State Of Louisiana Versus

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #024
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of July, 2020 are as follows:
BY Boddie, J.:
2018-KH-01012 STATE OF LOUISIANA VS. DERRICK L. HARRIS (Parish of
Vermilion)
We granted this writ to consider whether relator Derrick Harris, who is
serving a life sentence imposed pursuant to the Habitual Offender law, may
litigate a claim of ineffective assistance of counsel at sentencing on post-
conviction review. Given the fundamental right involved, after a review of
the record, we hold relator’s ineffective assistance of couns el at sentencing
claim is cognizable on collateral review. Thus, we grant relator’s writ, in
part, and remand
the matter to the trial court for an evidentiary hearing to
consider his claim of ineffective assistance of counsel at sentencing.
Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for
Justice Clark.
Johnson, C.J., concurs for the reasons assigned by Crichton, J.
Weimer, J., concurs and assigns reasons.
Crichton, J., concurs with the result and assigns reasons.
Genovese, J., concurs with the result for the reasons assigned by Crichton,
J.
Crain, J., dissents and assigns reasons.

_________________________

*Retired Judge James Boddie, Jr., appointed as Justice ad hoc, sitting for Justice Clark.
07/09/20
SUPREME COURT OF LOUISIANA
No. 2018-KH-1012
STATE OF LOUISIANA
VERSUS
DERRICK L. HARRIS
ON SUPERVISORY WRIT TO THE FIFTEENTH JUDICIAL DISTRICT
COURT, PARISH OF VERMILION
B
ODDIE, J., Justice ad hoc*
We granted this writ to consider whether relator Derrick Harris, who is serving
a life sentence imposed pursuant to the Habitual Offender law1, may litigate a claim
of ineffective assistance of counsel at sentencing on post-conviction review. Given
the fundamental right involved, after a review of the record, we hold relator’s
ineffective assistance of counsel at sentencing claim is cognizable on collateral
review. Thus, we grant relator’s writ, in part, and remand the matter to the trial court
for an evidentiary hearing to consider his claim of ineffective assistance of counsel
at sentencing.
FACTS AND PROCEDURAL HISTORY
On October 2, 2008, an undercover officer working with the Vermilion Parish
Sheriff’s Office located an individual on a street in Abbeville and inquired where he
could purchase marijuana. The individual brought the officer to a residence where
the officer purchased .69 grams of marijuana for thirty dollars. The officer identified
1 See La. R.S. 15:529.1(A)(4)(b).

2

relator as the individual who sold him the marijuana. Based on this transaction, the
state charged relator with distribution of marijuana. After a bench trial, he was
convicted and sentenced to fifteen years imprisonment at hard labor. Trial counsel
filed a motion to reconsider sentence, which the court denied. However, after the
state filed a habitual offender bill, the court adjudicated relator a fourth -felony
offender2 and resentenced him on November 15, 2012, to the mandated term of life
imprisonment without benefits.
Relator’s trial counsel did not object to the life sentence nor did he file a
motion to reconsider sentence following the habitual offender adjudication, and thus
relator was limited to a bare claim of constitutional excessiveness on appeal. See
La. C.Cr.P. ar t. 881.1 (E). Citing extensively to State v. Johnson , 97 -1906 (La.
3/4/98), 709 So.2d 672, the court of appeal concluded that although relator is an
extremely minor offender with regards to his present crime, his life sentence is not
constitutionally excessive because he committed numerous predicate felonies. The
court found the state proved that relator’s conduct fell within the conditions
necessary to trigger a mandatory life sentence under the Habitual Offender law.
State v. Harris, 13-0133, pp. 7-8 (La. App. 3 Cir. 12/11/13), 156 So.3d 694, 700-01.
(Cooks, J., dissents).
Also on direct review, relator argued in a pro- se brief that both his trial and
appellate counsel rendered ineffective assistance. Id., 13-0133, p. 5, 156 So.3d at
699. Although he did not raise an ineffective assistance claim related to the failure
to object to the life sentence or file a motion to reconsider sentence, relator did argue
that trial counsel had failed to adequately conduct pre -trial discovery and

2 Relator’s prior felony convictions included: (1) distribution of cocaine; (2) simple burglary; (3)
theft with a value betwe en three and five hundred dollars; (4) two counts of simple robbery; and
(5) distribution of marijuana.

3

investigation, and that police officers could have been called to narrate the DVD that
had captured the alleged drug transaction, as no audio was available. See id. , 13-
0133, p. 5, 156 So.3d at 699. As to appellate counsel, relator claimed that his
attorney should have raised the Confrontation Clause argument that relator was
raising in proper person. Id. The court of appeal declined to consider relator’s claim
and instead relegated it to post -conviction relief, as is done with most ineffective
assistance claims, given that the adequacy of pre -trial discovery and decisions of
representation regarding the calling of witnesses and lodging of arguments may
require the testimony of those involved. See id., 13-0133, p. 6, 156 So.3d at 700.
Judge Cooks dissente d, finding the trial court had erred by imposing a life
sentence on relator, who had honorably served his country in Desert Storm and, after
returning from service, had suffered from a drug addiction for which he had been
unable to receive assistance from the U.S. Veterans’ Administration. While
acknowledging that relator met the criteria requiring a life sentence under the
habitual offender statute, she opined that he was not the type of individual the
legislature had envisioned sending to prison for the remainder of his life when it had
enacted La. R.S. 15:529.1(A)(4)(b). Judge Cooks noted it was clear from the record
that the trial judge had been unaware of his authority and duty to deviate from the
mandatory sentence if the court found justification for reducing the sentence. Judge
Cooks also noted the habitual offender transcript reflected the trial judge’s opinion
that relator did not deserve a 30-year sentence for selling .69 grams of marijuana, let
alone a life sentence as a habitual offender. She argued a remand was in order for
further proceedings to evaluate the evidence presented at the sentencing hearing that
supported a downward departure from the mandatory sentence. Id. , 13-0133, 156
So.3d at 703-05 (Cooks, J., dissenting).

4

The court of ap peal denied rehearing on January 22, 2014. Relator’s pro- se
application seeking review of the court of appeal’s affirmance was filed on February
27, 2014, six days too late in this Court. Notably, if it had been filed six days too
late now, the application would have been treated as timely because the Court now
affords pro-se prisoner litigants a 10- day grace period in an effort to honor the
“mailbox rule” of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L. Ed. 2d 245
(1988). In 2014, however, the Court treated late pro se applications on direct review
as “untimely KOs.” Under the “untimely KO” procedure, a late application, rather
than being denied, was considered as if it were an application for post-conviction
relief (albeit one that had bypassed the lower courts), which afforded late pro- se
filers a limited form of review. See State v. Jacobs, 504 So. 2d 817, 818 n.1 (La.
1987). However, because in this case the sentencing claims raised by relator were
not cognizable on collateral review, they were not addressed, and this Court denied
his writ application sub nom. State ex rel. Harris v. State , 14-0476 (La. 11/7/14),
152 So.3d 169 (Hughes, J., would grant).
Relator then timely filed an application for post-conviction relief in the district
court, raising two claims. Claim I alleged trial counsel was ineffective for failing to:
present an entrapment defense, inform relator of a seven-year plea offer, and file a
motion to reconsider sentence. Claim II alleged the sentencing court was unaware
of its authority to deviate below the mandatory life sentence required by the Habitual
Offender law when such sentence would be constitutionally excessive.
On March 3, 2016, the district court
3 rendered judgment denying Claim II,
regarding the trial court’s sentencing error. The district court noted that, generally,
courts have held that challenges to a multiple offender adjudication cannot be heard

3 Judge Laurie Huelin of the Fifteenth Judicial District Court ruled on relator’s application for
post-conviction relief. Judge Durwood Conque, who had tried and sentenced relator, retired
before the application was filed.

