State v. Williams, 2000-K-1725.

• Citation: 800 So.2d 790
• Decision Date: 28 November 2001
• Docket Number: No. 2000-K-1725.,2000-K-1725.
• Parties: STATE of Louisiana v. Sidney WILLIAMS.
• Court: Louisiana Supreme Court

800 So.2d 790

STATE of Louisiana v. Sidney WILLIAMS.

No. 2000-K-1725.

Supreme Court of Louisiana.

November 28, 2001.

Jarvis M. Antwine, Baton Rouge, Counsel for Applicant.

Richard P. Ieyoub, Attorney General, Douglas P. Moreau, District Attorney, Creighton B. Abadie, Baton Rouge, Counsel for Respondent. KNOLL, Justice.¹

We granted this writ application to consider the retroactivity and scope of LA.REV. STAT. ANN. § 15:301.1, including the limits it purports to make on State v. Jackson, 452 So.2d 682 (La.1984). For the following reasons, we find LA.REV.STAT. ANN. § 15:301.1 may be applied retroactively, that the Legislature's specific limitation on State v. Jackson and its progeny does not violate the defendant's constitutional right to appeal his conviction, and that the time limitations recognized in LA.REV.STAT. ANN. § 15:301.1(D) were inapplicable under the procedural posture of this case.

FACTS

On October 24, 1997, an off-duty East Feliciana Parish deputy pulled the defendant, Sidney Williams, over after he observed the defendant's car cross the center and fog lines several times. When the East Feliciana Parish deputy effected the stop in East Baton Rouge Parish, a state trooper was called to the scene. The trooper immediately detected an odor of alcohol on defendant. After the defendant performed poorly on a field sobriety test, the trooper transported the defendant to the East Baton Rouge Parish prison where he was given his rights pertaining to submission to a chemical test for intoxication. After submitting a breath sample, the intoxilyzer test revealed that defendant had a blood alcohol concentration of 0.144 percent. The trooper then arrested defendant.

The State charged defendant with driving while intoxicated, third offense; earlier, defendant had entered two guilty pleas on October 3, 1995, for driving while intoxicated in December of 1994 and October of 1995. After the trial court denied defendant's motions to quash, challenging the court's jurisdiction and the prior pleas as involuntary and Boykin-defective, the defendant entered a guilty plea, reserving the right to review the trial court's rulings under State v. Crosby, 338 So.2d 584 (La. 1976). The trial court sentenced defendant to three years at hard labor, suspended, and placed him on three years active probation specially conditioned on three years home incarceration under LA.CODE CRIM. PROC. ANN. art. 894.2 "through the Criminal Justice Services."

On appeal, the First Circuit unanimously affirmed defendant's conviction, but a majority of the appellate court found patent sentencing errors because the trial court ignored penalties mandated by LA. REV.STAT. ANN. § 14:98(D),² and had selected punishment not authorized by the home incarceration article.³ Accordingly, it vacated the defendant's sentence and remanded the matter to the trial court for re-sentencing. State v. Williams, 99-1840, slip op. at 6-7 (La.App. 1 Cir. 5/12/00). The dissenting judge believed that LA. REV.STAT. ANN. § 15:301.1 was inapplicable to a sentence imposed before the statute's effective date or after its 180-day amendment period had run. Id. at 1 (Pettigrew, J. dissenting). This Court issued a limited grant of defendant's writ application to address LA.REV.STAT. ANN. § 15:301.1 and to resolve a split among the circuits as to its retroactivity and the impact of the 180-day amendment period applied to the provisions specified in the statute. State v. Williams, 00-K-1725 (La.5/25/01), 792 So.2d 743.

DISCUSSION

The court of appeal's interpretation of LA.REV.STAT. ANN. § 15:301.1 places at issue the question of whether the statute could be applied retroactively and questions the authority of a reviewing court to amend or order amended an "illegally lenient" sentence when the State did not object below or complain on appeal of the leniency.

1999 LA. ACTS 94, effective August 15, 1999, embodied LA.REV.STAT. ANN. § 15:301.1 which provides:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

B. If a sentence is inconsistent with statutory provisions, upon the court's own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate or supervisory relief for the purpose of amending the sentence as provided in this Section.

