Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #057
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 19th day of October, 2016, are as follows:
BY CLARK, J.:
2015-OK-1233 STATE OF LOUISIANA v. SEAN HOLLOWAY (Parish of Lafayette)
Accordingly, we find that Art. 890.1, effective May 17, 2012,
applies by its plain language “upon conviction, in sentencing the
offender” and therefore that version of the article, rather than
the former article pertaining to designation of crimes of
violence, applied when Holloway was convicted and sentenced in
2014. Therefore, the ultimate judgment of the court of appeal,
which vacated the district court’s January 29, 2015 designation
of Holloway’s conviction as a crime of violence, is affirmed.
AFFIRMED.
JOHNSON, C.J., concurs.
CRICHTON, J., additionally concurs with reasons.
10/19/16
SUPREME COURT OF LOUISIANA
NO. 2015-OK-1233
STATE OF LOUISIANA
VERSUS
SEAN HOLLOWAY
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF LAFAYETTE
CLARK, J.
During the 2012 Regular Session, the sentencing provisions of La. C.Cr.P.
art. 890.1, relative to crimes of violence, were replaced with new provisions
addressing sentencing. After numerous delays, defendant Sean Holloway was
convicted and sentenced in 2014 for an offense committed in 2007. Thus, although
the offense occurred in 2007, prior to the legislative changes, the conviction and
sentencing occurred following the effective date of those changes. We granted
certiorari in this case to determine which version of La.C.Cr.P. art. 890.1 applies to
the defendant’s sentence – the version in effect at the time of the offense, or the
version in effect at the time of sentencing. State v. Holloway, 15-1233 (La.
6/3/16), 192 So. 3d 756. Based upon the language of the replacement article,
which plainly states that it applies “upon conviction, in sentencing the offender,”
we find that it is the revised version of La. C.Cr.P. art. 890.1, effective May 17,
2012, that applies to defendant’s 2014 conviction and sentence, rather than the
former version, in effect at the time of the offense. Therefore, we affirm the
decision of the court of appeal which vacated the designation of the defendant’s
conviction as a crime of violence.
FACTS AND PROCEDURAL HISTORY
On August 10, 2007, Holloway was the driver of a vehicle involved in a
collision in which his passenger, Shawn Lancon, was killed. Holloway had a blood
alcohol content of 0.051. He was charged by bill of information with vehicular
homicide1 and pleaded guilty on January 30, 2014, over six years after he
committed the offense. The district court sentenced him to four years
imprisonment at hard labor, three of which were to be served without benefit of
parole, probation, or suspension of sentence, and an additional year to be served in
home incarceration.
1
In 2007, La.R.S. 14:32.1 defined vehicular homicide as:
A. Vehicular homicide is the killing of a human being caused proximately or
caused directly by an offender engaged in the operation of, or in actual physical
control of, any motor vehicle, aircraft, watercraft, or other means of conveyance,
whether or not the offender had the intent to cause death or great bodily harm,
whenever any of the following conditions exists:
(1) The operator is under the influence of alcoholic beverages as determined by
chemical tests administered under the provisions of R.S. 32:662. . . .
La.R.S. 32:662(A) provided at that time:
(1) Upon the trial of any criminal action or proceeding arising out of acts alleged
to have been committed by any person while driving or in actual physical control
of a vehicle while under the influence of alcoholic beverages the amount of
alcohol in the person's blood at the time alleged as shown by chemical analysis of
the person's blood, urine, breath, or other bodily substance shall give rise to the
following presumptions:
...
(b) Except as provided in Subparagraph (d), if the person had a blood alcohol
concentration at that time in excess of 0.05 percent but less than 0.08 percent by
weight, such fact shall not give rise to any presumption that the person was or was
not under the influence of alcoholic beverages, but such fact may be considered
with other competent evidence in determining whether the person was under the
influence of alcoholic beverages.
...
(d) If the person was under the age of twenty-one years at the time of the test and
had a blood alcohol concentration at that time of 0.02 percent or more by weight,
it shall be presumed that the person was under the influence of alcoholic
beverages. . . .
Holloway was 19 years old at the time of the offense.