5

on post-conviction relief, citing State v. Hebreard, 98-385 (La. App. 4 Cir. 3/25/98,
708 So. 2d 1291; State v. Daniels, 00-3369 (La. 11/2/01), 800 So. 2d 770; State v.
ex rel. Brown v. State, 03-2568 (La. 3/26/04), 870 So. 2d 976; and State v. Shepard,
05-1096 (La. 12/16/05), 917 So. 2d 1086. The district court also ordered an
evidentiary hearing on the ineffective assistance of counsel claims. (Claim I).
The evidentiary hearing was held on February 10, 2017. The district court
first considered whether counsel had erred by failing to convey a plea offer, based
on a seven-year plea offer noted in counsel’s file, which was signed by the assistant
district attorney, but which relator contended had never been conveyed to him.
Relator testified that he remembered having received a 10-year plea offer which was
later followed by a 20 -year plea offer. Relator also t estified that his memory was
faulty due to past abuse of crack cocaine, but he was sure he would have remembered
a seven -year offer. The court found that his “selective memory challenges his
credibility and ability to accurately recall past events[,]” see tr. ct. ruling, and that
his self-serving testimony was insufficient to carry his burden of proof.
The district court then considered whether counsel had erred by failing to
argue an entrapment defense. The court noted that relator failed to produce any new
evidence at the hearing concerning this issue and therefore failed to establish that his
counsel had not exercised reasonable professional judgment. The court further noted
that relator failed to show he had been deprived of a fair trial as required by
Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 674 (1984).
Therefore, he failed to carry his burden of proof.
Lastly, the district court addressed whether relator’s counsel was ineffective
for failing to file a motion to reconsider sentence. Noting that the courts have
generally held that challenges to a habitual offender adjudication cannot be heard
post conviction, and that the defendant had failed to produce any new evidence

6

concerning this issue, the court declined to consider it. The district court rendered a
judgment with written reasons on March 3, 2017, denying relator’s application for
post-conviction relief.
Relator then sought writs in the court of appeal. The court of appeal noted
that defendant did not contest the tria l court’s ruling but rather argued a claim of
ineffective assistance of counsel at the February 10, 2017 4 evidentiary hearing on
relator’s application for post -conviction relief. Because this issue had not been
presented to or ruled upon by the trial cour t, the court of appeal observed that the
issue was not properly before it, citing to Uniform Rules—Courts of Appeal, Rule
1-3. State v. Harris, 17-0545 (La. App. 3 Cir. 4/24/18) (unpub’d).
5
Relator subsequently sought writs to this Court, wherein he asserts his
underlying claims that his counsel was ineffective for failing to: inform him of a
seven-year plea offer, raise an entrapment defense, and file a motion to reconsider
sentence after the court had imposed the life sentence. He also claims he was denied
due process because the trial judge who sentenced him was unaware that he had the
authority to deviate below the statutorily mandated sentence of life imprisonment.
Additionally, relator claims the court of appeal erred when it found that he did not
contest the ruling of the district court, arguing that he inadvertently asked the
appellate court to vacate the judgment of the third circuit when it was apparent that
he was, in fact, seeking review of the district court’s ruling. Lastly, relator claims
post-conviction counsel erred at the evidentiary hearing by failing to call trial
counsel to testify regarding the plea offer and defense strategies.

4 The court of appeal judgment erroneously states February 4, 2017 as the date of the evidentiary
hearing.

5 However, the appellate court construed the application too rigorously. See State ex rel. Johnson
v. Maggio, 440 So.2d 1336, 1337 (La. 1983) (a pro-se petitioner “is not to be denied access to the
courts for review of his case on the merits by an overzealous application of form and pleading
requirements or hyper-technical interpretations of court rules.”).

7

In response, the state argues that it is irrelevant whether defense counsel
rendered ineffective assistance by failing to convey a 7-year plea deal because relator
fails to show that the state would have also foregone recidivist sentence enhancement
as part of that deal. As for relator’s claim pertaining to ineffective assistance of
counsel and excessiveness of sentence, the s tate argues this claim is barred from
collateral review pursuant to State ex rel. Melinie v. State, 93-1380 (La. 1/12/96),
665 So. 2d 1172 and La.C.Cr. P. art. 930.4(A)6. The s tate characterizes Melinie as
“definitive” and argues that any change to it should be done legislatively.
Counsel with the Promise of Justice Initiative (“PJI”) enrolled to represent
relator pro bono and filed a reply brief. He co ntends that relator’s life sentence for
selling less than a gram of marijuana shocks the conscience, is excessive , and the
result of ineffective assistance of trial counsel. He argues that Melinie, to the extent
it holds a claim of ineffective assistance of counsel at sentencing is not cognizable
on collateral review, precludes any remedy for a substantial number of Sixth and
Fourteenth Amendment violations, even though a defendant has a constitutional
right to the effective assistance of counsel at sentencing. He also asserts that direct
review is ill suited to address most claims of ineffective assistance, particularly those
involving sentencing, as those claims are not amenable to being decided based solely
on the trial record, nor does direct review promote fairness or efficiency. Lastly,
counsel contends relator’s sentence should be vacated as constitutionally excessive,
or, at the minimum, his claim of ineffective assistance of trial counsel at sentencing
should receive meaningful review.

6 La.C.Cr.Pr. art. 930.4(A) provides:

Unless required in the interest of justice, any claim for relief which was
fully litigated in an appeal from the proceedings leading to the judgment
of conviction and sentence shall not be considered.

