State v. Sepulvado

• Decision Date: 29 January 1979
• Docket Number: No. 62622,62622
• Citation: 367 So.2d 762
• Parties: STATE of Louisiana, Appellee, v. Frankie SEPULVADO, Appellant.
• Court: Louisiana Supreme Court

Page 762

367 So.2d 762

STATE of Louisiana, Appellee, v. Frankie SEPULVADO, Appellant.

No. 62622.

Supreme Court of Louisiana.

Jan. 29, 1979.

Mark H. Kramar, Leesville, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for appellee.

TATE, Justice. ^*

This appeal involves judicial review of a criminal sentence for excessiveness in accordance with Article 1, Section 20 of the Louisiana Constitution of 1974.

The defendant, Frankie Sepulvado, was convicted for a violation of La.R.S. 14:80 (1950), carnal knowledge of a juvenile. The trial court sentenced him to serve three years and six months at hard labor.

This court affirmed the conviction on appeal, but vacated the sentence on the ground that the trial court had failed to comply with the sentencing guidelines of La.C.Cr.P. art. 894.1. State v. Sepulvado, 359 So.2d 137 (La.1978). The case was remanded to the trial court for resentencing in accordance with the statute.

The trial judge held an evidentiary hearing. He again sentenced Frankie Sepulvado to serve three years and six months at hard labor. At the resentencing, the judge stated certain facts as the basis for his conclusion that the prison sentence was necessary, in an effort to comply with La.C.Cr.P. art. 894.1 (1977). The defendant now appeals the sentence, arguing primarily that the sentence was excessive under the circumstances, and thus violative of La.Const. Art. 1, Section 20.

I.

Frankie Sepulvado, an unmarried young man, 18 years of age at the time of the episode, and Jamie S., a 151/2-year-old unmarried girl, went riding in his car on the evening of April 1, 1977. In the early morning hours of the next day, according to her testimony, they had sexual intercourse.

Jamie and Frankie, who are not closely related, had known each other for about four years prior to that time. In the days before this incident, they had been planning to run away together. On the evening of April 2, they did go to Texas, staying for about two weeks before responding to messages from Jamie's parents entreating them to return to Sabine Parish, Louisiana, where they both lived. There was testimony that Jamie's mother had promised to permit the couple to marry if they returned.

On arriving in Zwolle, Frankie was arrested and charged with violating La.R.S. 14:80 (1950), carnal knowledge of a juvenile. The statute then provided in pertinent part:

"Carnal knowledge of a juvenile is committed when anyone over the age of seventeen has sexual intercourse, with her consent, with any unmarried female person of the age of twelve years or over, but under the age of seventeen years, where there is an age difference of greater than two years between the two persons. . . .

"Whoever commits the crime of carnal knowledge of a juvenile shall be imprisoned, with or without hard labor, for not more than five years." ¹

At the time of the offense, Frankie Sepulvado was 18 years and 23 days old. Jamie S. was 15 years and nine months old. Jamie testified that she was a virgin prior to the incident in question. Nothing in the record suggests that their sexual act was anything other than the voluntary act of two equally willing and infatuated teenagers.

Under these circumstances, we must consider whether a sentence of three years and six months imprisonment in the state penitentiary system, is an excessive sentence as imposed on the one party who is unquestionably the only one legally at fault under the statute.

II.

The Louisiana Constitution of 1921 merely prohibited "cruel and unusual punishment." Article I, Section 12. In a deliberate change of wording, the new Louisiana Constitution of 1974 broadened the constitutional provision (and the duty of our courts in review of sentences) by providing, Article I, Section 20: "No law shall subject any person . . . to cruel, Excessive, or unusual punishment." (Italics ours.)

The deliberate inclusion of a prohibition against "excessive" as well as "cruel and unusual" punishment adds an additional constitutional dimension to judicial imposition and review of sentences. By it, the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court. See La.Const. art. 5, Section 5(C).

In addition to deliberate change in the constitutional wording, the constitutional intent reflected by the additional constitutional prohibition against "excessive" punishments may also be deduced from the historical jurisprudential gloss given to the former constitutional prohibition against punishments merely "cruel and unusual", as well as from the legislative history within the constitutional convention of the adoption of Article 1, Section 20, which is entitled "Right to Humane Treatment."

