Opinion
No. 2019-KH-01247
12-22-2020
STATE of Louisiana v. Shannon Charles FERGUSON
Writ application denied.
Johnson, C.J., would grant and assigns reasons.
Hughes, J., would grant.
Weimer, J., recused.
Johnson, C.J., would grant and assigns reasons:
Mr. Ferguson was sentenced as a habitual offender to sixty years in prison for possessing .03 grams of crack cocaine. He was 55-years-old when the prosecutor filed a multiple bill against him asking for the enhanced sentence.
Mr. Ferguson's criminal history contains only one crime of violence; he pled guilty to aggravated battery 24 years ago. The remaining four predicate convictions were all petty, non-violent crimes: a 1994 conviction for unauthorized use of a moveable over $1,000.00; a 2000 conviction for illegal possession of stolen things worth $300-500; and convictions in 2004 for unauthorized entry of an inhabited dwelling and monetary instrument abuse. He pled guilty each time. State v. Ferguson , 15-0427, p.2 n.2, (La. App. 1 Cir. 9/18/15), 181 So.3d 120, 128 writ denied, 15-1919 (La. 11/18/16), 210 So.3d 282.
On direct review, Mr. Ferguson argued that his sentence was unconstitutionally excessive, but the court of appeal held that: "because ... [he] fail[ed] to file a motion to reconsider sentence after being adjudicated and sentenced as a fifth-felony habitual offender, the defendant is procedurally barred from having this assignment of error reviewed on appeal." Ferguson , 2015-0427, p. 18; 81 So. 3d at 137 (citing State v. Duncan, 94–1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 ). Mr. Ferguson makes the same claim here on collateral review.
A sentence is unconstitutionally excessive under Article 1, § 20 of the Louisiana Constitution if it makes no measurable contribution to acceptable goals of punishment or amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey , 623 So.2d 1276 (La.1993) ; State v. Johnson , 709 So.2d 672 (La 1998) ; see also State v. Bonanno , 384 So.2d 355, 358 (La. 1980) ("To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice."), citing State v. Beavers , 382 So.2d 943 (La. 1980). The Eighth Amendment to the Constitution prohibits cruel and unusual punishments, including not just barbaric punishments, but also those that are disproportionate to the crime committed. Weems v. United States , 217 U.S. 349 (1920) ; Solem v. Helm , 463 U.S. 277, 284 (1983).
The infinitesimally small nature of .03 grams of crack cocaine is difficult to describe, but if you were to hold this amount of crack cocaine in the palm of your hand, it would be barely more than a dot about the size of a grain of coarse sea salt. Sixty years in prison is grossly disproportionate to defendant's offense of having a speck of crack cocaine in his pocket lint. The sentence makes no contribution to any acceptable goal of punishment and is needless imposition of pain and suffering. It is cruel and unusual and violates the state and federal constitution.
Therefore, despite Mr. Ferguson's failure to make the requisite objection at sentencing, I would grant the writ in the interests of justice. Procedural niceties must give way to correct a substantial injustice. I would grant the writ as part of our "corrective measures with regard to the misuse of the State's habitual offender adjudication and sentencing regime in certain jurisdictions." State v. Kennon , 2019-00998, p. 12 (La. 9/1/20) (Crichton, J., concurring). A defendant with a sentence this absurd must be able to challenge its excessiveness on collateral review despite the procedural posture of his case.