8

We granted relator’s writ application 7, ordered briefs 8 and docketed the
matter for arguments. We now consider whether his claim of ineffective assistance
of counsel relating to his sentencing is cognizable on post- conviction review,
notwithstanding State ex rel. Me linie v. State , 93 -1380 (La. 1/12/96), 665 So.2d
1172.
LAW AND DISCUSSION

In 1976, an ad hoc committee was appointed by the Louisiana Supreme Court
to study habeas corpus in Louisiana. Cheney C. Joseph, Jr., Developments in the
Law: Postconviction Relie f, 41 La.L.Rev 632 (1981). The post -conviction reform
measures undertaken pursuant to 1976 La. Acts 448 and 1980 La. Acts 429 were
aimed at streamlining Louisiana’s former habeas procedure by easing the burden of
repetitive applications, unnecessary hearin gs, and administrative difficulties. State
ex rel. Glover v. State, 93-2330, pp. 9-10, 660 So.2d 1189, 1195. “As a result of the
ad hoc committee’s study, legislation was adopted to curb repetitive writs and to
authorize the supreme court to promulgate rules providing for an alternative method
of handling the disposition of writ applications for persons subsequent to
conviction.” Cheney, supra. Act 448 amended La.C.Cr.P. art. 359 to authorize the
Supreme Court of Louisiana to adopt rules relative to applica tions by convicted
persons in custody. Cheney, supra, at n. 36.
While the original intent was to address concerns related to repetitive
applications, unnecessary hearings, and administrative difficulties surrounding
production of prisoners, nothing in the legislative record indicates that the committee
intended to reduce the original criteria for post -conviction relief enumerated in

7 State v. Harris, 2018-1012 (La. 10/8/19), ___ So. 3d ___ , 2019 WL 5386321.

8 In addition to the defense and state briefs, the Court had the benefit of amicus briefs from the
Louisiana Public Defender Board, the Louisiana District Attorneys Association, and the
Louisiana Center for Children’s Rights.

9

La.C.Cr.P. art. 362. The original La.C.Cr.P. art. 362(9) provided relief from lack of
due process situations.9 As noted in La.C.Cr.P. art. 362(9), this provision was added
to the overall article because “[s]tate habeas corpus should provide relief from lack
of due process situations. If this is done adequately, federal intervention under 28
U.S.C. 2254 will be reduced considerably.” See La.C.Cr.P. art. 362 (1967) (official
revision comment (i)(4)). Further, “[i]t is impossible to draft an article which in
detail covers all due process situations. Therefore, reliance must be placed upon the
use of the ‘due process’ phrases as suc h.” Id. Although La.C.Cr.P. art. 362(9)
provided relief if “[h]e was convicted without due process of law” (and does not
mention sentencing), the illustrative list of examples does include claims involving
sentencing errors, including claims of ineffective assistance of counsel at
sentencing.
10 In one example concerning “[l]ack of counsel, denial of counsel, and
incompetent counsel,” the comment cited to United States ex rel. Marcial v. Fay ,
267 F.2d 507 (2d Cir. 1959). See La.C.Cr.P. art. 362 (1 967) (official revision
comment (i)(3)). Fay involved a petition for habeas corpus wherein the United States
Second Circuit held that the evidence failed to establish that the absence of counsel
when the sentence was imposed violated the requirements of du e process. More
specifically, his petition had attacked the validity of his habitual offender sentence
and requested that he be resentenced as a first offender, as his first conviction was
without due process of law. Fay, 267 F.2d at 508. Another example listed United
States ex rel. Sheffield v. Waller, 126 F. Supp. 537 (E.D. La. 1954), affirmed 224

9 The 1980 amendment deleted grounds which relate exclusively to post -conviction challenges,
which are now found in La.C.Cr.P. art . 930.3. 1980 La. Acts 429 deleted former paragraph (9)
which had read “[h]e was convicted without due process of law” while adding a new paragraph
relating to holding prior to trial in violation of due process. See La.C.Cr.P. art. 362 pertaining to
custody with court order, official revision comment-1980 and historical and statutory notes.

10Although the comment had noted that in most of the cases cited relief was denied because the
applicant failed to support the facts alleged, it also stated that it is clear that if the applicant had,
the courts would have granted habeas corpus.

10

F.2d 280 (5th Cir. 1955), cert. denied, 350 U.S. 922, 76 S.Ct. 217, 100 L.Ed. 807
(1955) based on “‘[a] totality of events’ including undue haste in prosecuting, failure
of counsel to make proper objections or to reserve any bills of exception, failure to
appeal a death sentence (and many other events) adding up to a denial of due
process.” La.C.Cr.P. art. 362 (1967) (official revision comment (i)(3)).
The legi slature enacted the post -conviction code articles in 1980, see
La.C.Cr.P. art. 924, et seq., and set forth the limited grounds for relief that may be
urged in an application for post-conviction relief. See La.C.Cr.P. art. 930.3.
11
Louisiana statutory law now distinguishes post-conviction relief from habeas corpus
relief. See La.C.Cr.P. art. 351; State ex rel. Glover v. State, 93-2330, p. 9, 660 So.2d
at 1195. “[P]ost conviction relief, which is procedural in nature, and speaks to
matters of remedy, is not cr iminal litigation per se; rather, post conviction relief
proceedings, which are designed to allow petitioners to challenge the legality of their
confinement, are hybrid, unique, and have both criminal and civil legal

11 La.C.Cr.P. art. 930.3 provides:

If the petitioner is in custody after sentence for conviction for an offense, relief shall
be granted only on the following grounds:

(1) The conviction was obtained in violation of the constitution of the United States
or the state of Louisiana;

(2) The court exceeded its jurisdiction;

(3) The conviction or sentence subjected him to double jeopardy;

(4) The limitations on the institution of prosecution had expired;

(5) The statute creating the offense for which he was convicted and sentenced is
unconstitutional; or

(6) The conviction or sentence constitute the ex post facto application of law in
violation of the constitution of the United States or the state of Louisiana.

(7) The results of DNA testing performed pursuant to an application granted under
Article 926.1 proves by clear and convincing evidence that the petitioner is
factually innocent of the crime for which he was convicted.

11

characteristics.” Id., 93-2330, p. 12, 660 So.2d at 1197. “The former post-conviction
habeas corpus was, and the PCR petition is, a collateral action to test the detention
of a criminal defendant after his sentence and conviction have become final.”
Harrison v. Norris, 569 So.2d 585, 590 (La. A pp. 2 Cir. 10/31/90) (citing to
La.C.Cr.P. arts. 924-930.7 and Revision Comments).
Furthermore, “[t]hese post-conviction relief rules are modeled on the
American Bar Association Standards for Post -Conviction Remedies and the
proposed (since modified and adopted) federal rules governing post -conviction
applications by state prosecutors under 28 U.S.C. § 2254.” See State ex rel. Tassin
v. Whitley, 602 So.2d 721, 723 (La. 7/10/92); Cheney C. Joseph, Jr., Developments
in the Law: Postconviction Relief, 41 La.L.Rev 632 (1981). The ABA standards for
post-conviction remedies state:
A postconviction proceeding should be sufficiently broad to provide
relief:

(a) for meritorious claims challenging judgments of conviction and
sentence, including cognizable claims:

(i) that the conviction was obtained or sentence
imposed in violation of the Constitution of the
United States or the constitution or laws of the state
in which the judgment was rendered;

(ii) that the applicant was convicted under a statute that
is in violation of the Constitution of the United
States or the constitution of the state in which
judgment was rendered, or that the conduct for
which the applicant was prosecuted is
constitutionally protected;

(iii) that the court rendering judgment was without
jurisdiction over the person of the applicant or the
subject matter;

(iv) that the sentence imposed exceeded the maximum
authorized by law or is otherwise not in accordance
with the sentence authorized by law;

12

(v) that there exists evidence of material facts which
were not, and in the exercise of due diligence could
not have been, theretofore presented and heard in
the proceedings leading to conviction and sentence,
and that now require vacation of the conviction or
sentence;

(vi) that there has been a significant change in law,
whether substantive or procedural, applied in the
process leading to applicant's conviction or
sentence where sufficient reason exists to allow
retroactive application of the changed legal
standard;

(b) for meritorious claims challenging the legality of cus tody or
restraint based upon a judgment of conviction, including claims that a
sentence has been fully served or that there has been unlawful
revocation of parole or probation or conditional release.

ABA Standards for Post-Conviction Remedies § 22-21 (1980).
Under La.C.Cr.P. art. 930.3 , the first ground provides for relief if “[t]he
conviction was obtained in violation of the constitution of the United States or the
state of Louisiana.” Due to its broad scope, most post-conviction claims fall into this
category, because they implicate t he constitutional rights to due process and a fair
trial and concern the process by which the conviction was obtained. In 1996, this
Court rendered the decision in State ex rel. Melinie v. State, 93-1380 (La. 1/12/96),
665 So.2d 1172, finding that La.C.Cr .P. art. 930.3 provides no basis for review of
claims of excessiveness or other sentencing error post-conviction.
12
The principle that claims of ineffective assistance —whether at an or iginal
sentencing hearing or with regard to a habitual offender adjudicat ion—are not

12 In its entirety, Melinie provides:

We grant the application in order to rule definitively on the issue of whether a
person may raise the question of excessiveness of sentence in a post -conviction
application. La.Code Crim.Proc. art. 930.3, which sets out the exclusive grounds
for granting post -conviction relief, provides no basis for review of claims of
excessiveness or other sentencing error post -conviction. See State v. Gibbs, 620
So.2d 296 (La.App. 3d Cir.1993); cf. State ex rel. Glover v. State , 93-2330, p. 7,
11-14 (La. 9/5/95), 660 So.2d 1189, 1194, 1196- 98. Accordingly, relator's claim
for post-conviction relief based on the excessiveness of his sentence is denied.

13

cognizable on collateral review originated in brief writ dispositions only, and was
never the subject of a reasoned opinion of the Court. Based on the absence of the
word “sentence” from the first ground for post-conviction relief provided in
La.C.Cr.P. art. 930.3(1), Melinie concluded that sentencing claims are not
cognizable post-conviction. In support, Melinie cited only a third circuit opinion,
barely longer than a paragraph, which said essentially the same thing, and the Court’s
much more thorough prior opinion in State ex rel. Glover v. State , 93-2330 (La.
9/5/95), 660 So.2d 1189. In Glover , the Court found there was no ex post facto
obstacle to creating a three-year post-conviction limitations period.
Glover, however, did not involve or a ddress the issue of which claims are
cognizable and which are not cognizable post conviction. From the pinpointed pages
in the citation to Glover, it can be inferred that the Court in Melinie cited Glover for
the proposition that the legislature is not co nstitutionally obligated to provide any
post-conviction review. While it is one thing to find that the post-conviction review
process is not constitutionally required, it is another to find that a particular class of
claims is not included in that review process. In the more than two decades since
Melinie, the Court has extended its holding in similarly brief per curiams to find that
article 930.3 provides no basis for claims that counsel erred at sentencing, or during
a habitual offender adjudication or at the sentencing following such adjudication.
13

13 See State v. Cotton, 09- 2397 (La. 10/15/10), 45 So.3d 1030 (“[A] habitual offender
adjudication . . . constitutes sentencing for purposes of Melinie and La.C.Cr.P. art. 930.3, which
provides no vehicle for post -conviction consideration of claims arising out of habitual offender
proceedings, as opposed to dir ect appeal of the conviction and sentence.”); State v. Thomas , 08-
2912 (La. 10/16/09), 19 So.3d 466 (claims of “ineffective assistance of counsel at sentencing are
not cognizable on collateral review pursuant to La.C.Cr.P. art. 930.3 and State ex rel. Meli nie v.
State”); but see State v. Francis , 16-0513, p. 3 (La. 5/19/17), 220 So.3d 703, 704–05 (granting
writs to remand for a hearing on, inter alia, claim of ineffective assistance of appellate counsel for
failure to pursue an excessive sentence claim on appeal where claim was preserved by trial counsel:
“Although La.C.Cr.P. art. 930.3 ‘provides no basis for review of claims of excessiveness or other
sentencing error post-conviction,’ relator’s complaint that counsel erred by failing to challenge the

14

While the conclusion no sentencing claims are cognizable on collateral review
purports to be grounded in the language of the post-conviction articles, several leaps
of logic are necessary to get from what is actually written in those articles to the
notion that ineffective assistance of counsel at sentencing is not cognizable on
collateral review.
As a general matter, statutory interpretation begins “as [it] must, with the
language of the statute.” Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501,
506, 133 L.Ed.2d 472 (1995). Louisiana criminal statutes must be “given a genuine
construction, according to the fair import of their words, taken in their usual sense,
in connection with the context, and with reference to the purpose of the provision.”
La. R.S. 14:3; State v. Muschkat, 96- 2922, pp. 4–5 (La. 3/4/98), 706 So.2d 429, 432.
What “a legislature says in the text of a statute is considered the best evidence of the
legislative intent or will.” Norman J. Singer, Statutory Construction, 46:03, p. 135
(6th ed. 2000); see also State v. Barbier, 98-2933, p. 5 (La. 9/8/99), 743 So.2d 1236,
1239 (“[T]he first order of business is to look at the language of the statute itself.”).
Notably, La.C.Cr.P. art. 93 4(3) indicates that “[e]xcept where the context
clearly indicates otherwise, as used in this Code: ‘Convicted’ means adjudicated
guilty after a plea or after trial on the merits.” However, the revision comments from
1966 indicate that “[t]he definition of ‘convicted’ is stated as ‘adjudicated guilty,’
so that a definite point in time can be established to determine when a man is
‘convicted.’ This definition will be of some importance in dealing with bail, because
the bail rules are different after a defendant has been convicted.” La.C.Cr. P. art. 934
(1966) (official revision c omment (c)). Furthermore, La.C.Cr.P. art. 930.3
references the word “sentence” in three separate subsections, specifically in

sentence on appeal is cognizable post -conviction and, in fact, must be addressed on collateral
review if it is to be addressed at all.”) (internal citation omitted).

