State of Louisiana v. Timothy E. Robertson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-167

STATE OF LOUISIANA

VERSUS

TIMOTHY E. ROBERTSON

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 04-575
HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

CONVICTION AND SENTENCE VACATED.
REMANDED FOR FURTHER PROCEEDINGS.

James Patrick Lemoine
District Attorney - Parish of Grant
James D. White, Jr.
Assistant District Attorney - Parish of Grant
P. O. Box 309
Colfax, LA 71417
Telephone: (318) 627-3205
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Richard Emile deVargas
506 Front Street
Natchitoches, LA 71457
Telephone: (318) 354-8222
COUNSEL FOR:
Defendant/Appellant - Timothy E. Robertson

THIBODEAUX, Chief Judge.

The Defendant, Timothy E. Robertson, appeals his jury conviction for

the creation or operation of a clandestine laboratory for the unlawful manufacture of

methamphetamine, second offense, in violation of La.R.S. 40:983(A)(3) and 40:982.

He challenges the sufficiency of the evidence presented at trial, the

denial of his motion to suppress, the trial court’s admission of evidence of other

crimes, and the denial of his motion to quash. Because we find merit in the

Defendant’s latter two contentions, we vacate the Defendant’s conviction and

sentence and remand for further proceedings. Louisiana Revised Statutes 40:9821

does not define a crime and should not have been included in the bill of information

as a substantive offense. We apply State v. Skipper, 04-2137 (La. 6/29/05), 906 So.2d

399 retroactively.

Defendant contends the State improperly included La.R.S. 40:982 in the

amended bill of information and that the presentation of evidence concerning his

prior conviction denied him a fair trial, in violation of Skipper, 906 So.2d 399. Thus,

he contends his motion to quash was improperly denied.

At the hearing on the motion to quash, the trial court, following

jurisprudence from this court, ruled that La.R.S. 40:982 had to be charged in the bill

of information as it was an element of the crime. After Defendant was convicted and

sentenced, the Louisiana Supreme Court issued its opinion in Skipper.

1
Louisiana Revised Statutes 40:982 reads in pertinent part:

A. Any person convicted of any offense under this part, if the
offense is a second or subsequent offense, shall be sentenced to a
term of imprisonment that is twice that otherwise authorized or to
payment of a fine that is twice that otherwise authorized, or both. If
the conviction is for an offense punishable under R.S. 40:966(B), R.S.
40:967(B), R.S. 40:968(B) or R.S. 40:969(B), and if it is the
offender’s second or subsequent offense, the court may impose in
addition to any term of imprisonment and fine, twice the special
parole term otherwise authorized.

In Skipper, the defendant filed a motion to quash the bill of information

charging him with a second drug offense under La.R.S. 40:982. The trial court

granted the motion to quash and the State appealed. The supreme court held:

[W]e hold that La.R.S. 40:982 should be treated as a
sentencing enhancement provision after conviction, like
La.R.S. 15:529.1, and not as a substantive element of the
presently-charged offense. Specifically, the allegations of
the prior offense must not be placed in the charging
instrument of the second or subsequent drug-related
offense nor may evidence of the prior offense be presented
to the jury determining the defendant’s guilt or innocence
in the trial of the second or subsequent drug-related offense
for the purpose of sentence enhancement under La.R.S.
40:982.

State v. Murray, 357 So.2d 1121 (La.1978), and any
appellate decisions, as discussed herein, which stand for
the proposition that a prior conviction must be placed in
the charging instrument of the second or subsequent
drug-related offense or proved to the jury in order to
enhance the sentence of a drug-related felony under
La.R.S. 40:982, are hereby overruled.

So finding, we hold that the trial court properly
granted the motion to quash the bill of information in this
matter as the state misapplied La.R.S. 40:982 by placing
the allegation of the prior offense in the bill of information.
The ruling of the trial court on the motion to quash is
AFFIRMED.

Id. at 416-17.

In reaching its conclusion, the Skipper court found that La.R.S. 40:982 “does not in

and of itself define a crime.” Id. at 416.

Skipper was in the pretrial stage when the issue concerning the inclusion

of the prior offense in the bill of information was raised. The supreme court noted

that it was not called upon to discuss the applicability of a harmless error analysis or

the “possible ameliorative effects of a limiting instruction post-Green, to

circumstances in which a prior offense was listed in the charging instrument, read to

the jury and of which evidence was presented at trial.” Id. at 416 n. 23.

2

The State points out that the status of Skipper is different than in this

case in that Skipper was decided pre-trial. It contends that a harmless error analysis

should be conducted and that the error was harmless in this case.

The Defendant in the present case had been convicted and sentenced

when the Skipper opinion was issued. Thus, we will first address whether the

decision should be retroactively applied to Defendant before proceeding with a

discussion of the applicability of a harmless error analysis.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert.

denied, 508 U.S. 962, 113 S.Ct. 2935 (1993), the supreme court traced the evolution

of United States Supreme Court cases addressing the retroactivity of new rulings to

cases final at the time the new ruling was rendered as well as those that were pending

on direct review at the time the new ruling was issued.2 In doing so, the supreme

court discussed Justice Harlan’s suggestion of a new test for retroactivity in Mackey

v. United States, 401 U.S. 667, 91 S.Ct. 1160 (1971):

Accordingly, he proposed a general principle
whereby “all constitutional errors not waived or harmless
are correctable on habeas and by defining such errors
according to the law in effect when a conviction became
final.” Id. at 692, 91 S.Ct. at 1179 (emphasis added).
Under this general principle, new rules would not be given
retroactive effect on collateral review, although they would
be applied to cases pending on direct review. However,
Justice Harlan created two exceptions in which he would
give retroactive effect to new rules on collateral review.
The first exception involved new substantive due process
rules—i.e., rules placing certain kinds of primary, private
individual conduct beyond the power of the criminal
lawmaking authority to proscribe. The second exception
referred to new rules which required observance of “those
procedures that . . . are implicit in the concept of ordered
liberty” and altered our understanding of the “bedrock
procedural elements” of a fair trial. . . .

