State v. Pebworth

• Decision Date: 17 January 1972
• Docket Number: No. 51691,51691
• Citation: 257 So.2d 136,260 La. 647
• Parties: STATE of Louisiana v. Preston PEBWORTH.
• Court: Louisiana Supreme Court

Page 136

257 So.2d 136

260 La. 647

STATE of Louisiana v. Preston PEBWORTH.

No. 51691.

Supreme Court of Louisiana.

Jan. 17, 1972.

Dissenting Opinion Jan. 27, 1972.

Robert A. Connell, Jackson, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Gen., Richard H. Kilbourne, Dist. Atty., Fred C. Jackson, Asst. Dist. Atty., for plaintiff-appellee.

HAMLIN, Justice:

Defendant appeals from his conviction of simple escape, LSA-R.S. 14:110.2, ¹ and his sentence to serve ten years in the Louisiana State Penitentiary, said sentence to run consecutively with any sentence being served. Two Bills of Exceptions are the basis of this appeal.

By Bill of Information, the State charged that 'Preston Pebworth and Robert James Miller having been sentenced to and while incarcerated at the Louisiana State Penitentiary did intentionally depart, under circumstances wherein human life was not endangered from the lawful custody of Murray Mayeaux, an official of the Louisiana State Penitentiary, and from a place where they were lawfully detained by the said official.' A motion for severance was granted to Miller. Pebworth was thereafter tried by jury and found guilty.

Prior to sentence, Pebworth filed a Motion in Arrest of Judgment, which averred:

'1.

'The offense charged is not punishable under a valid statute because the statute defining simple escape from Louisiana State Penitentiary violates the defendant's right to equal protection of the laws under Article 1, Section 2 of the Louisiana Constitution and the Fourteenth Amendment to the Constitution of the United States, in that a more severe punishment is provided for escape from Louisiana State Penitentiary than for escape from other confinement or imprisonment, and a more severe punishment is provided for escape after conviction and sentence to Louisiana State Penitentiary than for escape prior to being sentenced to Louisiana State Penitentiary or without being so sentenced.

'2.

'The offense charged is not punishable under a valid statute because the statute defining simple escape from Louisiana State Penitentiary is an unreasonable legislative enactment violating the defendant's right of due process under Article 1, Section 2 of the Louisiana Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States, and to equal protection of the laws under Article 1, Section 2 of the Louisiana Constitution and the Fourteenth Amendment to the Constitution of the United States, in that a more severe punishment is provided for simple escape from Louisiana State Penitentiary than for similar crimes and crimes of equally serious import as set forth in the Louisiana Criminal Code (LSA-R.S. Title 14.)

'3.

'The offense charged is not punishable under a valid statute because the penalty provisions of the statute defining simple escape from Louisiana State Penitentiary set forth a penalty for the offense charged which is so excessive as to amount to cruel and unusual punishment in violation of Article 1, Section 12 of the Louisiana Constitution and the Eighth and Fourteenth Amendments to the Constitution of the United States.

'WHEREFORE, mover prays that he be discharged, his conviction set aside and the prosecution dismissed.'

The trial court denied the above motion and sentenced the defendant. Two Bills of Exceptions were reserved--one to the overruling of the Motion in Arrest of Judgment and one to the sentence imposed. Both Bills of Exceptions are formalized into one Bill which avers that the trial court's ruling and sentencing were erroneous because the statute under which the defendant was charged and his sentence imposed, LSA-R.S. 14:110.2, is invalid and unconstitutional, being an unreasonable legislative enactment which violates many provisions of the Louisiana and United States Constitutions.

Herein, counsel for the defendant filed a Specification of Errors, which avers:

'1. The trial court erred, in denying defendant's motion in arrest of judgment asserting that the offense of simple escape from Louisiana State Penitentiary, with which the defendant was charged is not punishable under any valid statute, in that (a) the statute defining simple escape violated defendant's right to equal protection of the laws by providing a more severe punishment for escape from the penitentiary than for other escapes, and a more severe punishment for escape after being sentenced to the penitentiary than before; (b) the simple escape statute violated defendant's right to due process and equal protection of the laws by providing a more severe punishment than for other equally serious crimes; and (c) the penalty for simple escape is so excessive as to amount to cruel and unusual punishment.

