State of Louisiana v. David Wayne Sharp

Judgment rendered November 18, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,443-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DAVID WAYNE SHARP Appellant

*****

Appealed from the
Third Judicial District Court for the
Parish of Union, Louisiana
Trial Court No. 2016F53641

Honorable Thomas W. Rogers, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Meghan Harwell Bitoun

JOHN FITZGERALD BELTON Counsel for Appellee
District Attorney

CLIFFORD ROYCE STRIDER, III
E. MICHAEL MAHAFFEY
Assistant District Attorneys

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Before PITMAN, COX, and BLEICH (Pro Tempore), JJ.

BLEICH, J. (Pro Tempore), concurring in part and dissenting in part with
written reasons.

COX, J.

This appeal arises from the Third Judicial District Court, Union

Parish, Louisiana. The defendant, David Wayne Sharp, appeals his verdict

because it was rendered by a six-person jury, rather than a twelve-person

jury, which he contends is in violation of his federal Sixth and Fourteenth

Amendment rights. Mr. Sharp also appeals his designation as a fourth-

felony offender under the 2016 revision of La. R.S. 15:29.1. For the

following reasons, we affirm his conviction and vacate his sentence.

FACTS

On August 16, 2016, Mr. Sharp was charged by bill of information

with domestic abuse battery, third offense, of the victim, Tara Hunt (“Ms.

Hunt”), in violation of La. R.S. 14:35.3(A) and (E). The offense occurred on

either June 24, 2016 or June 30, 2016.1 Mr. Sharp previously pled guilty to

two prior domestic abuse battery charges.

On May 20-21, 2019, a six-person jury trial was held. Ms. Hunt

testified that she and Mr. Sharp previously had a romantic relationship, but

there were times when the pair would break up, which resulted in Mr. Sharp

leaving their shared home for extended periods of time. Ms. Hunt testified

that a few days before June 30, 2016, she and Mr. Sharp had an argument

and he left their home. When Mr. Sharp returned, they had another

argument, however, this time, Ms. Hunt attempted to leave. Ms. Hunt

testified that as she approached her car to leave, she realized she left her

phone, so she returned to the home to retrieve it. When she stepped onto the

1
As indicated in the bill of information, the offense occurred on June 24, 2016.
However, at trial, witnesses testified that the date of the offense was June 30, 2016.
Because there is no amended bill of information in the record, and police reports list the
dates of the offense as being both June 24 and June 30, 2016, it is uncertain when the
incident was reported.

porch, Mr. Sharp threw her down with considerable force, grabbed her by

her hair, clothing, feet, and ankles, and dragged her inside the house. Once

inside and the door closed, Mr. Sharp proceeded to strike Ms. Hunt with a

closed fist on her back, sides, and head before he threw her onto the couch.

Mr. Sharp was found guilty as charged by a unanimous six-person jury of

domestic abuse battery, third offense.

On May 23, 2019, the State filed a habitual offender bill charging Mr.

Sharp as a fourth felony offender based upon the following predicate

offenses:

1. On June 15, 2011, Mr. Sharp pled guilty to unauthorized entry
of an inhabited dwelling in violation of La. R.S. 14:62.3. Mr.
Sharp was sentenced to three years at hard labor and three years
of supervised probation.

2. On September 7, 2011, Mr. Sharp pled guilty to unauthorized
entry of an inhabited dwelling in violation of La. R.S. 14:62.3.
Mr. Sharp was sentenced to serve four years at hard labor.

3. On September 18, 2013, Mr. Sharp pled guilty to violation of a
protective order, third offense with battery, in violation of La.
R.S. 14:79(B)(3). Mr. Sharp was sentenced to serve one year at
hard labor, of which six months was to be served consecutively
with any parole revocation time.

On June 6, 2019, Mr. Sharp filed motions for a post-verdict judgment

of acquittal and a new trial, both of which were denied on June 19, 2019.

On August 21, 2019, a habitual offender hearing was held and Mr. Sharp

stipulated that he was convicted of the offenses listed in the habitual

offender bill. However, during the hearing, Mr. Sharp questioned whether

all of his predicate offenses fell within the appropriate cleansing period

under Louisiana’s Habitual Offender Law. On September 11, 2019, the trial

court found that the 2016 version of the Habitual Offender Law applied and

the appropriate cleansing period under this version of the law was ten years.