2
In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708 (1987), the Supreme Court defined the
finality of a conviction as “a case in which a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for
certiorari finally decided.” Id. at 712 n. 6.

3

In the next several years, the Court began to
gradually move away from Linkletter and toward the
analysis suggested by Justice Harlan. The Court began by
adopting Justice Harlan’s view that a new rule should be
applied retroactively to all cases pending on direct review.
Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93
L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S.
537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Taylor v. Whitley, 606 So.2d at 1294.

The Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct.

708, 716 (1987), held that “a new rule for the conduct of criminal prosecutions is to

be applied retroactively to all cases, state or federal, pending on direct review or not

yet final, with no exception for cases in which the new rule constitutes a ‘clear break’

with the past.”

The Taylor court also discussed pertinent Louisiana court rulings on

retroactivity:

Turning now to our state law decisions on
retroactivity, we find they have also recognized the
principle that the constitution does not prohibit nor require
courts to give retroactive application to criminal law
decisions. State v. St. Pierre, 515 So.2d 769, 774
(La.1987). Our cases decided after Linkletter reflect the
confused state of the law under that case.

....

Subsequently, our cases have followed Griffith v.
Kentucky, supra, and have applied new rules to cases
pending on direct review or not yet final. See State v.
Sanders, 523 So.2d 209 (La.1988); State v. St. Pierre, 515
So.2d 769 (La.1987). In fact, we recently applied the Cage
rule to a case pending on direct appeal at the time Cage
was rendered. State v. Smith, 600 So.2d 1319, 1326 n. 5
(La.1992).

Taylor, 606 So.2d at 1296.

There are at least two more recent cases in which the supreme court and

second circuit, relying on Griffith, applied a new ruling to a case pending on appeal.

See State v. Naquin, 00-291 (La. 9/29/00), 769 So.2d 1170 and State v. Ford, 26,422
4

(La.App. 2 Cir. 9/21/94), 643 So.2d 293. Skipper, in our view, announced a “new

rule” in that the result in Skipper was not dictated by existing precedent.

In light of the foregoing jurisprudence, Skipper is retroactively applied

to Defendant’s case. When Skipper was decided, Defendant had been convicted and

sentenced and his motion to reconsider sentence was pending. Clearly, his conviction

was not yet final and the foregoing jurisprudence supports the retroactive application

of Skipper to his case.3 Thus, it was error for the State to include the prior offense in

the bill of information.

Because operation of a clandestine laboratory, second offense, is a “non-

crime,” as expressed in the jurisprudence, the conviction and sentence for a violation

of La.R.S. 40:982 should be vacated. Such convictions do not bar retrial pursuant to

double jeopardy protections. Therefore, we remand this case for further proceedings.

State v. Campbell, 95-1409 (La. 3/22/96), 670 So.2d 1212.

In Skipper, the defendant was originally charged by bill of information

with violating La.R.S. 40:967, and the State amended the bill to additionally charge

a violation of La.R.S. 40:982. Thus, it appears the amended bill contained both

charges. The trial court quashed the amended bill. Assuming that the amended bill

contained both charges, then by affirming the trial court’s ruling, the supreme court

apparently agreed that both charges should be quashed, rather than the La.R.S. 40:982

charge alone. In the past, the supreme court has held that only a portion of a bill

which contained a duplicitous charge needed to be quashed, rather than the entire bill.

See State v. Coody, 448 So.2d 100 (La.1984). Thus, the Skipper court’s decision to

3
It is unnecessary to decide in this case whether the ruling in Skipper should be retroactively
applied to a case in which the defendant’s conviction was final at the time the ruling was issued.

5

uphold the quashing of the amended bill implies that the supreme court views La.R.S.

40:967 and La.R.S. 40:982 as non-severable.4

We note that our court has recently applied Skipper retroactively and has

held that it is error to include a prior offense in the bill of information if a defendant’s

conviction is not yet final. State v. Senegal, 05-1633 (La.App. 3 Cir. 5/24/06), ___

So.2d ___.

CONCLUSION

Pursuant to Skipper, 906 So.2d 399, La.R.S. 40:982 does not state a

substantive crime. Therefore, the conviction and sentence are vacated. Since

Defendant was convicted of a non-crime, there is no double jeopardy bar to retrial.

See, e.g., Campbell, 670 So.2d 1212.

CONVICTION AND SENTENCE VACATED. REMANDED FOR

FURTHER PROCEEDINGS.

4
We decline the State’s invitation to apply a harmless error analysis to this case. Since the
statutes in the bill of information are not severable, the Defendant was convicted of a non-crime.
Hence, the harmless error analysis is inapplicable.

6