The State of Louisiana appeals from a judgment of the Orleans Parish Criminal District Court holding that the Habitual Offender Statute, L.S.A.-R.S. 15:529.1, is unconstitutional because it violates the separation of powers clause of the 1974 Louisiana Constitution. For the following reasons we determine that the statute is not unconstitutional. Nonetheless, because constitutionally excessive sentences are subject to being stricken, we remand this case to the district court for a determination as to whether the minimum sentence mandated by R.S. 15:529.1 is constitutionally excessive as applied to the defendant in this case.
On August 27, 1992, Lemuel Dorthey, a twenty-seven-year-old crack cocaine addict, was charged by a bill of information by the District Attorney's Office of Orleans Parish with violating R.S. 40:967, possession of crack cocaine. On September 23,1992, after a trial on the merits, a jury found defendant guilty of that crime. On October 7, 1992, the defendant was sentenced to serve five years at hard labor with credit for time served pursuant to L.S.A.-R.S. 40:967(C)(2). At the same time, the district attorney filed a bill of information invoking the Habitual Offender Law, to increase defendant's five year sentence, asserting that he had had three prior felony convictions for possession of cocaine.
The defendant, at the same hearing, filed a motion to quash the multiple offender bill, challenging the constitutionality of R.S. 15:529.1. On October 15, 1992, before the hearing on the multiple bill and prior to resentencing, the criminal district court judge quashed the bill of information, finding that R.S. 15:529.1, as applied in Orleans Parish, violated the Separation of Powers Clause, article 2, section 2 of the 1974 Louisiana Constitution.
It is a well established principle that the determination and definition of acts which are punishable as crimes is purely a legislative function. State v. Taylor, 479 So.2d 339 (La.1985); LSA-R.S. 14.7. It is the Legislature's prerogative to determine the length of the sentence imposed for crimes classified as felonies. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Hudson, 442 So.2d 735 (La.App. 1st Cir. 1983). Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Stetson, 317 So.2d 172 (La.1975).
The Habitual Offender Law, L.S.A.-R.S. 15:529.1, was enacted by the Legislature by Acts 1966, No. 311, Section 3. Generally, the statute provides that if the State produces evidence that a defendant has been convicted of one or more previous felonies within a certain time frame, the court is required to find him a habitual offender (second, third, or fourth) and impose sentences within the increased minimums and maximums prescribed in the statute.
Like Louisiana, most states have statutes providing for increased punishment for repeat offenders, and several such statutes have been enacted by the United States Congress. Parke v. Raley, ___ U.S. ___, ___, 113 S.Ct. 517, 522, 121 L.Ed.2d 391 (1992); State v. George, 218 La. 18, 26, 48 So.2d 265 (1950). Such provisions are a deterrent and a warning to first offenders. They protect society by attempting to remove recidivists from its midst. State v. George, supra.
Under Louisiana's Habitual Offender law a bill of information alleging that a defendant is a recidivist does not charge a new crime but merely advises the trial court of circumstances, and seeks enhanced punishment following a defendant's most recent
Furthermore, because the hearing is not a trial, legal principles such as res judicata, double jeopardy, the right to a jury trial and the like do not apply. State v. Stott, supra; State v. Langendorfer, 389 So.2d 1271, 1276-1277 (La.1980). Louisiana's Habitual Offender statute is simply an enhancement of punishment provision. It does not punish status and does not on its face impose cruel and unusual punishment. State v. Lee, 364 So.2d 1024, 1032 (La.1978); State v. Badon, 338 So.2d 665 (La.1976).
R.S. 15:529.1 has passed constitutional muster since its enactment despite a variety of attacks, including an attack on the provision which allows the district attorney the discretion regarding whom to bill as a habitual offender. In State v. Madison, 345 So.2d 485 (La.1977); State v. Badon, 338 So.2d 665 (La.1976) and State v. Overton, 337 So.2d 1201 (La.1976), this Court found that the statute's provisions granting the district attorney discretion in deciding whom to bill as a habitual offender was not invalid simply because its provisions might be selectively enforced. In these cases we determined that absent a showing of discriminatory application based on race, religion, or other arbitrary standard or classification, an allegation of selective enforcement would not prevail.
Furthermore, in State v. Badon, this Court held that the statute did not deny defendant equal protection or due process. State v. Badon, 338 So.2d at 670. More importantly, in State v. Lawson, 410 So.2d 1101, 1104 (La.1982), we recognized that the statute "is a valid limitation on the sentencing considerations listed in C.Cr.P. art. 894.1."