2
On January 23, 2015, over eight months after Holloway was sentenced, the
state filed what it captioned as a motion to clarify sentence. As a clarification, the
state asked that the district court designate the offense as a crime of violence
pursuant to former La.C.Cr.P. art. 890.1 in effect at the time of the offense in 2007
but repealed and replaced with a new version of the article, effective May 17,
2012, which no longer pertained to the designation of crimes of violence. The
district court initially noted that, at the time Holloway was originally sentenced,
Art. 890.1 did not authorize the court to make that designation, and further opined
that whether the offense is treated by the Department of Public Safety &
Corrections as a crime of violence is a matter to be determined by the Department.
The state, however, argued that Art. 890.1 in effect at the time of the offense must
be applied, and further, in light of State v. Oliphant, 12-1176 (La. 3/19/13), 113
So.3d 165, the district court should designate the offense as a crime of violence.
The district court ultimately acceded to the state’s request, at least to the extent of
clarifying that in the district court’s view, under Oliphant, Holloway committed a
crime of violence that would be treated as such as a matter of law without further
intervention by the court.
The court of appeal granted writs to vacate the district court’s ruling. The
court of appeal agreed with the state that Art. 890.1 in effect at the time Holloway
committed the offense applied at his sentencing (when it was no longer in effect).
However, the court of appeal also found that, because Oliphant was decided after
the offense was committed, there was no legal basis for the district court to
designate the offense as a crime of violence. State v. Holloway, 15-0227 (La. App.
3 Cir. 5/28/15) (unpub’d) (“At the time the offense was committed [Art. 890.1]
required the trial court to designate whether vehicular homicide was a crime of
violence. However, there was no support for such a determination in the law or
3
jurisprudence at that time.”). The state filed a writ application seeking a review of
the court of appeal’s judgment.
DISCUSSION
We find the court of appeal erred in determining that the version of Art.
890.1 in effect at the time of the offense in 2007 applied at the time of sentencing
in 2014 after it had been replaced in 2012.2 In 2007, Art. 890.1 provided,
pertaining to the designation of crimes of violence:
A. When the court imposes a sentence, the court shall designate
whether the crime involved is a crime of violence or an attempted
crime of violence as defined or enumerated in R.S. 14:2(B).
B. Notwithstanding any provision of law to the contrary, if a person is
convicted of or pleads guilty to a crime of violence as defined or
enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a
stated number of years or months, the sentencing court may deny or
place conditions on eligibility for diminution of sentence for good
behavior unless diminution of sentence is prohibited by R.S.
15:571.3(C) or (D).
1997 La. Acts 697. By the time Holloway was sentenced in 2014, Art. 890.1 had
been replaced with the following article, pertaining to the waiver of minimum
mandatory sentences:
A. Notwithstanding any other provision of law to the contrary, if a
felony or misdemeanor offense specifies a sentence with a minimum
2
We note that the district court did not, at the time of sentencing, find that the offense committed
by Holloway constituted a crime of violence. The district court imposed a sentence within the
range provided in the penalty provision. The state did not object to or appeal the sentence and did
not seek to appeal it. There is no mechanism provided in the Code of Criminal Procedure by
which the state can, more than eight months after a sentence that is legal in all respects is
imposed and made executory, return to the district court to seek what is essentially a
modification of the sentence. See La.C.Cr.P. arts. 881, 881.2, 881.5, 882; see also State v.
Gedric, 99-1213 (La. App. 1 Cir. 6/3/99), 741 So.2d 849, writ denied, State ex rel. Gedric v.
State, 99-1830, 751 So.2d 239. As a result, the state’s motion for clarification, which was in
effect a motion to modify a legal sentence, brought after commencement of execution of
sentence, should have been denied by the district court. See Smith v. Cajun Insulation, 392
So.2d 398, 402 n.2 (La. 1980) (“[C]ourts should look through the caption of pleadings in order to
ascertain their substance and to do substantial justice.”). The court of appeal’s decision to vacate
the district court’s ruling was, therefore, ultimately correct. However, the court’s stated reason
for vacating that ruling – its finding that the version of La. C.Cr.P. art. 890.1 in effect at the time
of the offense applied, rather the version in effect at the time of sentencing, was the finding
which prompted this court’s grant of certiorari, and which necessitated the following discussion
and clarification of the applicable law.
