Opinion
NO. 2011-KA-0887
10-19-2011
STATE OF LOUISIANA v. WILLIAM OLIVER
Leon A. Cannizzaro, Jr. District Attorney Felicity Strachan Assistant District Attorney COUNSEL FOR STATE OF LOUISIANA Sandra Mason ORLEANS PUBLIC DEFENDERS COUNSEL FOR DEFENDANT/APPELLANT, WILLIAM OLIVER
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 498-165, SECTION "J"
Honorable Darryl A. Derbigny, Judge
Judge Dennis R. Bagneris , Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard, and Judge Paul A. Bonin)
Leon A. Cannizzaro, Jr.
District Attorney
Felicity Strachan
Assistant District Attorney
COUNSEL FOR STATE OF LOUISIANA
Sandra Mason
ORLEANS PUBLIC DEFENDERS
COUNSEL FOR DEFENDANT/APPELLANT, WILLIAM OLIVER
AFFIRMED
William Oliver was charged with one count of possession of marijuana, third offense, under La. R.S. 40:966(E) (2). He was arraigned on March 24, 2010. On May 13, 2010, Oliver orally moved to quash the indictment, arguing that the statute is unconstitutional. Oliver asserted that La.R.S.40:966(E)(2) allows an enhancement of his potential sentence, despite the fact that his first and second convictions were reached without the benefit of a jury trial. The motion was denied by the trial court. The state then amended the bill of information, charging Oliver with second offense possession of marijuana. Thereafter, he pled guilty to second offense possession under the provisions of State v. Crosby, 338 So.2d 584 (La. 1976).
Oliver filed this timely appeal.
Because Oliver pled guilty under State v. Crosby prior to trial (infra), there are no facts in evidence.
A review of the record reveals no patent errors.
In his sole assignment of error, Oliver argues that the trial court erred in denying his motion to quash the bill of information.
The issue before this Court concerns whether an earlier non-jury conviction may be used to enhance penalties Oliver may face in a later bill of information. In the matter sub judice, Oliver finds himself exposed to the possibility of a more draconian penalty because of earlier convictions where, by law, he was not afforded a jury trial. Specifically, Oliver argues that, "To the extent that La.R.S. 40:966(E)(2) provides that the maximum sentence available is increased from a maximum of six months incarceration to a maximum penalty of five years incarceration, the statute is unconstitutional."
The appellant acknowledges that the issues presented in this appeal are analogous to those presented in State v. Tyrone Jefferson, 2008-2204 (La. 12/01/09), 26 So. 3d 112.
Oliver further argues that the trial court's failure to grant his Motion to Quash the Bill of Information by which he is currently charged was error.
He has pled guilty to La. R. S. § 40:966(E)(2) which states, in pertinent part: E. Possession of marijuana, or synthetic cannabinoids.
(2)(a) Except as provided in Subsection F or G of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids, the offender shall be fined not less than two hundred fifty dollars, nor more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both.
Oliver maintains that La. R.S. 40:966(E)(2) is unconstitutional to the extent that the statute provides for an increase in the maximum sentence from six months to five years, based upon a conviction during which he was not permitted to have a jury trial. Quoting from both the U. S. Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana Supreme Court's ruling in State v. Brown, 2003-2788 (La. 07/06/04), 879 So.2d 1276, he argues that sentencing in the instant case requires a finding that La. R.S. 40:966(E) is unconstitutional because it allows the State to increase the maximum sentence when a person has a prior misdemeanor conviction for which he was not entitled to a jury trial. Oliver suggests that under Brown and the United States Supreme Court's Apprendi line of jurisprudence, "all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury." Apprendi, 120 S.Ct. 2348, 530 U.S. at 499; discussed below.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), defendant Charles C. Apprendi pled guilty to possession of firearm for unlawful purpose and unlawful possession of prohibited weapon. Apprendi was sentenced to a longer term under New Jersey's hate crime statute; the hate crime designation was reached after the prosecutor filed a motion to enhance the sentence. The trial court found, by a preponderance of the evidence, that the shooting was racially motivated and thereafter sentenced Apprendi to a twelve-year term without benefit of trial. The United States Supreme Court granted certiorari. The Apprendi Court held:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in thatApprendi, 120 S. Ct. at 2363, 530 U.S. at 490, 147 L. Ed. 2d 435 (2000).
case:
"[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."
In State v. Quincy Brown, 2003-2788 (La. 07/06/04), 879 So. 2d 1276, an armed robbery defendant was convicted of robbery, after which, the state sought to charge the appellant as a multiple offender because of a prior juvenile conviction. Defense counsel filed a written motion to quash to accompany a motion made orally in open court. The Louisiana Supreme Court ruled that the defendant's Sixth and Fourteenth Amendment rights were violated by the use of a juvenile adjudication to increase a felony penalty at a later proceeding, since that adjudication
was not established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.Brown, 2003-2788, p. 22, 879 So. 2d at 1290.
Oliver argues that, just as the use of a juvenile adjudication in Brown violated Apprendi, so does the use of La. R. S. §40:966(E)(2), a third offense marijuana offense conviction, where there is also no right to a jury trial.