2

The trial court found that Mr. Sharp was correctly adjudicated as a fourth-

felony offender because the predicate offenses provided in the habitual

offender bill fell within the ten-year cleansing period. Mr. Sharp was

sentenced to 25 years at hard labor, with credit for time served, but without

the benefit of parole or suspension of sentence under La. R.S. 15:529.1(G).

Mr. Sharp now appeals his conviction and sentence.

DISCUSSION

Jury Composition

Mr. Sharp contends that the trial court deprived him of his

constitutional right to due process under the federal Sixth and Fourteenth

Amendments because his conviction and subsequent sentence was produced

from an unconstitutionally implemented six-person jury, rather than the

required twelve-person jury. Mr. Sharp concedes that the United States

Supreme Court, notably in Williams v. Florida, 399 U.S. 78, 103, 90 S. Ct.

1893, 1907, 26 L. Ed. 2d 446 (1970), established a long-established

precedent which declared that a defendant’s “Sixth Amendment rights, as

applied to the states through the Fourteenth Amendment, [is] not violated by

[the State’s] decision to provide a [six-man] rather than a [twelve-man]

jury.” Id. Mr. Sharp further acknowledges that the Louisiana Supreme

Court concurred with the Supreme Court’s holding in Williams, as provided

in State v. Jackson, 247 So. 2d 558 (1971).

Nevertheless, Mr. Sharp questions the constitutional viability of

convictions rendered by a jury of less than twelve jurors, and argues that,

“twelve-person juries are more likely to consist of a fair cross-section of

society, give pause to minority views, deliberate longer, and reach more

consistent verdicts than six-person juries.” Specifically, Mr. Sharp contests
3

that the Williams Court determination that six-person juries were the

functional equivalent of twelve-person juries was purely the result of

functionality, not historical context. Such a decision, he argues, has been

largely undermined by the Court’s jurisprudence throughout the last twenty

years, and there is no longer a clear answer to whether a jury of six is

constitutional.

Mr. Sharp first cites the Court’s decision in Apprendi v. New Jersey,

530 U.S. 480, 466 (2000), in which the Court discarded the functional

approach in favor of restoring the jury trial “practice” as it existed “at

common law” with respect to resolving questions of constitutional criminal

procedure. Id. See also, Crawford v. Washington, 541 U.S. 36 (2004) (the

Court overturned prior case law and held that the Sixth Amendment right to

confront witnesses required the exclusion of testimonial hearsay, regardless

of the reliability of that evidence.); Blakely v. Washington, 542 U.S. 296

(2004); Ring v. Arizona, 536 U.S. 584 (2002); and Jones v. United States,

526 U.S. 227, 246 (1999) (the Court warned of “secret machinations, which

may sap and undermine the right to [a] jury trial”).

Mr. Sharp further provides in Ballew v. Georgia, 435 U.S. 223 (1978),

that when the Court concluded that five-person juries failed to satisfy the

Constitution, it cast doubt on the viability of its holding in Williams and the

strength of the evidence used to uphold six-person juries as the functional

equivalent of twelve-person juries. As a result of nearly forty years of

empirical research, seemingly contradictory case law, and the Framers intent

for criminal petit juries to consist of twelve jurors, Mr. Sharp asserts that the

decisions in Williams and Jackson are no longer good law, because there is

“no discernible evidence” to demonstrate that twelve-person juries
4

outperform six-person juries. Thus, his conviction and sentence should be

reversed.

In contrast, the State argues that pursuant to La. C. Cr. P. art. 782, “[a]

case in which the punishment may be confinement at hard labor shall be

tried by a jury composed of six jurors, all of whom must concur to render a

verdict.” See, State v. Dahlem, 2014-1555 (La. 3/15/16), 197 So. 3d 676.

