The issue presented is whether a sentence imposed for possession of a firearm by a felon, a violation of La. R.S. 14:95.1, is subject to further enhancement under the habitual offender law, La. R.S. 15:529.1 Because we find nothing in the language of either statute which would prohibit the enhancement of a sentence imposed for a violation of La. R.S. 14:95.1 under the circumstances of this case, we affirm the appellate court decision.
FACTS and PROCEDURAL HISTORY
The defendant, Monolo Anton Baker ("Baker" or "defendant"), has the following relevant criminal history:
(1) December 16, 1996 felony conviction for aggravated battery, a violation of La. R.S. 14:34; and
(2) September 13, 1999 felony conviction for illegal possession of stolen things, a violation of La. R.S. 14:69.
Thereafter, Baker was arrested and charged with a violation of La. R.S. 14:95.1, possession of a firearm by a convicted
On January 27, 2005, Baker, entered a plea of guilty as charged to being a felon in possession of a firearm. On March 16, 2005, the district judge sentenced Baker to eleven and a half (11½) years imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
Thereafter, the state filed an habitual offender bill of information, seeking to enhance Baker's firearm sentence under the provisions of La. R.S. 15:529.1. The state alleged in the multiple bill that Baker was a second felony offender based on the current 2005 conviction for possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, and the 1999 felony conviction for illegal possession of stolen things, a violation of La. R.S. 14:69.
Thus, the state relied upon Baker's prior conviction for a violation of La. R.S. 14:34, aggravated battery, as an element in charging the defendant with having violated La. R.S. 14:95.1 and a different prior felony conviction for a violation of La. R.S. 14:69, illegal possession of stolen things, in seeking to have his sentence enhanced. Baker objected to the habitual offender bill, arguing that his sentence for a violation of La. R.S. 14:95.1 could not be enhanced beyond the penalty provisions provided in that statute.
After a hearing, the district judge adjudicated Baker a second felony offender, vacated his prior sentence of eleven and a half years (11½) imprisonment at hard labor, and sentenced Baker to fifteen (15) years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The district judge denied Baker's motion to reconsider the sentence.
On appeal, the Second Circuit affirmed Baker's adjudication and sentence as an habitual offender. The appellate court rejected Baker's sole argument that his adjudication and sentencing as an habitual offender following his conviction for felon in possession of a firearm constituted "double enhancement" prohibited by this court's decisions in State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978).
LAW AND DISCUSSION
Prior Precedent from this Court
Baker urges that his habitual offender adjudication and sentence must be vacated under the holdings of Sanders and Firmin. In Sanders, this court was presented with the res nova question "whether the state may multiple-bill a person, who was convicted under R.S. 14:95.1 of being a convicted felon who carries a concealed weapon, by using in the multiple-bill the same felony convictions alleged as elements of the offense." Id., 337 So.2d at 1132.
The defendant in that criminal matter, Clarence Sanders, had three prior felony convictions for the following crimes: an armed robbery in 1955, another armed robbery in 1961 and attempted simple burglary in 1970. He was subsequently charged with violating La. R.S. 14:95.1, which makes it a crime for a convicted
On review, this court discussed two concepts. First, the court found that the state's attempt to further enlarge Sanders' firearms penalty was an improper attempt to use the defendant's prior convictions twice: "first, to establish his status as a convicted felon so as to convict him of the crime, and, second to increase the penalty through a multiple bill." Id., 337 So.2d at 1134. In finding such a "double enhancement" improper, the court noted that "[t]he act of possessing or concealing [a weapon under La. R.S. 14:95.1] becomes a felony only because the person has the status of convicted felon" and that the legislature itself had imposed an increased penalty on a felon who was found to be the possessor or concealor of a weapon. Id. Thus, the court answered the res nova question presented by the facts of that case in the negative, i.e. the state may not use the habitual offender law to enhance a sentence for a conviction under La. R.S. 14:95.1 by using in the multiple bill the same felony convictions alleged as elements of the firearm offense.
