution. "The powers of government of the state are divided into three separate branches: legislative, executive, and judicial." L.S.A.-Const. art. 2, Sec. 1. The Separation of Powers Clause, states "[e]xcept as otherwise provided in this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others." L.S.A.-Const. art. 2, Sec. 2. Consequently, the Constitution grants power to the judicial branch with which the legislative and executive branches shall not interfere. State v. LeCompte, 406 So.2d 1300, 1311 (La.1981). The question that confronts us is whether the Habitual Offender statute and its penalties dictated by the Legislature pursuant to R.S. 15:529.1 violates the constitutionally-required separation of powers between the judicial and legislative branches.

It is a well established principle that the determination and definition of acts which are punishable as crimes is purely a legislative function. State v. Taylor, 479 So.2d 339 (La.1985); LSA-R.S. 14.7. It is the Legislature's prerogative to determine the length of the sentence imposed for crimes classified as felonies. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Hudson, 442 So.2d 735 (La.App. 1st Cir.1983). Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Stetson, 317 So.2d 172 (La.1975).

The Habitual Offender Law, L.S.A.-R.S. 15:529.1, was enacted by the Legislature by Acts 1966, No. 311, Section 3. Generally, the statute provides that if the State produces evidence that a defendant has been convicted of one or more previous felonies within a certain time frame, the court is required to find him a habitual offender (second, third, or fourth) and impose sentences within the increased minimums and maximums prescribed in the statute. ⁷

Like Louisiana, most states have statutes providing for increased punishment for repeat offenders, and several such statutes have been enacted by the United States Congress. Parke v. Raley, --- U.S. ----, ----, 113 S.Ct. 517, 522, 121 L.Ed.2d 391 (1992); State v. George, 218 La. 18, 26, 48 So.2d 265 (1950). Such provisions are a deterrent and a warning to first offenders. They protect society by attempting to remove recidivists from its midst. State v. George, supra.

Under Louisiana's Habitual Offender law a bill of information alleging that a defendant is a recidivist does not charge a new crime but merely advises the trial court of circumstances, and seeks enhanced punishment following a defendant's most recent

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conviction. "The enhancement of the penalty for habitual offenders convicted of a new felony only addresses itself to the sentencing powers of the trial judge after conviction and has no functional relationship to the innocence or guilt of the instant crime." State v. Walker, 416 So.2d 534, 536 (La.1982); State v. Hayes, 412 So.2d 1323 (La.1982); State v. Stott, 395 So.2d 714 (La.1981). Thus, a ruling at a multiple offender hearing is not "a definitive judgment" but merely "a 'finding' ancillary to the imposition of sentence." State v. Stott, supra.

Furthermore, because the hearing is not a trial, legal principles such as res judicata, double jeopardy, the right to a jury trial and the like do not apply. State v. Stott, supra; State v. Langendorfer, 389 So.2d 1271, 1276-1277 (La.1980). Louisiana's Habitual Offender statute is simply an enhancement of punishment provision. It does not punish status and does not on its face impose cruel and unusual punishment. State v. Lee, 364 So.2d 1024, 1032 (La.1978); State v. Badon, 338 So.2d 665 (La.1976).

R.S. 15:529.1 has passed constitutional muster since its enactment despite a variety of attacks, including an attack on the provision which allows the district attorney the discretion regarding whom to bill as a habitual offender. In State v. Madison, 345 So.2d 485 (La.1977); State v. Badon, 338 So.2d 665 (La.1976) and State v. Overton, 337 So.2d 1201 (La.1976), this Court found that the statute's provisions granting the district attorney discretion in deciding whom to bill as a habitual offender was not invalid simply because its provisions might be selectively enforced. In these cases we determined that absent a showing of discriminatory application based on race, religion, or other arbitrary standard or classification, an allegation of selective enforcement would not prevail.

Furthermore, in State v. Badon, this Court held that the statute did not deny defendant equal protection or due process. State v. Badon, 338 So.2d at 670. More importantly, in State v. Lawson, 410 So.2d 1101, 1104 (La.1982), we recognized that the statute "is a valid limitation on the sentencing considerations listed in C.Cr.P. art. 894.1." ⁸

In the case before us, we are presented for the first time the contention that R.S. 15:529.1 is unconstitutional because it violates Louisiana's constitutional separation of powers. In addressing the contention we note that the district attorney indeed...