State of Louisiana v. Michael W. Colton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-252

STATE OF LOUISIANA

VERSUS

MICHAEL W. COLTON

**********
APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-216-06
HONORABLE HERMAN I. STEWART, JR., PRESIDING
**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of Sylvia R. Cooks, Oswald A. Decuir and Billy H. Ezell, Judges.

Cooks, J., dissents in part and assigns reasons.

AFFIRMED AS AMENDED AND
REMANDED WITH INSTRUCTIONS.

David W. Burton, District Attorney
Richard A. Morton, Assistant District Attorney
36th Judicial District Court
P.O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Sherry Watters
Louisiana Appellate Project
P.O. Box 58769
New Orleans, LA 70158-8769
(504) 599-0931
COUNSEL FOR DEFENDANT-APPELLANT:
Michael W. Colton

DECUIR, Judge.

On August 10, 2005, the Defendant, Michael W. Colton, sold 0.10 grams of

rock cocaine to undercover officer Marie Potter in DeRidder, Louisiana. A bill of

information was filed charging Defendant with distribution of cocaine, in violation

of La.R.S. 40:967. A jury found him guilty as charged.

The State filed a habitual offender bill, and the trial court conducted a hearing,

finding Defendant to be a fourth offender. The trial court sentenced Defendant to life

imprisonment. The court denied his motion to reconsider sentence.

Defendant now appeals his conviction, adjudication as a habitual offender, and

sentence. He assigns four errors.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there is

one error patent involving the sentence imposed.

Prior to imposing Defendant’s sentence, the judge stated, “The Court now

adjudicates you to be a fourth felony habitual offender, pursuant to the Louisiana

Habitual Offender Law, R.S. 15:529.1A(1)(c)(ii), and further finds you are not

entitled to diminution of sentence for good behavior under R.S. 15:571.3C(1), (2) and

(3).” When imposing Defendant’s sentence the judge stated, “It is the sentence of the

Court that you, Michael W. Colton, be incarcerated at hard labor with the Department

of Corrections for the remainder of your natural life. You shall not be entitled to

diminution of sentence for good behavior as provided in R.S. 15:571.3C(1), (2) and

(3).” Later, when clarifying a point for the prosecutor, the judge reiterated that

Defendant was not entitled to diminution of sentence for good behavior.

This court has held that similar language was not merely a La.Code Crim. P.

art. 894.1(D)(1) advisement, but was an actual denial of eligibility for diminution of

sentence. See State v. Davis, 05-543 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, writ

denied, 06-587 (La. 10/13/06), 939 So.2d 372. La.R.S. 15:571.3(C) is directed

exclusively to the Department of Corrections and prohibits the department from

granting good time to defendants who have been adjudicated an habitual offender.

State v. Narcisse, 97-3161 (La. 6/26/98), 714 So.2d 698. Therefore, a trial judge does

not have authority to deny diminution of sentence under that provision. Id.

Accordingly, we find the trial court’s statements regarding diminution was improper

and Defendant’s sentence is hereby amended to delete the trial court’s statements

regarding diminution eligibility. Additionally, the district court is instructed to make

an entry in the minutes reflecting this amendment.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant alleges his trial counsel had a

conflict of interest that prevented the effective representation of his interests and

rights. He claims his trial counsel, Charles A. “Sam” Jones III, prosecuted him for

one of the prior offenses for which he was habitualized. The State responded that

Defendant, through his appellate counsel, is “arguing facts which are not in the record

and/or which are simply not true.”

As the State points out, the transcript of Defendant’s guilty plea on September

14, 1989 shows that trial counsel Jones was not involved in the plea, even though the

minutes for that date show he was present. It is well-settled that when minutes and

a transcript conflict, the transcript controls. Thus, Defendant’s assignment lacks

factual support.

2

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant argues his habitual offender

sentence is unconstitutional, because it was a life sentence and the habitual offender

proceedings were not instituted by a grand jury.

As the State observes in its brief, Defendant failed to make this objection at

trial. Therefore, he may not raise it for the first time on appellate review.

“Constitutional issues are no exception.” State v. Williams, 02-1030, p. 7 (La.

10/15/02), 830 So.2d 984, 988. The Williams case included challenges to the

constitutionality of a particular evidentiary statute which the supreme court declined

to address.

Additionally, the assignment lacks substantive merit. The Louisiana

Constitution does not require a grand jury indictment for habitual offender

proceedings. State v. Jolla, 337 So.2d 197 (La.1976); State v. Maduell, 326 So.2d

820 (La.1976); and State v. Williams, 326 So.2d 815 (La.1976).

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant argues the habitual offender

proceeding was unconstitutional because it caused his sentence to be enhanced based

upon factual determinations made by the judge, rather than the jury. Defendant cites

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), rehearing denied, 542

U.S. 961, 125 S.Ct. 21 (2004) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738

(2005), for the proposition that facts used to enhance a sentence should be found by

the jury, rather than the judge. However, the Supreme Court has excepted the

existence of prior convictions from this requirement. Almendarez-Torres v. United

States, 523 U.S. 224, 118 S.Ct. 1219 (1998); Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348 (2000).

3

As recently as April 18, 2007, in James v. United States, __ U.S. __, 127 S.Ct.

1586 (2007), the Supreme Court indicated, albeit in its eighth footnote, that the prior

convictions exception remains extant. Therefore, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

In his final assignment of error, Defendant argues his life sentence is excessive.

The trial court found Defendant to be a fourth habitual offender; thus, a life sentence

was mandated by La.R.S. 15:529.1(A)(1)(c)(ii). Defendant made an oral objection

to the sentence, without elaboration. In his subsequent written motion to reconsider

sentence, Defendant again failed to specify a legal basis for the motion. Thus, he is

now limited to review of a bare claim of excessiveness. La.Code Crim.P.

arts.881.1(B), (E); 881.2(A)(1). In a review of an appeal by the State, this court

explained the analysis for such excessiveness claims under La.R.S. 15:529.1:

In State v. