State Of Louisiana v. Casey Lynn Lane

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 KA 0231

STATE OF LOUISIANA

VERSUS

CASEY LYNN LANE

Judgment Rendered: " SEP 2 7 2019

Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 583831- 1

Honorable August J. Hand, Judge Presiding

Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
Matthew Caplan

Assistant District Attorney
Covington, Louisiana

Cynthia Meyer Counsel for Defendant/ Appellant
New Orleans, Louisiana Casey Lynn Lane

BEFORE: WHIPPLE, C. J., GUIDRY, AND CRAIN, JJ.

GUIDRY, J.

The defendant, Casey Lynn Lane, was charged by bill of information with

two counts of possession of heroin, violations of La. R.S. 40: 966( C). The

defendant initially pled not guilty to the charged offenses, but subsequently

withdrew her not guilty pleas and pled guilty to both charges at a Boykin hearing.

See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 ( 1969). The

defendant entered Crosby pleas, reserving her right to challenge the proper

sentencing provision under which she should be sentenced. See State v. Crosby,

338 So. 2d 584 ( La. 1976). For each count, the defendant was sentenced to ten

years imprisonment at hard labor. The sentences were ordered to run concurrently.

The defendant filed a motion to reconsider sentence. Following a hearing on the

matter, the trial court denied the motion. The defendant now appeals, designating

one assignment of error. We affirm the convictions, vacate the sentences, and

remand for resentencing.

FACTS

Because the defendant pled guilty, the facts were not developed at a trial. At

the Boykin hearing, the prosecutor offered a stipulation of the factual basis for the

guilty pleas. The bill of information charged the defendant with two counts of

possession of heroin, once on November 22, 2016 and once on April 7, 2017.

ASSIGNMENT OF ERROR

In her sole assignment of error, the defendant argues the trial court erred in

sentencing her under the incorrect version of the statute for possession of heroin.

Specifically, the defendant contends she should have been sentenced under the

ameliorative sentencing provisions of the 2017 amendments to La. R. S. 40: 966.

This assignment of error has merit because the defendant' s sentences are

illegally excessive. For each of the two convictions for possession of heroin, the

trial court sentenced the defendant to ten years imprisonment at hard labor, with

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the sentences to run concurrently. At the time the defendant committed each of the

offenses ( November 22, 2016 and April 7, 2017), La. R.S. 40: 966 provided in

pertinent part:

C. Possession.
It is unlawful for any person knowingly or
intentionally to possess a controlled dangerous substance classified in
Schedule I .... Any person who violates this Subsection with respect
to:

1) A substance classified in Schedule I which is a narcotic
drug ( all substances in Schedule I preceded by an asterisk), shall be
imprisoned at hard labor for not less than four years nor more than ten
years and may, in addition, be required to pay a fine of not more than
five thousand dollars.

Under 2017 La. Acts No. 281, § 2, which became effective on August 1,

2017, the provision for the possession of heroin ( or fentanyl) was amended to the

following:

C. Possession.
It is unlawful for any person knowingly or
intentionally to possess a controlled dangerous substance classified in
Schedule I .... Any person who violates this Subsection with respect
to:

1) Except as otherwise provided in Paragraphs ( 2), ( 3), and ( 4)
of this Subsection, a substance classified in Schedule I for an amount
of.

4)
A substance classified in Schedule I that is the narcotic drug
heroin or a mixture or substance containing a detectable amount of
heroin or of its analogues, or fentanyl or a mixture or substance
containing a detectable amount of fentanyl or its analogues, upon
conviction for an amount:

a) An aggregate weight of less than two grams, shall be
sentenced to a term of imprisonment, with or without hard labor, for
not less than two years nor more than four years.' ( Italics added.)

See La. R.S. 40: 966( C)( 4)( a).

The " who violates" language of Subsection C is modified by the language

immediately following it: " Except as otherwise provided in Paragraphs ( 2), ( 3),

and ( 4) of this Subsection." Paragraph ( C)( 4), not found in the pre -amendment

1 The bill of information does not indicate the amount of heroin the defendant possessed. At the
motion to reconsider sentence hearing, however, both the trial court and the defendant indicated
the amount was less than two grams. Further, the crime lab report reveals that heroin was found
in three syringes " suspected to contain residue." In a footnote in its brief, the State concedes the
defendant possessed less than two grams of heroin.

