SUPREME COURT OF LOUISIANA

Transcription

1 SUPREME COURT OF LOUISIANA No. 96-K-304 STATE OF LOUISIANA Versus DONALD JOHNSON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS VICTORY, Justice * We granted writs of certiorari in is case to determine wheer an appellate court may rule upon e excessiveness of a defendant s sentence when e defendant does not argue excessiveness as an assignment of error. For e reasons expressed below, we hold at e court of appeal erred in addressing sua sponte e issue of wheer Donald Johnson s sentence is constitutionally excessive. FACTS AND PROCEDURAL HISTORY Around :00 a.m. on May 8, 994, a man, later identified as Donald Johnson, entered e Family Dollar Store in Gentilly. Thomas Hurst, e manager of e store, noticed Johnson loitering in e shoe department. Hurst watched Johnson lace a pair of shoes which he had removed from a shoe display in e store. He en watched Johnson lace a second pair of shoes. At is time Hurst was called to e front of e store. Soon after Hurst went to e front of e store he noticed Johnson attempt to leave e store wearing a pair of e shoes which Hurst saw Johnson lacing. Hurst * Calogero, C.J., not on panel. Rule IV, Part, 3. This case is consolidated wi State of Louisiana v. Walter Johnson, (La. _/_/98), So.d. However, we have rendered a separate opinion in each case.

2 asked Johnson to step back into e store. Johnson en pretended to grab at someing under his shirt and told Hurst at he had a gun and would blow him away. Hurst backed away. Anoer shopper, whose child began to cry as a result of e scene, slapped Johnson in e face. Johnson en fled e store on a bicycle. One hour later Johnson was arrested for shoplifting items at a nearby K-Mart. The arresting officers returned Johnson to e Family Dollar Store where Hurst identified Johnson, who was still wearing e stolen sneakers. Johnson was charged wi one count of first degree robbery and was found guilty after a jury trial. The state en filed a habitual offender bill to which Johnson pled guilty. He was sentenced to twenty-six years and eight mons, e statutory minimum for a triple offender wi an underlying conviction of first degree robbery. Johnson s counsel filed an appeal requesting an errors patent review by e Four Circuit Court of Appeal. Johnson filed a pro se brief, raising as errors double jeopardy and ineffective assistance of counsel. Excessiveness of e sentence was neier raised nor briefed as an assignment of error. The Four Circuit dismissed Johnson s claims of bo double jeopardy and ineffective assistance of counsel. State v. Johnson, (La.App. 4 Cir. /0/96), So.d. The court en looked at e sentence imposed on Johnson. It acknowledged at e jury was correct in convicting Johnson of first degree robbery. In addition, Johnson was correctly found to be a multiple offender and received e minimum sentence mandated by e Legislature. But e court noted at Johnson did not have a history of violent crime. The court also characterized e facts surrounding Johnson had prior felony convictions for possession of crack cocaine, possession wi intent to distribute crack cocaine, and multiple offender eft. He also had prior misdemeanor convictions for eft under $00, possession of stolen property under $00, battery of a police officer, resisting arrest, and eft under $00. Despite having ree prior felony convictions, Johnson was only multiple billed as a triple offender.