15

subsections 3, 5, and 6; 14 thus, it appears that the leg islature to some extent was
trying to differentiate between conviction and sentence. However, nothing indicates
why the legislature chose to invoke both ‘conviction’ and ‘sentence’ in the
provisions dealing with double jeopardy, the declaration of unconstitutionality of the
specific statute, or the ex post facto application of law, but not in the seemingly
equivalent provisions dealing with other constitutional violations.
A defendant is entitled to the effective assistance of counsel during both the
guilt and sentencing phases. 15 This principle is sacrosanct and is firmly ensconced
in our federal and state constitutions. See U.S. Const. amends. VI and XIV; see also
La. Const. art. I, § 13 (“At each stage of the proceedings, every person is entitled to
assistance of counsel of his choice, or appointed by the court if he is indigent and
charged with an offense punishable by imprisonment.”). Thus, Melinie insulates a
fair number of ineffective assistance claims by cutting off any recourse for the
consideration of ineffective assistance at sentencing upon collateral review.
Under the standard for ineffective assistance of counsel set out in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by

14 Specifically, those subsections provide:

(3) The conviction or sentence subjected him to double jeopardy;

(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional;
or

(6) The conviction or sentence constitute the ex post facto application of law in violation of the
constitution of the United States or the state of Louisiana.

15 Cf. Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 1385-86, 182 L.Ed.2d 398 (2012) (“The
precedents also establish that there exists a right to counsel during sentencing in both noncapital,
and capital cases.” (citations omitted)); State v. Carpenter, 390 So.2d 1296, 1299 (La. 1980) (“the
sixth amendment right to counsel applies to all critical stages, including sentencing”), and the right
to the effective assistance of counsel also applies, Strickland v. Washington, 466 U.S. 668, 686,
104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771,
n.14, 90 S.Ct. 1441, 1449, n.14, 25 L.Ed.2d 763 (1970) (“The right to counsel is the right to the
effective assistance of counsel.”); see also Glover v. United States , 531 U.S. 198, 121 S.Ct. 696,
148 L.Ed.2d 604 (2001) (error resulting in the increase of sentence of any amount can result in
ineffective assistance).

16

this Court in State v. Washing ton, 491 So.2d 1337, 1339 (La. 1986), a reviewing
court must reverse a conviction if the defendant establishes (1) that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms; and (2) counsel’s inadequate performance prejudiced defendant
to the extent that the trial was rendered unfair and the verdict suspect. The Strickland
test of ineffective assistance affords a “highly deferential” standard of review to the
actions of counsel to eliminate, as far as possible, “the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at
2065.16
Sentencing is a critical stage of the proceeding, at which there is a right to the
effective assistance of counsel, and direct review is ill suited to address such a
constitutional violation because it will often require further evidentiary
development. This Court recognized as much in State v. Francis , 16 -0513 (La.
05/19/17), 220 So.3d 703, holding that a claim of ineffective assistance of appellate
counsel (for failure to raise an excessive sentence claim on appeal) is cognizable on
collateral review. In Francis , the Court remanded the petitioner’s post- conviction
claims for an evidentiary hearing, noting that “[a]lthough La.C.Cr.P. art. 930.3
‘provides no basis for review of claims of excessiveness or other sentencing error
post-conviction,’ . . . [a] complaint that counsel erred by f ailing to challenge the
sentence on appeal is cognizable post-conviction and, in fact, must be addressed on
collateral review if it is to be addressed at all.” Id., 16-0513, p. 2, 220 So.3d at 704-
05.

16 Strickland involved a claim about whether the defendant received the effective representation at
sentencing.

17

There are two primary routes to challenge a conviction and sentence. A direct
appeal is limited to the record, see La.C.Cr.P. art. 920, and, therefore, is not designed
to address ineffective assistance of counsel claims. Claims presented on direct
appeal are limited to issues which were submitted to the tria l court. Because it is
highly unlikely that a defendant’s trial counsel would raise an ineffective assistance
of counsel claim in the trial court as to his own performance, the issue is rarely
submitted to the trial court (or subject to direct review on ap peal). As noted in
Coleman v. Goodwin, 833 F.3d 537, 542 (5th Cir. 2016), “[t]he Louisiana courts, as
noted above, have likewise repeatedly held that ineffective assistance of trial counsel
claims should typically be brought in collateral proceedings, and if a claim is brought
on direct appeal and the court determines that it cannot be decided on the record, the
court will direct that it be brought in a collateral proceeding” and cases that do not
follow this procedure appear to be outliers. Further, “Louisiana’s procedural system
‘makes it highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct
appeal....’” Id. at 543 (citations omitted). Additionally, appellate counsel rarely will
be able to adequately present an ineffective assistance of counsel claim to an
appellate court without first asking for a remand to have the record expanded and
the issue first determined by the trial court, which, while possible, is not practical.
In contrast, an application for post-conviction relief allows for the
presentation of claims that could not be addressed on direct review, including
ineffective assistance of counsel, suppression of Brady evidence, juror misconduct,
or any other cognizable ground that relies on evidence outside the trial record. Thus,
even though ineffective assistance of counsel claims are more appropriately
addressed in post-conviction proceedings, Melinie requires ineffective assistance of
counsel at sentencing claims to be raised on direct review. Melinie, however, does

18

not explain how a defendant can raise such collateral, non-record based claims in an
appeal that is limited by statute to record-based claims.
In the instant case, trial counsel did not object to the life sentence nor did he
file a motion to reconsider sentence following the habitual adjudication proceeding,
and thus, relator was limited to a bare claim of constitutional excessiveness on direct
review. Due solely to the internal proce dural rules of this Court in 2014, we
considered relator’s writ application to be untimely and treated it as a post-
conviction relief application, thereby barring any review of his excessive sentence
claim.
Notably, this Court granted a similar, timely, and counseled writ that same
year to vacate the excessive sentence of another defendant who was punished harshly
as a recidivist. See State v. Mosby , 14-2704 (La. 11/20/15), 180 So.3d 1274
17.
Mosby was a 72 -year-old, wheelchair -bound female with a substanc e abuse
problem. The Court vacated her 30-year habitual offender sentence for distribution
of cocaine, having found it grossly disproportionate under the circumstances. Id .
Like relator’s trial counsel here, Mosby’s trial counsel did not file a motion to
reconsider the sentence. See State v. Mosby, 14-0215, p. 8 (La. App. 4 Cir. 11/26/14),
155 So. 3d 99, 106.
Relator complains that the ineffective assistance of his counsel at the habitual
offender sentencing resulted in his constitutionally excessive life sentence. He also
contends that counsel did not inform the trial court that it could deviate downward
from a statutory minimum sentencing provision of the Habitual Offender law when
warranted. 18 See State v. Dorthey, 623 So. 2d 1276 (La. 1993); see also State v.

17 Justice Weimer and Justice Guidry dissented and would have denied the writ application.
Justice Clark dissented with reasons.