Given that the punishment for which Mr. Sharp was convicted, domestic

abuse, third offense, provides for a term which may be imposed with or

without hard labor, the State avers that the six-person jury trial was within

full compliance of Article 782. With respect to Mr. Sharp’s argument that

the failure to have a twelve-person jury in light of his twenty-five-year

sentence under a Habitual Offender Bill taints his due process rights, the

State deferred to the Louisiana Supreme Court’s holding in State v. Dahlem,

2014-1555 (La. 3/15/16), 197 So. 3d 676.

In Dahlem, the Court discussed a Habitual Offender sentence in which

a six-person jury was employed and held:

“Given that the enhanced sentence to which the evidence made
[the] defendant subject was not apparent on the face of the bill
of information, we specifically decline to create a duty
requiring a trial judge to look beyond the face of the bill of
information or the indictment, and the Title penalty range. Nor
is it the responsibility of a trial judge to interrogate the district
attorney or independently investigate as to what evidence might
be introduced that would require a different jury composition at
the outset of the case. Doing so would be inappropriate and
contrary to the efficient administration of criminal justice, and
effectively result in bad policy.”

The Louisiana Constitution art. I § 17 (A) provides, in pertinent part,

as follows:

A case in which punishment may be capital shall be tried by a
jury of twelve jurors, all of whom must concur to render a
verdict. A case for an offense committed prior to January 1,
5

2019, in which punishment is necessarily confinement at hard
labor shall be tried by a jury composed of twelve jurors, ten of
whom must concur to render a verdict. A case for an offense
committed on or after January 1, 2019, in which the punishment
is necessarily confinement at hard labor shall be tried before a
jury of twelve persons, all of whom must concur to render a
verdict. A case in which the punishment may be confinement
at hard labor shall be tried by a jury composed of six jurors, all
of whom must concur to render a verdict.

La. C. Cr. P. art. 782 provides that cases in which the punishment

may be confinement at hard labor shall be tried by a jury composed of six

jurors, all of whom must concur to render a verdict. La. R.S. 14:35.3 (A)

and (E) provide that a conviction for a third offense of domestic abuse

battery carries a term of imprisonment with or without hard labor. As the

law currently stands, a fact to which Mr. Sharp concedes from the holding in

Williams, a trial before a six-person jury for charges that do not

automatically carry with it a punishment of confinement at hard labor

remains constitutional. Therefore, Mr. Sharp’s claim does not warrant relief.

We affirm Mr. Sharp’s conviction.

Habitual Offender Statute

In his second assignment of error, Mr. Sharp argues that the trial court

misapplied the ten-year cleansing period of the habitual offender law in

adjudicating him as a fourth-felony offender. He argues the trial court

should have applied the five-year cleansing period to his predicate offenses.

Mr. Sharp contends that the habitual offender law provides that the five-year

cleansing period shall be used for defendants whose convictions were not

final prior to November 1, 2017. He argues that his conviction did not

become final until 2019, thus, the five-year cleansing period applies. Mr.

Sharp further attests that the trial court incorrectly applied the 2016 version

of the Habitual Offender Statute, La. R.S. 15.529.1, simply because the
6

offense in this case was committed on June 24, 2016. This application, he

asserts, is legal error because the 2016 version of the statue required a ten-

year cleansing period, while the 2017 version of the statute requires a five-

year cleansing period.

Mr. Sharp maintains that the trial court relied upon old law in applying

the ten-year cleansing period by citing a judgment that was rendered several

months prior to the effective date of Act 282, which provided that the

applicable cleansing period “is one in effect at the time the defendant

committed the following offense.” State v. Casaday, 51,947 (La. App. 2nd

Cir. 2018), 247 So.3d 1057. He argues that the trial court erroneously

concluded that “[a]ll [of Mr. Sharp’s] felonies occurred within the [ten] year

cleansing period set forth in La. 15:529.1(C) in effect on the date of the

offense, June 24, 2016.” The State argues that the evidence presented at Mr.

Sharp’s habitual offender hearing provides that he is considered a fourth-

felony offender under either the ten-year or five-year cleansing period. The

State provided that on June 15, 2011, Mr. Sharp was sentenced to

imprisonment for three years for his oldest predicate offense, and that the

offense in question occurred on June 24, 2016 or June 30, 2016. Therefore,

the State contends in their brief, that not more than five years elapsed between

the expiration of the correctional supervision for Mr. Sharp’s oldest predicate

offense and the commission of the current offense.