'2. The trial court erred in sentencing the defendant following his conviction by a jury, to a term of ten years at hard labor under the provisions of LSA-R.S. 14:110.2, which violated defendant's right to equal protection of the laws, which was imposed under an unreasonable legislative enactment violating defendant's right to due process of law and equal protection of the laws, and which was so excessive as to amount to cruel and unusual punishment.'

Counsel for the defendant contends that LSA-R.S. 14:110.2 violates defendant's right to equal protection of the laws by providing a more severe penalty for penitentiary escape than for other forms of escape.

Louisiana law provides three separate penalties for the crime of simple escape:

1. Under LSA-R.S. 14:110.2, supra, a person who is imprisoned in the Louisiana State Penitentiary and commits the crime of simple escape is subject to a penalty of not less than five years and not more than ten years, said sentence not to run consecutively with any other sentence.

2. Under LSA-R.S. 14:110, ² a person who is imprisoned in jail and sentenced to the Louisiana State Penitentiary and commits the crime of simple escape is subject to a penalty of imprisonment at hard labor for not less than two years and not more than five years, said sentence not to run concurrently with any other sentence.

3. Under LSA-R.S. 14:110 a person who is not sentenced to the Louisiana State Penitentiary and commits the crime of simple escape is subject to a fine of not more than five hundred dollars, or imprisonment for not more than six months, or both, said sentence not to run concurrently with any other sentence.

In the recent case of State v. Coney, 258 La. 369, 246 So.2d 793, the defendant contended in his Motion to Quash that the penalty provision of LSA-R.S. 14:110.2, under which he was prosecuted, was repealed by Act No. 290 of 1970, LSA-R.S. 14:110. This Court affirmed defendant's conviction and sentence, holding that the penalty language of LSA-R.S. 14:110 is designed to make the reduced penalty of the 1970 statute applicable to all Section 110 prosecutions regardless of when the offense occurred, and that it has no effect on the penalty provision of LSA-R.S. 14:110.2. Herein, counsel for Pebworth urges that the Coney interpretation raises the constitutional question of equal protection of the laws. He states that the penalty provisions of the two escape statutes create a three-tiered distinction among the classifications of simple escape, and that there is no rational basis for such a distinction which places a group of persons similarly situated--prisoners--into different classes on a discriminatory basis. He argues:

'In reviewing the simple escape statutes the most evident discriminatory factor, however, is in the distinction between a jail prisoner who has been sentenced to the penitentiary, but not yet, imprisoned there, and the prisoner who is actually imprisoned at the penitentiary. In the former case the penalty is two to five years; in the latter, five to ten years. This would mean for instance that, on a certain date, a prisoner could be sentenced to Louisiana State Penitentiary and remanded to jail awaiting transport to Angola. A conviction for a simple escape during that interim would merit a maximum sentence of five years. If he were carried to Angola, an escape from there would mean a ten year maximum penalty. Yet if, one day after being received at Angola, the prisoner were sent back to the same jail from which he had been received after sentencing (for instance, for a habeas corpus proceeding), an escape from that same jail and subsequent conviction of simple escape, would again subject him to the heavier penalty.'

The fixing of penalties for criminal acts is a matter of legislative discretion with which the courts will not interfere save in extreme cases of palpable abuse. State v. Vittoria, 224 La. 258, 69 So.2d 36. The discretion vested in the Legislature to fix penalties for crime and the discretion vested in trial courts to impose sentence should not be interfered with, save where there is a clear and manifest necessity for interfering. State v. Glennon, 165 La. 380, 115 So. 627. See, State ex rel. Coco v. Farmerville Light & Power Co., 144 La. 241, 80 So. 268.

'The discretion of the legislature will not be interfered with by the court except in extreme cases, or unless the penalty prescribed is clearly and manifestly cruel and unusual, and punishment is not to be regarded as either cruel or unusual because never inflicted before on a certain class of criminals, or unless it is so greatly disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice.' 24B C.J.S. Criminal Law § 1978, p. 552. 'The action of Congress in fixing punishment for crime is, of course, subject to the constitutional requirement that the penalty may not be cruel and unusual; i.e., so manifestly disproportionate to the seriousness of the offense or of such a nature that it shocks the conscience and sense of justice. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). The courts, however, have been reluctant to interfere with legislative judgment and...