The second concept which Sanders discussed was a determination that no further enhancement, other than the penalties already described in La. R.S.14:95.1, could be made to a sentence imposed under that statute. In reaching this conclusion, the court presumed that the legislature must not have intended for the state to use the habitual offender law to further enhance a sentence for a firearms conviction under La. R.S. 14:95.1. "Since the legislature in passing R.S. 14:95.1 has in that very statute provided enhanced penalties for the act of concealing a weapon when the concealor is a felon, we therefore presume that it must not have intended the multiple enhancement incident to the state's using R.S. 15:529.1 to further enhance the penalty." Sanders, 337 So.2d at 1134. To support the court's presumption, the court looked to the decisions of other state courts regarding enhancement of crimes which took into account the status of the offender and the fact that the legislature did not specifically indicate in the language of the firearms statute that a sentence imposed under La. R.S. 14:95.1 could be enhanced under the habitual offender law. Sanders, 337 So.2d at 1134-35.
The court's ultimate holding in Sanders was the following statement:
Despite the second, more far-reaching holding of Sanders, the decision was bound to its facts, that is, the state had attempted to use the habitual offender law to enhance a sentence for a conviction under La. R.S. 14:95.1 by using in the multiple bill the same felony convictions alleged as an element of the firearms offense.
Two years later, the court subsequently removed any doubt as to the reach of the
Although Firmin has not been cited as authority in any subsequent opinions, Sanders has continued to be cited as authority, both in situations involving La. R.S. 14:95.1 and for other crimes for the propositions: (1) that the same prior conviction cannot be used as an element in the underlying felony and as a prior conviction in a multiple offender bill seeking to enhance that felony,
Court of Appeal Analysis
On appeal, Baker argued that his adjudication as a multiple offender was improper under Sanders and Firmin as an impermissible double enhancement of his firearms conviction. The state countered that no double enhancement occurred because Baker's 1996 aggravated battery conviction supported Baker's firearm violation under La. R.S. 14:95.1, while his prior 1999 conviction for possession of stolen things was used to support the habitual offender charge under La. R.S. 15:529.1.
Although the Second Circuit acknowledged the reasoning of this court's opinions in Sanders and Firmin, the appellate court continued its analysis by citing to, and ultimately relying upon, appellate court cases which address a totally different issue than the one presented here. Instead of trying to determine whether a sentence under La. R.S. 14:95.1 could be enhanced by habitual offender proceedings, the court of appeal focused on the use of a firearms conviction to enhance a
The appellate court cited to the Fourth Circuit's opinion in State v. Hymes, 513 So.2d 371 (La.App. 4 Cir.1987), wherein that appellate court held that a felon in possession of a firearm conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element in the firearms
From these appellate court opinions, the Second Circuit drew the conclusion that "no impermissible double enhancement occurred in Baker's case" because the conviction used to prove an essential element of the firearm possession offense was not the prior conviction then used to enhance the offender status and sentence of the firearm conviction under the habitual offender proceedings. Baker, 40,997 p. 6, 935 So.2d at 369.
Although the court of appeal ignored clear precedent from this court, a practice which we cannot condone, its doing so resulted in our granting a writ of review. Consequently, the court has been provided with an opportunity to re-evaluate our previous opinions on this issue.
Our interpretation of a Louisiana criminal statute is governed by the following rule:
La. R.S. 14:3; see State v. Skipper, 2004-2137 p. 3 (La.6/29/05), 906 So.2d 399, 403.
As originally enacted, and as the form of the statute at issue in Sanders, La. R.S. 14:95.1 provided:
In Sanders, the court pretermitted discussion of constitutional issues of double jeopardy and due process by deciding the issue presented on the basis of legislative intent.
In Sanders, this court noted that the terms of the statute did not "indicate that a greater penalty could be superimposed by multiple-billing" and from that determined that the intent of the legislature was to prevent habitual offender enhancement of a sentence under La. R.S. 14:95.1. Id., 337 So.2d at 1135. Sanders contrasted the lack of explicit language in the firearms statute with explicit language in a then-recent amendment of La.C.Cr.P. art. 893, which indicated that the state could multiple bill a person on the basis of a suspended sentence. Id.