In State v. Jefferson, 2008-2204, pp. 1-2, 4, (La. 12/1/09), 26 So. 3d 112, 113, the issue was revisited when a district court found that the State's use of the nonjury misdemeanor as a predicate to increase the maximum sentence for a second offense marijuana conviction violated the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana Supreme Court in State v. Brown, 2003-2788 (La. 7/6/04), 879 So.2d 1276. The Court wrote:
For the reasons set forth, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use of a prior valid, fair, and reliable conviction of a misdemeanor, obtained against an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Accordingly, we reverse the judgment of the district court granting the defendant's motion to quash and declaring La.R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.Jefferson, 2008-2204, pp. 1-21, (La. 12/1/09), 26 So. 3d at 113-124.
In fact, a defendant in a misdemeanor prosecution involving a petty crime is entitled to all the procedural protections available to a defendant in a felony prosecution, with the exception of the right to a jury trial, which the U.S. Supreme Court has determined is not essential to fair and reliable fact finding in a misdemeanor case involving a petty or non-serious crime. Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) ("[W]e hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.").
* * *
In the final analysis, we find that Louisiana's statutory scheme of increased punishment for recidivist marijuana possession is in line with the constitutional principles of Apprendi and its progeny, and does not conflict with our ruling in Brown, which is limited to juvenile adjudications and the unique nature of the juvenile justice system. More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana's statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.
This issue was addressed by our Court in State v. Odoms, 2010-1278, pp. 2-3 (La. App. 4 Cir. 3/16/11), 62 So. 3d 252, 253-54. The appellant in Odoms raised the same arguments concerning La. R.S. 40:966(E) as does the appellant in the matter sub judice. Here quoting Jefferson, this Court held:
(Appellant) argues that the United State Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana
Supreme Court's ruling in State v. Brown, 2003-2788 (La.07/06/04), 879 So.2d 1276, mandate a finding that La. R.S. 40:966(E) is unconstitutional because the statute allows the State to increase the maximum sentence to which he was exposed based upon at least one prior misdemeanor conviction for which he was not entitled to a jury trial. He acknowledges that this argument is the same as that rejected by the Supreme Court in State v. Jefferson, 2008-2204 (La.12/1/09), 26 So.3d 112.
* * *
More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana's statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding. (Emphasis added).
Odoms, 2010-1278, p.5, 62 So. 3d 252, 255.
In the instant case, Oliver asserts that the misdemeanor predicate, two prior convictions for possession of marijuana, increases the potential penalty in this case thereby violating the Sixth Amendment's jury trial guarantee and the Due Process Clause of the 14th Amendment. To the extent that La. R. S. 40:966(E)(2) provides that the maximum sentence available is increased from six months incarceration to a maximum penalty of five years incarceration, the statute is unconstitutional.
The state argues that, as applied to Oliver, the statute does not violate the Sixth and Fourteenth Amendments to the United States Constitution. Brown, 2003-2788, p.22, 879 So. 2d at 1290 (infra) arises from the line of jurisprudence that began with Almendarez-Torres v. United States, 523 U.S. 224 (1998), and continued with Apprendi, 526 U.S. 227 (1999). Recent jurisprudence has clarified questions concerning the constitutionality of non-jury trials.
Jefferson was followed by this Honorable Court in State v. George, 20081193, p.4 (La. App. 4 Cir. 2010), 34 So.3d 941. There, the Court acknowledged that in Apprendi, the U.S. Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-2363.
In State v. Landry, 2010-1225, p.5 (La. App. 4 Cir. 2/16/11), 60 So. 3d 714, 716, a case in which a conviction for prostitution was preceded by a prior prostitution arrest, this Court quotes Jefferson in ruling:
The Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana's statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.
Finally, in State v. Tolbert, 2010-1453, pp.3-4 (La. App. 4 Cir. 5/18/11), 66 So. 3d 524, 526, our Court again relied on the holding in Jefferson. The Court observed:
Pleading under Crosby, the appellant contends that the holdings in the Apprendi and Brown cases mandate a finding that La. R.S. 40:966(E) is unconstitutional because the statute allowed the State to increase the maximum sentence to which he was exposed based upon at least one prior misdemeanor conviction for which he was not entitled to a jury trial. Mr. Tolbert acknowledges that this argument was rejected by the Louisiana Supreme Court in State v. Jefferson, 2008-2204 (La. 12/1/09), 26 So.3d 112. Nonetheless, he now raises this claim for this court's reconsideration and to preserve the issue for possible future federal review.Tolbert, 2010-1453, pp. 3, 5, 66 So. 3d 524, 528.
* * *
Summarizing, Mr. Tolbert's contention is that given the holdings in the Apprendi and Brown cases any enhancement based on a misdemeanor conviction is unconstitutional. Both this court and the Louisiana Supreme Court have rejected this same contention. The
district court thus did not err by denying Mr. Tolbert's motion to quash based on this contention. This assignment of error has no merit.
We find that Oliver's sole assignment of error has been rejected by both this Court and by the Louisiana Supreme Court, and is presented to this Court at this time in order to preserve the issue for later appeal. Oliver avers that under Apprendi and Brown, those criminal statutes which permit enhancement violate the Sixth and Fourteenth Amendments of the U.S. Constitution. In State v. Jefferson, the Louisiana Supreme Court rejected this argument, holding that a trial court is capable of rendering a fair verdict without violating the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown.
Decree
For the reasons stated herein, we affirm William Oliver's conviction and sentence.
AFFIRMED