C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.

D. Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.

The appellate courts of this state are split on the retroactive application of LA.REV.STAT. ANN. § 15:301.1 and the implications of the 180-day time period referenced in Paragraph (D). The First Circuit has simply cited LA.REV.STAT. ANN. § 15:301.1 without elaboration, and has applied it retroactively to crimes and sentences which occurred prior to the effective date of LA.REV.STAT. ANN. § 15:301.1, long after the 180-day amendment period ran. Williams, 99-1840 at 6; State v. Houston, 98-2658 (La.App. 1 Cir. 9/24/99), 754 So.2d 256; State v. Cadiere, 99-0970 (La.App. 1 Cir. 2/18/00), 754 So.2d 294,writ denied, 00-0815 (La.11/13/00), 774 So.2d 971.⁴ The same panel of judges decided these First Circuit cases; Judge Pettigrew dissented in each case. In stark contrast, the Third and Fifth Circuit Courts of Appeal have declined to apply LA.REV.STAT. ANN. § 15:301.1 to sentences imposed prior to August 15, 1999, apply the prior case law, and in general strictly apply the 180-day time period announced in paragraph (D).⁵

Retroactive Application of LA.REV.STAT. ANN. § 15:301.1

From the outset, we do not find that application of LA.REV.STAT. ANN. § 15:301.1 to sentences imposed prior to the statute's effective date violates the prohibition against ex post facto laws. In State ex rel. Olivieri v. State, 00-0172 c/w 00-1767 (La.2/21/01), 779 So.2d 735, cert. denied, ___ U.S. ___, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), this Court, citing California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) and Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), adopted the narrower federal ex post facto jurisprudence which focuses on whether a new law redefines criminal conduct or increases the penalty by which it is punished, not whether the defendant has simply been disadvantaged.

A careful reading of LA.REV.STAT. ANN. § 15:301.1 shows that the statute neither increases punishment for a criminal offense nor alters the terms and conditions of punishment previously established by the Legislature for the commission of a crime. Rather, the thrust of LA.REV.STAT. ANN. § 15:301.1 is procedural, i.e., it assures that legislatively recognized criminal penalties are imposed and that amendments to sentences are timely completed. Accordingly, the retroactive application of LA.REV.STAT. ANN. § 15:301.1 to sentences imposed prior to August 15, 1999, does not constitute a violation of the prohibition against ex post facto laws. Effect of LA.REV.STAT. ANN. § 15:301.1 on Jackson Fraser line of jurisprudence

Prior to August 15, 1999, the effective date of LA.REV.STAT. ANN. § 15:301.1, amendments to sentences of this kind were barred. In State v. Jackson, 452 So.2d 682 (La.1984), this Court made clear that this sort of "unsought modification ... either is or appears to be retaliatory in nature," and "may have a `chilling effect' on the exercise of the [defendant's] right to appeal." Id. at 683. See also State v. Delcambre, 480 So.2d 294, 297 (La.1985) (holding that an appellate court may not correct an illegally lenient sentence by imposing a two-year firearm enhancement penalty when the defendant was not charged with its violation, even if the law is stated in mandatory terms); State v. Williams, 439 So.2d 387 (La.1983) (per curiam) (stating that "[i]ncreasing a lawful sentence chills the right to appeal."); State v. Goodley, 423 So.2d 648, 651-652 (La. 1982) (holding that due process forbids a harsher punishment for the sole applicant resulting from an unsought correction of a patent error by a reviewing court). See also State v. Payn, 95-2166 (La.1/26/96), 666 So.2d 661 (per curiam) (stating that "[a]n appellate court may not correct a patent error which is favorable to the sole appellant in a criminal appeal."); State v. Napoli, 437 So.2d 868 (La.1983) (per curiam) (holding that when a defendant alone appeals, a court "should review only those issues raised by [him] and any patent errors favorable to [him].").

Furthermore, in State v. Fraser, 484 So.2d 122 (La.1986), we were called upon to consider the legislative amendment to LA.CODE CRIM. PROC. ANN. art. 882. That article, which had provided that "[a]n illegal sentence may be corrected at any time by the court that imposed the sentence," was legislatively amended to provide further "[a]n illegal sentence may be corrected at any time by ...