State Of Louisiana v. Marlon D. Harwell

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 1208

STATE OF LOUISIANA

VERSUS

MARLON D. HARWELL

Judgment rendered: FEB 2 12020

On Appeal from the
Twenty -Second Judicial District Court
In and for the Parish of Washington
State of Louisiana
No. 18- CR10- 139139, Div. " E"

The Honorable William J. Burris, Judge Presiding

Warren Montgomery Attorneys for Appellee
District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana

Katherine M. Franks Attorney for Defendant/Appellant
Louisiana Appellate Project Marlon D. Harwell
Madisonville, Louisiana

BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.

T/C _ ifs Pit/ 4m)
Pd 1

HOLDRIDGE, I

The defendant, Marlon Harwell, was charged by bill of information with

obscenity, a violation of La. R. S. 14: 106. He pled not guilty and, following a jury

trial, was found guilty as charged. The State filed a habitual offender bill of

information.' Following a hearing on the matter, the defendant was adjudicated a

fourth -felony habitual offender and sentenced to life imprisonment without the

benefit of probation or suspension of sentence. The defendant filed a motion to

reconsider the sentence, which was denied. The defendant now appeals,

designating two assignments of error. We affirm the conviction and habitual

offender adjudication. We vacate the life sentence. We remand to the trial court

for resentencing and for a determination of whether the twenty-year mandatory

minimum sentence pursuant to La. R.S. 15: 529. 1( A)(4)( b) is constitutionally

excessive.

FACTS

Lieutenant Jeff Bergeron, with the Bogalusa Police Department, had

received complaints that the defendant had been masturbating in view of the

public.
On the morning of June 26, 2018, Lieutenant Bergeron was in an

unmarked unit when he saw the defendant walk out of his residence, a duplex on

Ontario Avenue in Bogalusa. The defendant walked to the side of his residence,

where there were chairs and a table, and he sat down. Lieutenant Bergeron

indicated that the area where the defendant was sitting was open to the public, and

it faced Superior Avenue, which was a major roadway that people traveled on

every day. To obtain a better view of the defendant without being seen, Lieutenant

Bergeron went inside a house located near the defendant' s residence. The

defendant was wearing a T- shirt and shorts. According to Lieutenant Bergeron, as

1 The defendant has three prior convictions for obscenity, which were used to adjudicate him a
habitual offender.
2

he observed the defendant through the kitchen window, he saw the defendant

remove his penis through the leg of his shorts and masturbate. Lieutenant

Bergeron arrested the defendant.

The defendant testified at trial. The defendant had prior convictions for

indecent behavior with juveniles ( for public masturbation), obscenity, forgery,

possession of cocaine,
and simple burglary. On the day of the incident, the

defendant conceded that he was outside of his residence at about 7: 00 a.m., but he

denied that he exposed himself and masturbated.

ASSIGNMENTS OF ERROR

In these two related assignments of error, the defendant argues, respectively,

his sentence is illegal because he was sentenced under the wrong habitual offender

provision; and, in the alternative, his life sentence is excessive.

The trial court sentenced the defendant, as a fourth -felony habitual offender,

under La. R.S. 15: 529. 1( A)(4)( a). The defendant argues that because none of his

convictions, including the instant offense, is defined as a crime of violence or sex

offense, the applicable sentencing provision is La. R.S. 15: 529. 1( A)(4)( b). We

agree. The State in brief also agrees with the defendant.

The defendant committed the offense of obscenity on June 26, 2018.

Accordingly, the applicable provisions of the Habitual Offender Statute are those

that existed on the date the offense was committed. See State v. Parker, 2003-

0924 ( La. 4/ 14/ 04), 871 So. 2d 317, 327 (" the punishment to be imposed on

defendant, a habitual offender, is that provided by La. R.S. 15: 529. 1 as it existed

on the date he committed the underlying offense"); State v. Sugasti, 2001- 3407

La. 6/ 21/ 02), 820 So. 2d 518, 520.

The applicable provision of La. R.S. 15: 529. 1( A), which became effective

on November 1, 2017, addresses sentencing for fourth or subsequent felony

3

convictions and provides in pertinent part:

4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then the following sentences apply:

a) The person shall be sentenced to imprisonment for the
fourth or subsequent felony for a determinate term not less than the
longest prescribed for a first conviction but in no event less than
twenty years and not more than his natural life.

b) If the fourth felony and no prior felony is defined as a crime
of violence under R.S. 14: 2( B) or as a sex offense under R.S. 15: 541,
the person shall be imprisoned for not less than twenty years nor more
than twice the longest possible sentence prescribed for a first
conviction. If twice the possible sentence prescribed for a first
conviction is less than twenty years, the person shall be imprisoned
for twenty years.

c) If the fourth felony and two of the prior felonies are
felonies defined as a crime of violence under R.S. 14: 2( B), or a sex
offense as defined in R.S. 15: 541 when the victim is under the age of
eighteen at the time of commission of the offense, the person shall be
imprisoned for the remainder of his natural life, without benefit of
parole, probation, or suspension of sentence.

The defendant was sentenced pursuant to La. R.S. 15: 529. 1( A)(4)( a). The

defendant' s instant conviction and all three predicate convictions were for the

offense of obscenity, which are not crimes of violence under La. R.S. 14: 2( B).

Under La. R.S. 15: 529. 1( A)(4)( b), the list of prohibited sex offenses are those set

forth in La. R. S. 15: 541. Under La. R.S. 15: 541( 24)( a), the only " sex offense"

listed pertaining to obscenity is La. R.S. 14: 106( A)(5) "( obscenity by solicitation

of a person under the age of seventeen)." Particularly, under La. R.S.