After reviewing the language of La. R.S. 14:95.1, we find that there is nothing in the statute, both as originally enacted and as now configured,
We find our previous reasoning in Sanders to be faulty in this respect. Although the legislature did include specific language regarding enhancement in La. C.Cr.P. art. 893, the lack of explicit language in the statute at issue does not automatically mean that the habitual offender law does not apply. Instead, we find the lack of such specific language in the firearm statute to be similar to many other felony criminal statutes, which rely on the general applicability of the language of the habitual offender law to enhance the penalties of those crimes when there are prior felony convictions.
We find there is nothing in the statute's purpose which would prevent enhancement of a penalty imposed under its provisions. This court has previously determined the purpose of La. R.S. 14:95.1, as follows:
State v. Amos, 343 So.2d 166, 168 (La. 1977).
Similarly, there is nothing in the purpose of the habitual offender law which would prohibit enhancement of a sentence under La. R.S. 14:95.1. "The purpose of the Habitual Offender Law is to deter and punish recidivism." State v. Everett, 2000-2998 p. 7 (La.5/14/02), 816 So.2d 1272, 1276.
Further, we do not find that the combination of these two statutes would lead to a result unintended by their purposes. We do not find that a sentence imposed under La. R.S. 14:95.1, enhanced as a habitual offender, would negate the purpose of limiting the possession of firearms by persons who have already demonstrated a dangerous disregard for the law and who present a potential threat of further or future criminal activity. In fact, a person who, having been convicted of multiple felonies, now possesses or conceals a firearm in violation of the law, is precisely the sort of person whose punishment should be enhanced as a multiple offender.
Turning now to the context of the statute, we see that our determination in Sanders was perhaps unduly influenced by the manner of the statute's enactment. La. R.S. 14:95.1 was enacted in 1975 in the same act which amended provisions of the previously existing La. R.S. 14:95. La. R.S. 14:95 makes criminal the intentional concealment of a firearm, and various other offenses concerning other types of weapons, and is punished as a misdemeanor for a first offense.
A review of the reasoning in Sanders makes clear that the court previously considered La. R.S. 14:95.1 as some sort of extension of La. R.S. 14:95. Sanders notes that, by passing La. R.S. 14:95.1, the legislature raised the maximum penalty for carrying a concealed weapon from a misdemeanor to a felony with a punishment of ten years "because the person has committed prior felonies." Sanders, 337 So.2d at 1133. However, in La. R.S. 14:95.1, "the legislature enacted special legislation to punish a person who has been convicted of certain enumerated felonies and who possesses a firearm or concealed weapon." State v. Clement, 368 So.2d 1037, 1039 (La.1979). Although there is some overlap with regard to making the concealment of a firearm a crime, La. R.S. 14:95 does not make criminal the mere possession of a firearm,
Nevertheless, in Sanders, we characterized the enactment of La. R.S. 14:95.1 as an "increased penalty" imposed on a possessor or concealor of a weapon who was a felon and made assumptions about both the reasons for the statute's enactment and presumptions about how the statute should apply. We held:
However, our assumption, that the purpose behind the legislature's enactment of La. R.S. 14:95.1 was to provide for greater punishment of a multiple offender of La. R.S. 14:95, was invalidated in that the very act which created La. R.S. 14:95.1 also included in another section harsher punishments for second and subsequent offenders of La. R.S. 14:95. Consequently, our presumption, that the legislature did not intend for habitual offender enhancement of a penalty imposed under La. R.S.
Nor was further analysis added by the court's pronouncement in Firmin. Indeed, Firmin, a three-paragraph per curiam opinion, states without additional reasoning that the "rule of State v. Sanders, supra, is still applicable and the defendant should not have been sentenced as a multiple offender." Id., 354 So.2d at 1355.
We hold today that our determination in both Sanders and Firmin, that a sentence imposed under La. R.S. 14:95.1 may not be further enhanced under the habitual offender statute, was in error, and these cases are overruled to the extent that they stand for this proposition. However, we note that the other holding in Sanders, that the state may not seek multiple enhancement of a defendant's sentence on the basis of the same set of prior convictions, was recently cited with approval by this court in State v. Ruiz, 2006-1755 p. 12-13 (La.4/11/07), 955 So.2d 81, 89. Since in this case the state used a different prior felony conviction as the element in charging a violation of La. R.S. 14:95.1 from the prior felony conviction used in the multiple offender bill of information to enhance the firearms sentence, we are not required to re-evaluate that portion of the holding in Sanders.