4
term of confinement or a minimum fine, or that the sentence shall be
served without benefit of parole, probation, or suspension of sentence,
the court, upon conviction, in sentencing the offender shall impose the
sentence as provided in the penalty provisions for that offense, unless
one of the following occurs:
(1) The defendant pled guilty pursuant to a negotiated plea agreement
with the prosecution and the court, which specifies that the sentence
shall be served with benefit of parole, probation, or suspension of
sentence or specifies a reduced fine or term of confinement.
(2) In cases resulting in trial, the prosecution, the defendant, and the
court entered into a post-conviction agreement, which specifies that
the sentence shall be served with benefit of parole, probation, or
suspension of sentence or specifies a reduced fine or term of
confinement.
B. If such agreements are entered into between the prosecution and
the defendant, the court, at sentencing, shall not impose a lesser term
of imprisonment, lesser fine, or lesser period of sentence served
without benefit of parole, probation, or suspension of sentence than
that expressly provided for under the terms of the plea or post-
conviction agreement.
C. No plea or post-conviction agreement shall provide parole
eligibility at a time earlier than that provided in R.S. 15:574.4.
D. Nothing in this Article shall apply to a crime of violence as defined
in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541.
E. At the time the sentence is imposed pursuant to this Article, the
Uniform Commitment Sentencing Order shall specify that the
sentence is imposed pursuant to the provisions of this Article.
2012 La. Acts 160 (eff. May 17, 2012). After May 17, 2012, although La.R.S.
14:2(B) still provided a general definition of “crime of violence,” no provision of
law directed the district courts to designate offenses as crimes of violence at
sentencing.3
3
La.R.S. 14:2(B) defines a crime of violence as “an offense that has, as an element, the use,
attempted use, or threatened use of physical force against the person or property of another, and
that, by its very nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense or an offense that
involves the possession or use of a dangerous weapon.” That provision also enumerates several
crimes of violence. This court previously noted in State v. Allen, 99-2898 (La. 6/16/00), 762
So.2d 615 (per curiam), for those crimes of violence specifically enumerated in R.S. 14:2(B), the
Department of Public Safety & Corrections would compute a prisoner’s eligibility for parole or
good time release at 85% of the full term date without regard to whether the trial court
designated the offense as a crime of violence. With respect to those crimes not enumerated in
5
This Court has generally held that the law in effect at the time of the offense
dictates the penalty a defendant faces at time of his conviction. See, e.g., State v.
Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518; State v. Wright, 384 So. 2d 399
(La. 1980). Applying the version of the law in effect on the date of the commission
of the offense ordinarily avoids violating ex post facto prohibitions in the federal
and state constitutions. Both the state and the court of appeal cite Massey v.
Louisiana Dept. of Public Safety & Corrections, 13-2789 (La. 10/15/14), 149
So.3d 780, to support the view that the trial court should have applied the version
of Art. 890.1 in effect at the time of the offense.
However, Massey differed in a key regard. Namely, it involved a 2006
amendment to La.R.S. 15:571.3 that “significantly narrowed the class of inmates
qualified to receive good time credits,” i.e. credits earned from good behavior,
R.S. 14:2(B) but otherwise falling under the general definition of a crime of violence, however,
the Department would defer to the trial court. Thus, “[i]n such a case, the [Department] properly
does not make the legal determination of whether the crime falls under the statutory definition of
crime of violence, because the [Department] is without authority to determine which
unenumerated crimes are crimes of violence. The [Department] depends upon the designation
that Article 890.1A requires the trial judge to make.” Allen, 99-2898 at 2–3, 762 at 616–17. The
effect of the 2012 replacement of former Art. 890.1 on this system of enumerated and
unenumerated crimes of violence was unknown, and the issue was never presented to this court
for consideration.
In the recent regular legislative session, the legislature reestablished the requirement that district
courts designate crimes of violence, albeit in a substantially altered form. New Article 890.3
authorizes the district courts to designate crimes of violence in the minutes. However, the court
may (not shall) do so, upon written recommendation of the district attorney, when the offense is
defined or enumerated as a crime of violence in R.S. 14:2(B), and only for the following limited
purposes:
(1) To determine a defendant's eligibility for suspension or deferral of sentence
pursuant to Code of Criminal Procedure Article 893.
(2) To determine a defendant's eligibility for participation in a drug division
probation program pursuant to R.S. 13:5304.