18 As previously mentioned, relator claimed that the trial judge was unaware that he possessed the
authority to deviate downward from the statutorily mandated life sentence, and therefore due

19

Johnson, 97 -1906, (La. 03/04/98), 709 So. 2d 672. An objectively reasonable
standard of performance requires that counsel be aware of the sentencing options in
the case and ensure that all reasonably available mitigating information and legal
arguments are presented to the court. Since Louisiana law prohibits excessive
sentences, and requires that individual circumstances be considered, counsel acts
unprofessionally when he fails to conduct a reasonable investigation into factors
which may warrant a downward departure from the mandatory minimum. See
generally Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (holding
that decision of counsel not to expand their investigation into petitioner’s life history
for mitigating evidence beyon d PSI and department of social services records fell
short of prevailing professional standards, and inadequate investigation prejudiced
petitioner).
Counsel’s failure to object to the sentence or file a motion to reconsider at the
habitual offender proce edings deprived defendant of an important judicial
determination by the trial court, and also failed to correct any inaccurate assumptions
concerning the law and the court’s capacity to deviate downward if warranted. This
failure also deprived the appella te court of an opportunity to review the district
court’s decisions (or errors of law), as well as deprived it of the opportunity to review
any evidence in support of defendant’s excessiveness claim that he could have put
into the record before the trial court.

process mandates that his life sentence be vacated and the matter remanded for resentencing.
Evidence of that claim would be of support in proving his ineffective assistance of counsel at
sentencing claim, as trial counsel should have ensured that the court was aware of its
responsibilities under Dorthey. See ABA Standards for Criminal Justice Standard on Sentencing
4-8.3 (“ Defense counsel should becom e familiar with the client's background, applicable
sentencing laws and rules, and what options might be available as well as what consequences might
arise if the client is convicted.”; “Defense counsel should present all arguments or evidence which
will assist the court or its agents in reaching a sentencing disposition favorable to the accused.”)

20

In Francis, this Court made an exception to Melinie , allowing the defendant
to assert upon collateral review his claim that appeal counsel was ineffective for
failing to challenge his sentence on appeal. In the interest of justice , we are
compelled to do the same for relator Derrick Harris; otherwise, he would be left
without a viable remedy for a possible constitutional violation depriving him of due
process of law.
DECREE

Accordingly, for the above reasons, we grant relator’s writ, in part, and
remand the matter to the district court to conduct an evidentiary hearing on relator’s
claim that trial counsel rendered ineffective assistance at sentencing.
GRANTED IN PART AND REMANDED.

07/09/20
SUPREME COURT OF LOUISIANA
No. 2018-KH-1012
STATE OF LOUISIANA
versus
DERRICK L. HARRIS
ON SUPERVISORY WRIT TO THE 15TH JUDICIAL DISTRICT COURT,
PARISH OF VERMILION
WEIMER, J., concurring.
During the defendant’s sentencing hearing for the underlying offense of selling
0.69 grams of marijuana, the trial judge noted that the defendant was “not a drug
kingpin” and is “not what we would think of as a drug dealer so far as I can tell.”
These were key reasons the trial court did not impose the maximum sentence of thirty
years: “As I was saying, I think that the maximum sentence is not what is called for
here … .”1 Despite these remarks, when the state’s multiple offender bill was later
considered, the trial court imposed a life sentence.
The crux of the defendant’s position is that in response to the state’s multiple
offender bill, his trial counsel made an insufficient evidentiary presentation and no
legal argument to persuade the trial court that deviating from the statutory sentence
was required because a life sentence is constitutionally excessive.2 The state responds
that in post-conviction proceedings, such claims are barred pursuant to State ex rel.
1 These quotes and a fuller narration of the trial court’s views are available in State v. Harris,
13-133, p.2 (La.App. 3 Cir. 12/11/13), 156 So.3d 694, 703 (Cooks, J., dissenting).
2 In the context of habitual offender sentencing, this court has emphasized the trial court’s “control
over the entire sentencing process” provides “the option, indeed the duty, to reduce such sentence
to one that would not be constitutionally excessive.” State v. Dorthey, 623 So.2d 1276, 1280-81
(La. 1993).

Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172 (per curiam). In Melinie,
this court ruled: “La. Code Crim. Proc. art. 930.3, which sets out the exclusive
grounds for granting post-conviction relief, provides no basis for review of claims of
excessiveness or other sentencing error post-conviction.” Id.
However, Melinie did not address the present situation, in which the defendant
argued that his trial counsel failed to respond to the trial court’s obvious dismay at the
prospects of imposing a maximum sentence. While lessening the sentence is certainly
the defendant’s endgame, the instant case is conceptually different because it is not
the sentence per se, but the alleged non-involvement by defense counsel in the
multiple bill proceeding that forms the basis of the defendant’s claim. I agree with
the majority that due process mandates that the merits of this claim must be actually
considered by the trial court. Simply put, the procedural default proposed by the state
would not satisfy the demands of justice to give meaningful review to these
allegations that defense counsel’s silence at a critical stage of the proceedings paved
the way for a constitutionally excessive sentence.3
While I am not prejudging the merits as to whether the defendant was
prejudiced by trial counsel’s performance at the multiple bill sentencing, the interests
of justice require consideration of the narrative appellate counsel emphasized to this
court. According to the present narrative, the defendant developed a substance abuse
problem after returning from his honorable military service in Desert Storm, and his
prior offenses were nonviolent and related to his untreated dependency on drugs.
Moreover, from the absence of scales and packaging at the defendant’s home, it
3 The majority correctly observes that a sentencing hearing is a critical stage of a criminal
proceeding for purposes of the right to effective assistance of counsel, as this court previously
explained in State v. Carpenter, 390 So.2d 1296, 1299 (La. 1980) (“the sixth amendment right to
counsel applies to all critical stages, including sentencing”).
2

appears that the quantity of marijuana in this case is not indicative of involvement in
the drug trade, but rather related to the defendant’s individual use, as the total (0.69
g) obtained by police most likely sufficed for only one or two cigarettes.4
I also hasten to add that in no way do I advocate that courts should broaden the
strictures of La. C.Cr.P. art. 930.3(1) (limiting relief to the situation whereby a
“conviction was obtained in violation of the constitution”) (Emphasis added.). As
just noted, the strictures of Article 930.3(1) must yield here to the due process
concerns that the defendant’s life sentence allegedly was, at the very least, facilitated
by defense counsel’s failure to lodge a proper objection to the statutory sentence as
being constitutionally excessive.5 I further emphasize that I perceive the due process
concerns of this case to be unique, with origins in defense counsel allegedly not
responding to an obvious invitation from the trial court’s comments to challenge a
habitual offender sentence as constitutionally excessive. In light of the forgoing, I
respectfully concur with the majority’s remand for a hearing as to whether trial
counsel rendered effective assistance based on the unique facts and procedural
posture of this matter.
4 See Greg Ridgeway and Beau Kilmer, Bayesian Inference for the Distribution of Grams of
Marijuana in a Joint, 165 Drug and Alcohol Dependence 175, 175-78 (Aug. 2016) (surveying
arrestee records pertaining to 10,628 marijuana transactions between 2000 and 2010, researchers
determined the average weight of marijuana in a “joint” to be 0.32 g. As a point of comparison, the
typical cigarette contains approximately 1.0 g of tobacco.).
5 It is a longstanding principle that “to the extent the legislative enactments deprive an accused of
due process of law, then they must yield.” State v. Rideau, 246 La. 451, 165 So.2d 282, 284 (1964).
3