3 his robbery conviction as simply shoplifting a pair of inexpensive tennis shoes. Id. at p.5, So.d at. While noting at Johnson deserves imprisonment, e court found e mandatory minimum sentence excessive given e circumstances of e instant offense and Johnson s previous convictions. Thus, e court, citing State v. Dorey, 63 So.d 76 (La. 993), vacated Johnson s sentence and remanded him to e trial court for re-sentencing. DISCUSSION In State v. Sepulvado, 367 So.d 76 (La. 979), is Court held at Article I, Section 0 of e 974 Louisiana Constitution gives appellate courts a basis for reviewing sentences imposed in individual cases to determine wheer ese sentences are constitutionally excessive. Only a few mons later, in State v. Cox, 369 So.d 8 (La. 979), we addressed e procedural requirements necessary for appellate review of a sentence as excessive. The issue in Cox was wheer an objection to a sentence as excessive must be made in e trial court at e time e sentence is imposed in order to allow appellate review of e sentence as excessive. We held at excessiveness of a sentence may be reviewed by an appellate court even in e absence of an objection at e time e sentence is imposed. However, we still adhered to e requirement at: Id. at. [w]i e exception of dea penalty cases (which is court must independently review in each instance for excessiveness, La.C.Cr.P. art ), individual excessiveness of sentence may be considered on appeal only where presented by assignment of error, La.C.Cr.P. art. 90(), formally made as required by La.C.Cr.P. art [emphasis added] Cox, en, while announcing e rule at an objection in e trial court to a sentence as excessive was no longer a necessary prerequisite to an appellate court s consideration of e issue of excessiveness, recognized at excessiveness of sentence 3

4 could not be considered on appeal unless presented by e defendant as an assignment of error. Lower courts have followed is rule in subsequent cases. See, e.g., State v. Square, 468 So.d 673, 674 (La.App. 4 Cir. 985) (where no assignments of error filed, excessiveness of sentence not reviewed; limit review to errors patent and sufficiency of e evidence); State v. Duperon, 448 So.d 70, 75 (La.App. 5 Cir. 984) (while an objection to a sentence at e trial court is not needed to preserve e issue of excessiveness of sentence on appeal, a defendant still must make sentence excessiveness an assignment of error to preserve e issue on appeal); State v. Sonnier, 44 So.d 359 (La.App. 5 Cir. 983); State v. Smi, 450 So.d 735 (La.App. 5 Cir. 984). These decisions abide by e express language of La.C.Cr.P. 90, which states: The following matters and no oers shall be considered on appeal: () An error designated in e assignment of errors; and () An error at is discoverable by a mere inspection of e pleadings and proceedings and wiout inspection of e evidence. On appeal Donald Johnson filed a pro se brief in which he formally assigned as error only double jeopardy and ineffective assistance of counsel. Johnson s counsel also filed an appeal requesting an errors patent review by e Four Circuit. Excessiveness of sentence is not an error patent. State v. Duperon, 448 So.d 70, 75 (La.App. 5 Cir. 984). Since in his pro se brief Johnson did not assign as error excessiveness of his sentence, we hold at e Four Circuit improperly addressed e issue. In its opinion e Four Circuit appeared to act under e impression at State v. Dorey, supra, gave e court inherent power to address e issue of sentence excessiveness absent its assignment as error by e defendant. While Dorey recognized at a mandatory minimum sentence under e Habitual Offender Law may 4

5 be constitutionally excessive under Article I, Section 0 of e Louisiana Constitution, it did not address e procedures which a defendant must follow on appeal to have his sentence reviewed by an appellate court for excessiveness. Our statutory law, recognized in Cox, mandates at excessiveness may only be reviewed on appeal if assigned as error by e defendant. Since Donald Johnson did not assign excessiveness of his sentence as error to e Four Circuit, at court erred in addressing e issue. Thus, e portion of e Four Circuit s judgment which vacates Donald Johnson s sentence and remands it to e trial court for re-sentencing is vacated, and e statutory minimum sentence of twenty-six years and eight mons imposed by e trial court on Donald Johnson is reinstated. CONCLUSION Appellate courts are permitted to review sentences for excessiveness only when a defendant assigns as error e excessiveness of his sentence. Absent such an assignment, ough, an appellate court has no power to review sua sponte a sentence for excessiveness. DECREE For e reasons stated above, e part of e Four Circuit s judgment which vacates Donald Johnson s sentence and remands it to e trial court for resentencing is vacated. The statutory minimum sentence of twenty-six years and eight mons imposed by e trial court is reinstated. VACATED IN PART; AFFIRMED IN PART; SENTENCE REINSTATED 5