14: 106( A)(5), the crime of obscenity is the intentional solicitation or enticement of

an unmarried person under the age of seventeen years " to commit any act

prohibited by Paragraphs ( 1), ( 2), or (3) of this Subsection."

The defendant' s instant conviction and prior convictions were for violations

of La. R.S. 14: 106. Nothing in the facts of the instant conviction or those set forth

in the prior convictions indicate the defendant sought to solicit a minor to commit

0

the crime of obscenity. Accordingly, since none of the defendant' s convictions,

including the instant conviction, are sex offenses under La. R.S. 15: 5411 the

defendant should have been sentenced under La. R. S. 15: 529. 1 ( A)(4)( b).

We recognize that the more general provision of La. R.S. 15: 529. 1( A)(4)( a)

applies to the defendant as well. A rule of statutory construction, however, is that a

specific statute controls over a broader, more general statute. See Sharp v. Sharp,

2005- 1046 ( La. App. 1st Cir. 6/ 28/ 06), 939 So. 2d 418, 421, writ denied, 2006- 1877

La. 11/ 17/ 06), 942 So. 2d 533. Further, a fundamental rule of statutory

construction is that when two statutes deal with the same subject matter, if there is

a conflict, the statute specifically directed to the matter at issue must prevail as an

exception to the statute more general in character. State v. Campbell, 2003- 3035

La. 7/ 6/ 04), 877 So. 2d 112, 118. See Burge v. State, 2010- 2229 ( La. 2/ 11/ 11), 54

So. 3d 1110, 1113 ( per curiam).

Under La. R. S. 15: 529. 1( A)(4)( b), if none of the convictions are crimes of

violence or sex offenses under La. R. S. 15: 541, then the person shall be

imprisoned for not less than twenty years nor more than twice the longest possible

sentence prescribed for a first conviction. If twice the possible sentence prescribed

for a first conviction is less than twenty years, the person shall be imprisoned for

twenty years." The maximum sentence for a first conviction of obscenity is three

years imprisonment with or without hard labor. See La. R.S. 14: 106( G)( 1).

Accordingly, since twice the possible sentence prescribed for a first conviction of

obscenity is less than twenty years, the defendant' s sentencing exposure is

imprisonment for twenty years. We, therefore, vacate the defendant' s life sentence.

With the vacating of the instant sentence, the trial court has not had the

opportunity to consider the excessiveness vel non of the defendant' s twenty-year

mandatory minimum sentence. In State v. Dorthey, 623 So. 2d 1276, 1280- 81 ( La.

Wi

1993), the Supreme Court held that a trial court must reduce a defendant' s sentence

to one not constitutionally excessive if the trial court finds that the sentence

mandated by the Habitual Offender Law makes no measurable contribution to

acceptable goals of punishment, or is nothing more than the purposeful imposition

of pain and suffering and is grossly out of proportion to the severity of the crime.

To rebut the presumption that the mandatory minimum sentence is constitutional,

the defendant must clearly and convincingly show that he is exceptional, which in

this context means that because of unusual circumstances this defendant is a victim

of the legislature' s failure to assign sentences that are meaningfully tailored to the

culpability of the offender, the gravity of the offense, and the circumstances of the

case. State v. Johnson, 97- 1906 ( La. 3/ 4/ 98), 709 So. 2d 672, 676.

Because the defendant' s instant conviction and prior convictions are neither

violent offenses under La. R.S. 14: 2( B) nor sex offenses under La. R.S. 15: 541, it

is necessary for the trial court to determine whether the mandatory minimum

twenty-year sentence may be excessive. Accordingly, we remand this case to

afford the defendant the opportunity at the sentencing hearing to prove that the

mandatory minimum sentence of twenty years is unconstitutionally excessive as

applied to him. See State v. Thompkins, 2018- 2104 ( La. 6/ 17/ 19), 274 So. 3d

1252, 1253- 54 ( per curiam); State v. Hall, 2010- 1516 ( La. App. 4th Cir. 4/ 18/ 11),

64 So. 3d 339, 342. If the trial court finds that the twenty-year sentence under La.

R. S. 15: 529. 1 ( A)(4)( b) would be constitutionally excessive pursuant to the criteria

set forth in Dorthey, then the trial court shall state for the record the reasons for

such finding and shall impose the most severe sentence that is not constitutionally

excessive. See La. R.S. 15: 529. l( I).2

Based on the foregoing, we vacate the defendant' s life sentence. We remand

2 Because the defendant will be resentenced, his second assignment of error on the excessiveness
of his life sentence is moot.
6

to the trial court for resentencing. Prior to sentencing, the trial court is to conduct a

sentencing hearing to allow the defendant the opportunity to demonstrate that the

twenty-year mandatory minimum sentence pursuant to La. R.S. 15: 529. 1( A)(4)( b)

would be constitutionally excessive as applied to him.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION
AFFIRMED; DEFENDANT' S LIFE SENTENCE VACATED; AND
REMANDED FOR RESENTENCING AND FOR SENTENCING HEARING
TO DETERMINE IF TWENTY-YEAR MANDATORY MINIMUM
SENTENCE PURSUANT TO LA. R.S. 15: 529. 1( A)(4)( b) IS
CONSTITUTIONALLY EXCESSIVE.

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STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 1028

STATE OF LOUISIANA

VERSUS

MARLON D. HARWELL

McClendon, 7., dissenting in part.

I agree with the majority's decision to vacate the defendant's life sentence.

However, rather than remanding to the trial court for resentencing, I would resentence

the defendant to twenty years imprisonment at hard labor without benefit of probation

or suspension of sentence. See LSA- R. S. 15: 529. 1( G). I would accordingly remand this

matter to the trial court for amendment of the minutes and commitment order.