07/09/20
SUPREME COURT OF LOUISIANA
No
. 2018-KH-01012
STA
TE OF LOUISIANA
ve
rsus
DE
RRICK L. HARRIS
O
N SUPERVISORY WRIT TO THE FIFTEENTH
JUDICIAL DISTRICT COURT, PARISH OF VERMILION
C
richton, J., concurs and assigns reasons:
While I agree with the result reached by the majority, I write separately
because I believe the importance of the issue decided here , and the impact of this
decision, requires the Court to speak with absolute clarity. In my view, State ex rel.
Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172, was wrongly decided and
should be overruled to the extent it stands as an insurmountable obstacle to affording
relief on collateral review when counsel has rendered ineffective assistance in a
sentencing proceeding. The majority opinion, however, leaves it to the reader to
surmise as to the impact of the majority’s ruling and does not explicitly reveal that
Melinie is overruled.
State ex rel. Melinie v. State is a three-sentence per curiam opinion that was
issued by the Court without briefing or oral argument and in response to an
unopposed writ application by a pro- se prisoner litigant. The issue addressed by
Melinie was not assigned as error or addressed in the pro-se writ application at all.
This Court arrived at its holding peremptorily and sua sponte. The effect of that
holding, particularly as it has been expanded by State v. Cotton , 09 -2397 (La.
10/15/10), 45 So.3d 1030, and State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d

2

466, has been sweeping and bars the defendant here from any relief in post-
conviction proceedings . Defendant received a sentence of imprisonment for life
without parole as a fourth-felony offender for selling 0.69 grams of marijuana to an
undercover officer for $30. Counsel rendered textbook ineffective assistance by
failing to object to the sentence, failing to file a motion to reconsider the sentence,
and failing to correct the sentencing court’s apparent unawareness of its authority to
deviate below the mandatory life sentence required by the habitual offender law
when such sentence would be constitutionally excessive, as it is here. Nonetheless,
defendant is entirely without a remedy for this violation of his Sixth Amendment
right to effective representation because of Melinie and the equally terse and
unreasoned per curiams that followed it. The Court today correctly recognizes that
simply cannot be.
A defendant is entitled to the effective assistance of counsel during both the
guilt and sentencing phases. “At each stage of the proceedings, every person is
entitled to assistance of counsel of his choice, or appointed by the court if he is
indigent and charged with an offense punishable by imprisonment.” La. Const. Ann.
Art. I, § 13. This principle is firmly embedded in both the state and federal
constitutions. The State has been unable to explain why the legislature would have
decided that the Sixth Amendment somehow matters less during sentencing than it
does during trial. Specifically, the State cannot explain why the legislature would
have chosen to leave a defendant whose errors by counsel result in a constitutionally
excessive sentence (and one that is shielded from full review on appeal) without a
remedy—like the defendant here whose sentence was only reviewed for “bare
excessiveness” because of counsel’s failure to object or move to reconsider it.
Furthermore, defendant and amici advocating on his behalf convincingly establish

3

that confining review of this one particular variety of ineffective assistance of
counsel to direct appeal— despite the fact that review of all other forms of ineffective
assistance occurs by way of post-conviction proceedings —eliminates any
meaningful opportunity to review it at all. Such an approach is nonsensical, and the
Sixth Amendment cannot be eviscerated in this fashion.
Based on the absence of the word “sentence” from the first ground for post -
conviction relief provided in La.C.Cr.P. art. 930.3(1), Melinie concluded that
sentencing claims are not cognizable post-conviction. In support, Melinie cited only
a conclusory one-paragraph opinion from the Third Circuit Court of Appeal, which
stated essentially the same thing, and this Court’s much more thorough prior opinion
in State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In Glover, the
Court found that there was no ex post facto obstacle to creating a three -year post-
conviction limitations period.
Glover did not address the cognizability of post-conviction claims. From the
pinpointed pages in the citation to Glover, however, one can surmise that Melinie
cited Glover for the proposition that the legislature is not constitutionally obligated
to provide any post- conviction review. There are several logical steps missing
between the proposition that post -conviction review is not mandated and the
conclusion, which is actually a matter of statutory interpretation never explicitly
performed in Melinie ’s brief analysis, such as it is, that sentencing claims are not
cognizable post-conviction. It is one thing to find that the post -conviction review
process is not constitutionally required. It is quite another to find that a particular
class of claims is not included in that review process. Here, the majority correctly
performs that task of statutory interpretation and finds that violations of the Sixth
Amendment are no longer barred from collateral review simply because they

4

occurred during sentencing rather than during trial. To the extent Melinie stands for
the contrary proposition, today the Court appears to overrule it but does so only
implicitly without admitting as much.
I recognize that Melinie has been applied many times over several years, and
I do not seek to upset such a long-standing precedent lightly. For example, in Ramos
v. Louisiana, 590 U.S. —, 140 S.Ct. 1390 (2020), the United States Supreme Court
overruled long-standing precedent to find that the Sixth Amendment right to a jury
trial— as incorporated against the States by way of the Fourteenth Amendment—
requires a unanimous verdict to convict a defendant of a serious offense . In doing
so, the Court found that stare de cisis was not a sufficient reason to maintain a
precedent that the court considered to be poorly reasoned and wrongly decided. It
also found that the “reliance interests” urged by Louisiana and Oregon were
outweighed by the need to preserve the Sixth Amendment itself:
In its valiant search for reliance interests, the dissent somehow misses
maybe the most important one: the reliance interests of the American
people. Taken at its word, the dissent would have us discard a Sixth
Amendment right in perpetuity rather than ask two States to retry a slice
of their prior criminal cases. Whether that slice turns out to be large or
small, it cannot outweigh the interest we all share in the preservation of
our constitutionally promised liberties. Indeed, the dissent can cite no
case in which the one -time need to retry defendants has ever been
sufficient to inter a constitutional right forever.