The State further argued that the trial did not commit legal error in

finding that Mr. Sharp is a fourth-felony offender because the 2016 version

of the Habitual Offender Statute, La. R.S. 15:529.1, invokes a ten-year

cleansing period. The State notes that Mr. Sharp did not contest the

sufficiency or admissibility of the evidence produced at his habitual offender
7

hearing, nor did he provide any evidence that his status as a fourth-felony

offender would change if the trial court implemented the five-year cleansing

period. The State, through Mr. Strider at the Multiple Offender

Hearing, notes that Mr. Sharp’s prior convictions were each within five

years of the date of the offense in question, except one conviction which

occurred, “within a couple [of] months of five years.” (Emphasis added).

On June 15, 2011, Mr. Sharp pled guilty to unauthorized entry of an

inhabited dwelling and was sentenced to imprisonment for three years and

three years of probation. On September 7, 2011, Mr. Sharp pled guilty to

unauthorized entry of an inhabited dwelling and was sentenced to four years

at hard labor. On September 18, 2013, he pled guilty to a violation of a

protective order-third offense with battery and was sentenced to one year of

hard labor without probation. Based on this information, the State then

argues that because Mr. Sharp was sentenced on June 15, 2011 for his oldest

predicate offense, and that the offense in the present case occurred on June

24, 2016 or June 30, 2016, five years had yet to elapse between the date of

the current offense and the expiration of his imprisonment as alleged in the

multiple offender bill under LA. R.S. 15:529.1(C)(1). The State argues that

the trial court’s reliance upon the ten-year cleansing period was mere

harmless error because the outcome would have been the same.

The Louisiana Supreme Court in State v. Lyles, 2019-00203 (La.

10/22/19) 286 So. 3d 407, addressed the effective date of the 2017

amendments to Louisiana’s Habitual Offender Law as well as Subsection K,

added by Act 542 of 2018. In Lyles, the defendant committed aggravated

battery on February 1, 2015. Because the defendant had two prior predicate

offenses, a 1991 distribution conviction and a 2004 manslaughter conviction,
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the State filed a third-felony habitual offender bill of information on

November 16, 2016. The defendant was later adjudicated as a third-felony

offender on February 13, 2017 and given a sentence of life imprisonment in

accordance with the 2015 habitual offender provisions. On appeal, the

defendant relied on Section 2 of Act 282, which provided that “[t]his Act

shall become effective November 1, 2017, and shall have prospective

application only to offenders whose convictions became final on or after

November 1, 2017.” The defendant argued that the 2017 amendments

should have been applied because he was subject to a five-year cleansing

period.

In addressing the defendant’s position, the Court considered whether

the defendant’s habitual offender status and sentence were governed by

either: (1) La. R.S. 15:529.1 as it existed at the time the offense was

committed on February 1, 2015, (2) the 2017 amended La. Acts 282, or (3)

the 2018 amended La. Acts 542. The Court first noted that, “the relevant

portion of Act 282 provides: “This Act shall become effective November 1,

2017, and shall have prospective application only to offenders whose

convictions became final on or after November 1, 2017.” 2017 La. Acts

282, § 2. Act 542 added new Subsection (K) to R.S. 15:529.1:

K. (1) Except as provided in Paragraph (2) of this Subsection,
notwithstanding any provision of law to the contrary, the court
shall apply the provisions of this Section that were in effect on
the date that the defendant's instant offense was committed.

(2) The provisions of Subsection C of this Section as amended
by Act Nos. 257 and 282 of the 2017 Regular Session of the
Legislature, which provides for the amount of time that must
elapse between the current and prior offense for the provisions
of this Section to apply, shall apply to any bill of information
filed pursuant to the provisions of this Section on or after
November 1, 2017, accusing the person of a previous
conviction.
9

2018 La. Acts 542, § 1 (effective August 1, 2018).

The Lyles Court then concluded that, “from the plain language of these

provisions in conjunction with the effective dates of the acts, the legislature

appears to have created three categories of persons potentially affected by

these provisions:

1. There are persons—like the present defendant—whose
convictions became final on or after November 1, 2017, and
whose habitual offender bills were filed before that date. Those
defendants would be eligible to receive the benefits of all
ameliorative changes made by Act 282.