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statute, contains the " upon conviction" language.

At the hearing on the motion to reconsider sentence, the defendant appeared

in proper person. In determining that the applicable law was the law in effect at

the time the defendant committed the offenses, the trial court found in pertinent

part:

And the verbiage in this particular section indicates a person who
violates, which means an old law would still be applicable. The one
case that has been handed down by the First Circuit had verbiage to
the effect in the statute upon conviction. So that meant that at the time
of conviction when you applied that sentencing. And that issue I think
may still be subject to review by the Supreme Court.

The language in the possession of heroin statute does not say
upon conviction. It says " any person who violates." So that language
would mean that the sentencing provisions at the time of the
commission of the offense would apply which current, at the time of
your arrest, that statute was the sentencing of 4 to 10 years for
possession of heroin.

The case to which the trial court appears to have been referring was State v.

Harrison, 17- 1566 ( La. App. 1st Cir. 5/ 1/ 18), 2018 WL 2041414 ( unpublished),

writ denied, 18- 1110 ( La. 3/ 6/ 19), 266 So. 3d 896. In that case, this court

determined that the amended, ameliorative version of La. R. S. 14: 95. 1, which

contained the language " Whoever is found guilty" applied to the defendant, even

though the defendant had violated La. R.S. 14: 95. 1 prior to its amendment. In

particular, this court found that the general rule against retroactive application

unless expressly stated, see La. R.S. 1: 2,2 had been overcome by the specific

language of La. R. S. 14: 95. 1( B), and that such language dictated that a defendant

found guilty" would be subject to the amended sentence range. This court further

noted that the words " found guilty" are the same as " upon conviction," as

interpreted by the supreme court. See State v. Holloway, 15- 1233 ( La. 10/ 19/ 16),

217 So. 3d 343; State v. Max, 01- 3195 ( La. 6/ 21/ 02), 820 So. 2d 526. The

supreme court, this court stated, had found such wording material and, unless

2 La. R.S. 1: 2 provides that " No Section of the Revised Statutes is retroactive unless it is
expressly so stated."

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violative of the ex post facto prohibition, should be applied as written; accordingly,

this court found in Harrison that there was no ex post facto violation because the

amended sentence was ameliorative and did not increase the burden on the

defendant. Harrison, 2018 WL 2041414, at * 3- 4; see Holloway, 15- 1233 at pp. 7-

8, 217 So. 3d at 348.

The State notes in brief the general rule that the law in effect at the time of

the commission of the offense is determinative of the penalty which the convicted

accused must suffer. See State v. Sugasti, 01- 3407, p. 4 ( La. 6/ 21/ 02), 820 So. 2d

518, 520. The Mayeux Court, which carved out an exception to this general rule,

found that the sentencing provisions of La. R. S. 14: 98 applied retroactively. The

State points out that in Mayeux, the Court found that the specific language of

upon conviction" suggested retroactive application. See Mayeux, 01- 3195 at pp.

5- 7, 820 So. 2d at 529- 30. According to the State, unlike Harrison and Mayeux,

the statute violated by the defendant in the instant matter contained no language

comparable to " found guilty" or " upon conviction" that would allow the general

rule against retroactivity to be overcome.

The State' s claim is inaccurate. As noted above, the amended version of La.

R. S. 40: 966( C)( 4)( a) contains the words " upon conviction." The defendant herein

was convicted and sentenced on November 8, 2017, which was after the amended

provision became effective ( August 1, 2017). Just as in Harrison, there is no ex

post facto violation herein because the amended provision is ameliorative and does

not increase the burden on the defendant.

Accordingly, we find that the trial court in the instant matter erred in failing

to sentence the defendant under the amended version of La. R.S. 40: 966( C), which

provides that " upon conviction," the defendant shall be sentenced to a term of

imprisonment, with or without hard labor, for not less than two years nor more than

four years. See La. R. S. 40: 966( C)( 4)( a); see also State v. Johnson, 18- 1274, p. 1

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La. App. 1 st Cir. 12/ 3/ 18), 2018 WL 6309095, at * I ( unpublished writ action).

For the reasons set forth, we affirm the convictions, vacate the two ten- year

sentences at hard labor, and remand to the trial court for resentencing under the

amended provision of La. R.S. 40: 966( C)( 4)( a).

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED
FOR RESENTENCING

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