La.C.Cr.P. art. 890.3(A). In addition, under the new article, the court shall designate certain
enumerated offenses as violent crimes. See La.C.Cr.P. art. 890.3(B). However, this violent crime
designation, which contains no limitation on purpose, has been unwed from the entire
enumerated list of offenses in 14:2(B) and instead now applies to a narrower list of enumerated
offenses. At present, this latter directive applies to 27 of the 46 crimes of violence enumerated in
La.R.S. 14:2(B).
6
work, and self-improvement activities which accrued toward an inmate’s early
release. Massey, 13-2798, p. 1, 149 So.3d at 781. Massey committed his offenses
in 1994. His victims, however, did not report his crimes until 2004, and a jury did
not convict him until 2007. In 2011, he was informed by the Department that he
had accrued good time credits through an oversight. “Because the rescission of
good time eligibility creates a significant risk of prolonging his incarceration and
increases the severity of Massey's sentence by altering the terms and conditions
under which he must serve his penalty,” this court found that the “application of
the amended law would violate the ex post facto clauses of the United States and
Louisiana Constitutions.” Id. Thus, “[a]pplying the law in effect at the time the
offenses were committed,” the court found “Massey is eligible to receive good
time credits and is entitled to have his time recomputed under the statute before it
was amended.” Id., 13-2789, p. 1, 149 So.3d at 781–82.
Conversely, in this matter, applying Art. 890.1 in effect at the time of
sentencing rather than the article in effect at the time of the offense violates no ex
post facto prohibitions. A law which “does not punish as a crime an act previously
committed, which was innocent when done; nor make more burdensome the
punishment for a crime, after its commission; nor deprive one charged with crime
of any defense available according to law at the time when the act was committed”
survives an ex post facto analysis. Collins v. Youngblood, 497 U.S. 37, 52, 110 S.
Ct. 2715, 2724, 111 L. Ed. 2d 30 (1990). This court similarly observed that the
linchpin inquiry in determining whether a statute violates the state Ex Post Facto
Clause is “whether the change alters the definition of criminal conduct or increases
the penalty.” State ex rel. Olivieri v. State, 00-0172, p. 15 (La. 2/21/01), 779 So.2d
735, 744. Not applying the prior version of Art. 890.1 does not make the
punishment more burdensome here and therefore the Ex Post Facto Clauses of the
7
state and federal constitutions are not implicated. Instead, the application of the
newer article could potentially result in defendant being eligible for parole earlier,
and in that regard the 2012 replacement of Art. 890.1 could be characterized as an
ameliorative change to the law.
This Court examined the application of ameliorative statutory amendments
in State v. Mayeaux, 01-3195 (La. 6/21/02), 820 So.2d 526, where “the amended
version of La. R.S. 14:983 . . . [retained] the sentencing ranges provided for third
and fourth DWI offenders, [but] radically changed the way in which the offender
serves the sentence imposed by the court.” Id., 01-3195, pp. 3–4, 820 So.2d at
528. In that case, as is the case here, the statute was amended between the date of
the offense and the defendant’s conviction and sentencing. This Court found that
the ameliorative change to La.R.S. 14:98 applied at sentencing for three reasons:
First, the statute plainly states that “upon conviction,” and not “upon
committing the offense,” the defendant shall be sentenced to a specific
term. Thus, the specific language in LSA–R.S. 14:98 provides the
time at which the penalty provisions are applicable.
Second, as previously noted, the amended version of the statute
contains a specific statement of legislative purpose, as follows:
The legislature hereby finds and declares that conviction
of a third or subsequent DWI offense is presumptive
evidence of the existence of a substance abuse disorder in
the offender posing a serious threat to the health and
safety of the public. Further the legislature finds that
there are successful treatment methods available for
treatment of addictive disorders.
LSA–R.S. 14:98(G). Thus, the legislature has clearly stated its
intention to embrace treatment measures in preference to
incarceration. Applying the more lenient sentencing requirements of
the amended statute to someone convicted after the enactment of the
legislation, despite the commission of the offense prior to the
enactment, would further this legislatively stated purpose. This clearly
stated legislative purpose is one which this court cannot ignore.