2. There are persons whose convictions became final on or after
November 1, 2017, and whose habitual offender bills were filed
between that date and August 1, 2018 (the effective date of Act
542). Those persons would be eligible to receive the benefit of
the reduced cleansing period, and they may also colorable
claims to the other ameliorative changes provided in Act 282,
although we need not decide that question today.

3. Finally, there are persons whose convictions became final on or
after November 1, 2017, and whose habitual offender bills were
filed on or after August 1, 2018. They would receive the
reduced cleansing period by operation of Subsection K(2)
added by Act 542 but their sentences would be calculated with
references to the penalties in effect of the date of commission in
accordance with Subsection K(2) added by Act 542.

Lyles, supra.

The Lyles Court held that, “for persons like [Lyles], whose

convictions became final on or after November 1, 2017, and whose habitual

offender bills were filed prior to that date, the full provisions of Act 282

apply.”

In the present case, Mr. Sharp committed the offense in question in

2016, however, his conviction occurred in 2019, and his habitual offender

bill was not filed until 2019. Under the facts provided in Lyles, Mr. Sharp

falls within category three. Specifically, Mr. Sharp’s habitual offender

10

adjudication and sentencing occurred before the opinion in Lyles was

rendered and the trial court applied the ten-year cleansing period as provided

in the 2016 version of the habitual offender law. Accordingly, the trial court

must now contemplate whether Subsection K(2) added by Act 542 will have

any effect upon the applicable cleansing period. Furthermore, the trial court,

according to the transcript, failed to properly advise Mr. Sharp of the

prescriptive periods within which he must apply for post-conviction relief.

As such, we are required to vacate Mr. Sharp’s sentence and remand the case

to the trial court for resentencing in consideration of Lyles, supra and so Mr.

Sharp can be advised of his post-conviction rights.

CONCLUSION

For the aforementioned reasons, Mr. Sharp’s conviction is affirmed.

Pursuant to the changes made under La. R.S. 15:529.1 of the Habitual

Offender law, his sentence must be vacated and the case remanded back to

the trial court to be resentenced according to the changes made by the

legislature and interpreted by the Louisiana Supreme Court in Lyles and so

that Mr. Sharp can be advised of his post-conviction rights.

CONVICTION AFFIRMED; SENTENCE VACATED AND

CASE REMANDED FOR RESENTENCING.

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BLEICH, J. (Pro Tempore), concurring in part and dissenting in part.

This writer concurs with the majority opinion as to the “12-person”

jury trial issue.

Counsel for the defendant never raised that issue or made that request

prior to jury selection, thus making such a request at the appellate level

inappropriate as having been waived. There is no statutory or jurisprudential

authority for a 12-person jury in a relative felony, either at the trial on the

merits or in a habitual offender proceeding. To create such a rule would

invade the province of the legislature and wreak havoc in the criminal justice

system.1

In this appeal, the defendant might be attempting to create new law,

but this Court cannot legislate. The well-written majority opinion is clearly

correct as to this issue.

This writer respectfully dissents concerning remanding the case to the

trial court.

This writer agrees with the State’s argument in its brief regarding the

applicable cleansing period. It appears that the dates of the defendant’s

release from actual custody or supervision by the State on the predicate

offenses for the habitual offender bill were well within five years of the date

of the commission of the instant offense. Regardless of the applicable

“cleansing period,” ten years or five years, we have before us the proverbial

phenomenon of a “distinction without a difference,” as under either

1
One can easily envision certain anomalies. One example could be the
requirement of a 12-person jury being empaneled on many relative felony cases, even
when a habitual offender proceeding is not invoked. Another example of a bizarre result
would be having to empanel two separate juries, one for the trial, the other for
sentencing. Either of these would be costly and inefficient, and a disruption of the
administration of justice.

1

cleansing period, the result in this case is properly the same. The sentence

should be affirmed without remand.

2