III.

The Eighth Amendment to the federal constitution prohibits "cruel and unusual" punishments. It was long ago held that excessiveness ² was a factor to be considered in determining whether a punishment was within the constitutional prohibition of that clause. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). However, later cases gradually subsumed the excessiveness element within the other, more literal tests for determining whether the "cruel and unusual" standard was violated, giving rise to a general rule against appellate review for excessiveness per se.

See, e. g., Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Comment, Appellate Review of Sentences and the Need for a Reviewable Record, 1973 Duke L.J. 1357 (1973).

Nevertheless, the federal appellate courts gradually developed a number of devices, such as discerning the absence of support in the record for the sentence, or a failure to exercise discretion given the trial judge by statute, to effect review of outrageous sentences. Comment, cited above, at 1973 Duke L.J. 1360-1370.

Commentators have generally urged appellate review for excessive sentences as the better rule. See Id., esp. authorities cited at 1973 Duke L.J. 1357 n.5; Hopkins, Reviewing Sentence Discretion: A Swift Method of Appellate Action, 23 U.C.L.A. L.Rev. 491 (1976); Comment, Appellate Review of Sentences: A Survey, 17 St. Louis U.L.J. 221 (1972); Note, Appellate Review of Sentencing Procedure, 74 Yale L.J. 378 (1964). Either by statute or by judicial decision, such review became available in at least twenty-six states. See Comment, cited above at 17 St. Louis U.L.J. 232.

IV.

In Louisiana, under article I, Section 12 of our former constitution of 1921, which tracked the language of the Eighth Amendment, this court declined to review sentences for excessiveness. See, e. g., State v. Polk, 258 La. 738, 247 So.2d 853 (1971).

To determine that the adoption of the Louisiana Constitution of 1974 effected a change in the law on this point, it might not be necessary to go beyond the basic principle of constitutional construction that no word should be treated as mere surplusage. Nevertheless, additionally its legislative history supports the view that the new constitutional provision was intended to provide appellate review of sentences for excessiveness.

The convention floor debate transcripts reflect that Delegate Weiss had been assigned as the floor manager for the section on the Right to Humane Treatment. Documents of the La.Const'l Convention of 1973 Relative to the Administration of Criminal Justice 929-30 (La.Const'l Records Comm'n). Delegate Willis asked him if the clause would "not allow me to appeal and have the judge review a sentence on the grounds that the sentence is excessive and so the punishment is excessive?" Delegate Weiss answered "yes," but suggested that "an amendment is forthcoming in this regard." Records of the La.Const'l Convention of 1973: Convention Transcripts 1190 (44th day Proceedings, Sept. 8, 1973) (La.Const'l Records Comm'n); Documents, cited above, at 690. The clause was never amended, however; and the availability of individual sentence review stands as intended within the original wording.

Comprehensive law review commentaries by two of the leading figures of the constitutional convention, written shortly after the adoption of the 1974 constitution, also underscore this fundamental change in the law.

Professor Lee Hargrave of the Louisiana State University law school faculty served as the coordinator of legal research for the Constitutional Convention of 1973. He directed research for the committee on the Bill of Rights and Elections. In discussing this provision of the new constitution, Professor Hargrave states in his article, "The Declaration of Rights of the Louisiana Constitution of 1974", 35 La.L.Rev. 1, 63 (1974):

"The prohibition against cruel or unusual punishment is derived from the eighth amendment and Article I, § 12 of the 1921 constitution. The new section, however, adds that no law shall subject any person to 'excessive punishment,' broadening the prior prohibition against 'excessive fines'. This gives the courts, in the exercise of their judicial review power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel or unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court's control over the entire sentencing process."

One of the co-authors of the Constitutional Convention's Declaration of Rights, now Article I of the Louisiana Constitution of 1974, State Representative Louis "Woody" Jenkins, wrote in "The Declaration of Rights", 21 Loy.L.Rev. 9, 39 (1975):

"The prohibition against 'excessive . . . punishment' makes a great change in the law and requires the courts to do justice in each case, regardless of any legislative assertion. This standard allows the courts to avoid strained interpretations of what is cruel and unusual punishment, in order to reach the sometimes...