In the case before us, we are presented for the first time the contention that R.S. 15:529.1 is unconstitutional because it violates Louisiana's constitutional separation of powers. In addressing the contention we note that the district attorney indeed has the discretionary power to bring habitual offender bills of information just as he has the initial unlimited power to prosecute "whom, when, and how" he chooses.
This Court has never held, and we are not prepared to do so now, that the application of R.S. 15:529.1 violates the separation of powers doctrine. Defendant's main argument is based on State v. LeCompte, 406 So.2d 1300 (La.1981) (on rehearing). LeCompte did not challenge either the discretionary constitutional authority of the district attorney to prosecute a defendant or the district attorney's statutory charge to decide whether to multiple bill a defendant. Rather, LeCompte involved a statute, R.S. 40:967(G)(2) which permitted reductions or suspension of sentence to convicted defendants who provided substantial assistance in the identification, arrest or conviction of other parties or conspirators
All we did in LeCompte was interpret the statute in a way so as to have it grant the court the discretion, on its own motion (not just on motion of the district attorney), to reduce or suspend a convicted defendant's sentence when the convicted defendant meets the requirements of the statute. By doing so, we obviated the need to decide if separation of powers was offended by giving sole discretion to the district attorney in this situation. Thus, relator's contention that R.S. 15:529.1 is unconstitutional based on a violation of the separation of powers is not supported by the holding in LeCompte.
In essence, based on our understanding of the traditional role of the district attorney in criminal prosecution and the power of the Legislature to vest him with discretionary functions pertaining to criminal prosecution at the initial and subsequent stages of prosecution, we conclude that the provisions of 15:529.1 do not violate Louisiana's constitutional separation of powers. By imposing certain habitual offender statuses and corresponding penalties, the Legislature has merely established a procedure which enables a district attorney to seek and the courts to exact more severe sentences on defendants who repeatedly violate the criminal laws. The Legislature has acted within its constitutional authority which allows it to determine and define a crime and provide its penalty. It has not delegated any of its duties to the judicial or executive branches, nor has it usurped the judiciary's discretion in sentencing a defendant. Accordingly, no separation of powers violation exists. Consequently, the judgment of the district court, holding R.S. 15:529.1 unconstitutional, will be reversed.
Nevertheless, we recognize that the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch. Accordingly, Louisiana's judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La. 1979). According to Sepulvado, the 1974 Louisiana Constitution, Article I, Section 20
Rights of the Louisiana Constitution of 1974", 35 La.L.Rev. 1, 63 (1974). Thus, "[t]he imposition of a sentence, although within the statutory limit, may violate a defendant's constitutional right against excessive punishment ..." Id. at 767. Accordingly, under the 1974 Constitution "the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court." Id. at 764.
"A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Scott, 593 So.2d 704, 710 (La.App. 4th Cir.1991); State v. Lobato, 603 So.2d 739, 751 (La.1992).
The record indicates that the trial judge had difficulty imposing a twenty year sentence on a twenty seven year old crack cocaine addict simply because he had been convicted for a fourth time for possession of cocaine (see Footnote 6). If, in this case when defendant is ultimately sentenced, the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime", he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally
For the foregoing reasons we find that R.S. 15:529.1 is not unconstitutional, in violation of Louisiana's constitutional separation of powers. We remand the case to the district court for further proceedings, including resentencing, subject to the district court's determination as to whether the minimum sentence mandated by R.S. 15:529.1 for this defendant and for this crime is constitutionally excessive.
JUDGMENT OF DISTRICT COURT REVERSED; REMANDED
MARCUS, J., concurs and assigns reasons.
MARCUS, Justice (concurring).
I agree with the majority's holding that the trial judge has the power to determine if the minimum punishment mandated by the multiple offender law is constitutionally excessive as applied to a particular defendant. However, the minimum sentences provided for by the multiple offender statute should be presumed constitutional. The trial court should not deviate from the statutory minimum sentences unless it clearly finds the sentence "is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering." State v. Lobato, 603 So.2d 739, 751 (La.1992). In my view, such a situation would be rarely presented. Where the trial court does find the sentence unconstitutionally excessive, the state may exercise its right of review under La.Code Crim.P. art. 882(B).
Accordingly, I respectfully concur.