Finally, language in the amending legislation grants potential relief to
those already convicted by providing that “[n]othing contained in this
Act shall be construed to limit the authority of the Department of
8
Public Safety and Corrections in recommending those persons
incarcerated on or before August 15, 2001, to participate in home
incarceration in accordance with Code of Criminal Procedure Article
894.2.” 2001 La. Acts No. 1163, § 4. It would be incongruous to
extend the opportunity for home incarceration, and treatment, to those
already convicted but to withhold that opportunity from those who
were charged but not convicted prior to August 15, 2001, the effective
date of the amendments.
Mayeux, 01-3195, pp. 5–6, 820 So.2d at 529–30.
Similarly, in this case, Art. 890.1 as amended in 2012 expressly applied
“upon conviction, in sentencing the offender.” In State v. Kondylis, 14-0196 (La.
10/3/14), 149 So. 3d 1210, this court remanded to the district court to determine
whether the parties correctly followed the prescriptions of the 2012 version of Art.
890.1 when departing from the mandatory minimum sentence. Kondylis involved
an offense (distribution of cocaine) that preceded the 2012 enactment and a
conviction and sentencing date after the new Art. 890.1 became effective. Implicit
in that order is the finding that the relevant date for purposes of the application of
Art. 890.1 as amended in 2012 is the date of conviction rather than the date of the
offense.
Although the legislature has not articulated a strong policy statement in the
text of the statute, as was the case in Mayeux, there is an indication the legislature
did not intend for an offender like Holloway to be treated as having committed a
crime of violence. Following the Oliphant decision, and eight days after Holloway
was sentenced, the legislature amended the enumerated list of offenses in La.R.S.
14:2(B) to include vehicular homicide, but only when “the operator's BAC exceeds
0.20 percent by weight based on grams of alcohol per one hundred cubic
centimeters of blood.” La.R.S. 14:2(B)(46). As noted above, Holloway registered a
BAC of 0.051 percent.
9
Finally, although the state contends the district court was authorized to
designate the offense a crime of violence under former Art. 890.1, it should be
emphasized that the district court has now twice declined to do so. The district
court did not designate the offense a crime of violence when Holloway was
sentenced (see n.2). Furthermore, a fair reading of the transcript of the hearing
held in response to the state’s motion to clarify the sentence indicates that the court
still did not make that determination. Instead, the district court simply opined that
under Oliphant the offense would automatically be treated as such.
Therefore, while the court of appeal correctly vacated the district court’s
ruling insofar as it suggested that the law would automatically treat defendant’s
offense as a crime of violence, it erred in doing so on grounds that the version of
Art. 890.1 in effect at the time of the offense, rather than the version of Art. 890.1
in effect at the time of sentencing, applied.
DECREE
Accordingly, we find that Art. 890.1, effective May 17, 2012, applies by its
plain language “upon conviction, in sentencing the offender” and therefore that
version of the article, rather than the former article pertaining to designation of
crimes of violence, applied when Holloway was convicted and sentenced in 2014.
Therefore, the ultimate judgment of the court of appeal, which vacated the district
court’s January 29, 2015 designation of Holloway’s conviction as a crime of
violence, is affirmed.
AFFIRMED
10
10/19/16
SUPREME COURT OF LOUISIANA
No. 2015-OK-1233
STATE OF LOUISIANA
VERSUS
SEAN HOLLOWAY
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF LAFAYETTE
JOHNSON, C.J., concurs.
1
10/19/16
SUPREME COURT OF LOUISIANA
No. 2015-OK-1233
STATE OF LOUISIANA
VERSUS
SEAN HOLLOWAY
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF LAFAYETTE
CRICHTON, J., additionally concurs and assigns reasons. I agree with
the majority that the version of La. C.Cr.P. art. 890.1 in effect at the time of
sentencing applies in this case, and the court of appeal erred in finding otherwise. I
write separately to address this Court’s opinion in State v. Oliphant, 12-1176 (La.
3/19/13), 113 So. 3d 165. Specifically, I agree with the court of appeal insofar as it
ruled that Oliphant itself should not be applied retroactively, to the extent that
Oliphant’s ruling could be interpreted as re-categorizing vehicular homicide as a
“crime of violence,” therefore precluding vehicular homicide offenders from being
treated under the less onerous good time and parole provisions of R.S. 15:571.3 or
R.S. 15:574.4. To apply this jurisprudential designation retroactively would, in my
view, violate the state and federal Ex Post Facto Clauses. See U.S. Const. art. I, §
9-10 and La. Const. art. I, § 2