Ramos, 140 S.Ct. at 1408. Likewise here, the State warns of the administrative
burden this court will place on it if it does not maintain the status quo under Melinie.
That administrative burden is far outweighed by the need to preserve the Sixth
Amendment right to effective representation and to guarantee that the violation of
that right will have a remedy under law.
While I do not venture an opinion as to the wisdom of Ramos or address its

5

impact on Louisiana here, I do find its discussion of stare decisis to be instructive. 1
In addition, Justice Kavanaugh concurred in Ramos to address stare decisis at some
length and noted that “the doctrine of stare decisis does not dictate, and no one
seriously maintains, that the Court should neve r overrule erroneous precedent” but
rather “ applying the doctrine of stare decisis, this Court ordinarily adheres to
precedent, but sometimes overrules [it].” Ramos, 140 S.Ct. at 1412 (Kavanaugh, J.,
concurring in part). Nonetheless, he noted that overruling precedent sometimes
requires special justification, and he proposed that justification be evaluated with
three broad factors:
First, is the prior decision not just wrong, but grievously or egregiously
wrong? A garden -variety error or disagreement does not suffice to
overrule. In the view of the Court that is considering whether to
overrule, the precedent must be egregiously wrong as a matter of law
in order for the Court to overrule it. In conducting that inquiry, the
Court may examine the quality of the precedent’s reasoning,
consistency and coherence with other decisions, changed law, changed

1 While the doctrine of jurisprudence constante is an integral part of Louisiana’s civilian heritage,
the doctrine of stare decisis is part of the common law tradition that has continuously governed
criminal law in this jurisdiction from the time it was a te rritory of the United States. On May 4,
1805, the territorial government of Orleans passed an “Act for the Punishment of Crimes and
Misdemeanors” that contained the following provision:

And be it further enacted, That all of the crimes, offences and misdemeanors herein
before named, shall be taken, intended and construed, according to and in
conformity with the common law of England; and that the forms of indictment,
(divested however of unnecessary prolixity) the method of trial; the rules of
evidence, an d all other proceedings whatsoever in the prosecution of the said
crimes, offenses and misdemeanors, chan ging what ought to be changed, shall be
except as is by this act otherwise provided for, according to the said common law.

Acts Passed at the First Session of the Legislative Council for the Territory of Orleans , Ch. 50,
Sec. 33 (1805). Subsequently, in 1844, the Louisiana Supreme Court construed this Act as
incorporating the common law of England as it existed in 1805 (including any criminal statutes in
effect at the time) into the criminal law of the Territory, which persisted when the State of
Louisiana was created. See State v. McCoy, 8 Robinson (La.) 545 (1844). Previously, in 1840, this
Court had also exercised its authority over the practice of law to declare that the common law is
the source of law in criminal practice. See Warren M. Billings, The Historic Rules of the Supreme
Court of Louisiana, 1813–1879 (1985). Cases abound in which this Court has utilized the doctrine
of stare decisis in criminal matters. See, e.g., State v. Jenkins, 36 La.Ann. 865 (1884). For a more
thorough discussion of the formative role of the common law tradition in Louisiana’s criminal law,
see Warren M. Billings, Origins of Criminal Law in Louisiana, Part IV, Vol. 13, The Louisiana
Purchase Bicentennial Series in Louisiana History (ed. Schafer & Billings 1997).

6

facts, and workability, among other factors. A case may be egregiously
wrong when decided, see, e.g., Korematsu v. United States, 323 U.S.
214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Plessy v. Ferguson , 163 U.S.
537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), or may be unmask ed as
egregiously wrong based on later legal or factual understandings or
developments, see, e.g., Nevada v. Hall , 440 U.S. 410, 99 S.Ct. 1182,
59 L.Ed.2d 416 (1979), or both, ibid.

Second, has the prior decision caused significant negative
jurisprudential or real-world consequences? In conducting that inquiry,
the Court may consider jurisprudential consequences (some of which
are also relevant to the first inquiry), such as workability, as well as
consistency and coherence with other decisions, among othe r factors.
Importantly, the Court may also scrutinize the precedent’s real -world
effects on the citizenry, not just its effects on the law and the legal
system. See, e.g., Brown v. Board of Education, 347 U.S. at 494 –495,
74 S.Ct. 686; Barnette , 319 U.S. a t 630–642, 63 S.Ct. 1178; see also
Payne, 501 U.S. at 825–827, 111 S.Ct. 2597.

Third, would overruling the prior decision unduly upset reliance
interests? This consideration focuses on the legitimate expectations of
those who have reasonably relied on the precedent. In conducting that
inquiry, the Court may examine a variety of reliance interests and the
age of the precedent, among other factors.

In short, the first consideration requires inquiry into how wrong the
precedent is as a matter of law. The sec ond and third considerations
together demand, in Justice Jackson’s words, a “sober appraisal of the
disadvantages of the innovation as well as those of the questioned case,
a weighing of practical effects of one against the other.” Jackson, 30 A.
B. A. J., at 334.

Ramos, 140 S.Ct. at 1414–15 (Kavanaugh, J., concurring in part).
Melinie checks all three boxes. Its reasoning was nonexistent and it was
egregiously wrong when it was decided. The consequences of it have been
significant and negative, leaving defendants like this one with no real remedy for the
denial of the Sixth Amendment right to effective representation during sentencing,
a critical stage of the proceedings. In contrast, the consequences for the State of our
ruling now, while not trivial, are not particularly great either. After today, if the
majority opinion is read correctly, the State will simply lose a procedural bar and be
required to respond to certain claims in post-conviction proceedings on the merits.

7
Given the im portance of the Sixth Amendment right to counsel and the serious
consequences that can result when a defendant is denied effective representation
during sentencing, adherence to such basic constitutional protections does not seem
insurmountable.

07/09/20
S
UPREME COURT OF LOUISIANA
No
. 2018-KH-01012
STA
TE OF LOUISIANA
VS.
DERRICK L. HARRIS
O
n Supervisory Writ to the 15th Judicial District Court, Parish of Vermilion
G
ENOVESE, J., additionally concurs for the reasons assigned by Justice
Crichton.

SUPREME COURT OF LOUISIANA
NO. 2018-KH-1012
STATE OF LOUISIANA
VERSUS
DERRICK L. HARRIS
ON SUPERVISORY WRIT TO THE FIFTEENTH JUDICIAL DISTRICT
COURT, PARISH OF VERMILION
CRAIN, J., dissenting.
The defendant’s sentence was not reviewed by this Court on direct appeal
because his writ application was untimely. Under the Court’s current rules,
however, the writ application would have been timely. Now relegated to post-
conviction relief, defendant must rely on Louisiana Code of Criminal Procedure
article 930.3, which provides no basis for review of claims of excessiveness or other
sentencing error post-conviction. See State ex rel. Melinie v. State , 93-1380 (La.
1/12/96), 665 So. 2d 1172 (per curiam). Seeking to circumvent almost 25 years of
established jurisprudence from this Court, defendant re-cast his excessive-sentence
argument as a claim of ineffective assistance of counsel at sentencing, a semantical
distinction that seeks the same relief: a reduced sent ence. While the unique
circumstances of this case may warrant relief, I would not provide it, as the majority
does, by creating an additional basis for post-conviction relief under Article 930.3.
Rather, in the interest of justice, this Court should exercise its plenary judicial power,
review the constitutionality of the sentence, and leave any needed amendments to
Article 930.3 to the legislature. See La. Const. art. V, §5(A); State v. Wimberly, 414
So. 2d 666, 670 (La. 1982) (“The constitutional grant of supervisory authority to this
court is plenary, unfettered by jurisdictional requirements, and exercisable at the
complete discretion of the court.”).