Upon our re-evaluation of the interpretation and statutory intent of La. R.S. 14:95.1, we find that our earlier holding in Sanders, to the extent that we held that a sentence imposed under La. R.S. 14:95.1 may not be enhanced as an habitual offender, was in error. Instead, we hold that, in order to give a genuine construction to La. R.S. 14:95.1, according to the fair import of the words of the statute, taken in their usual sense, and in connection with the context and with reference to the purpose of the provision, a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearms conviction is not also used as a prior felony conviction in the habitual offender bill of information.
Applicability to Baker
During oral argument, the question was raised as to what effect there should be for the defendant herein should we rule that our holding in Sanders was in error. Our
We find that a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. To the extent that cases state to the contrary, including State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978), they are overruled.
CALOGERO, C.J., dissents and assigns reasons.
JOHNSON, J., dissents.
CALOGERO, Chief Justice, dissenting.
I respectfully dissent from the majority opinion. In this court's seminal opinion in State v. Sanders, 337 So.2d 1131 (La.1976), we held that the state may not multiple-bill a person who has been convicted under La.Rev.Stat. 14:95.1 of being a convicted felon in possession of a firearm by using in the multiple offender bill the same felony conviction or convictions alleged as elements of the firearms offense. Regarding the legislative intent behind the penalty provision, we specifically observed that "the penalty provisions enacted in La.Rev. Stat. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant's previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty." Sanders, 337 So.2d at 1135.
In State v. Firmin, 354 So.2d 1355 (La. 1978), this court then specifically applied the Sanders rationale to facts identical to the instant case and held that the state may not adjudicate and sentence a defendant as a habitual offender under La.Rev. Stat. 15:529.1 after his conviction in the same prosecution for being a felon in possession of a firearm, even when the conviction or convictions used to charge the defendant as a habitual offender are not the same convictions used to convict him of the firearm offense. Thus, in Firmin and Sanders, this court identified and enforced the intent of the legislature regarding sentencing enhancement for violations of La.Rev.Stat. 14:95.1 under the habitual offender law, La.Rev.Stat. 15:529.1.
ON APPLICATION FOR REHEARING
CALOGERO, Chief Justice, granting rehearing and assigning reasons.
I would grant rehearing in this matter on two bases.
First, for the reasons assigned in my dissent on original hearing, I believe there was no rational or legal basis for overruling State v. Firmin, 354 So.2d 1355 (La. 1978), and State v. Sanders, 337 So.2d 1131 (La.1976). State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, 2007 WL 2994601, Calogero, C.J., dissenting. This court in those cases identified and enforced the legislative intent regarding sentencing enhancement for violations of La. Rev.Stat. 14:95.1 under the habitual offender law, La.Rev.Stat. 15:529.1, and the legislature has presumably agreed with that interpretation as it did not revise the law thereafter.
Second, I believe the defendant makes a credible argument that the majority's wholly new and substantive interpretation of La.Rev.Stat. 15:529.1 and La.Rev.Stat. 14:95.1 should not retroactively apply to his guilty plea. The law as interpreted by this court at the time of the commission of the offense, as well as when the defendant entered his guilty plea, clearly and unequivocally provided that a sentence for a violation of La.Rev.Stat. 14:95.1 could not be further enhanced under La.Rev.Stat. 15:529.1; therefore, as the defendant asserts, in entering his guilty plea, he and his counsel reasonably relied on this court's clear pronouncement of the law. Now that the majority has substantively changed the law and made that change retroactive to the defendant, his plea, premised as it was on the law in effect at the time of the commission of the offense and when he entered his plea, is rendered unknowing and involuntary.
In Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), the United States Supreme Court noted that a judicial change in the law could deprive a defendant of his due process rights—in particular, notice, foreseeability, and the right to fair warning—if the change were unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, citing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In the instant case, surely the majority's substantive reinterpretation of the statutes was unexpected, as this court had specifically identified and enforced the legislative intent behind the statutes, and the legislature had left that interpretation in place for decades. Moreover, the majority's new interpretation,
The statute currently provides: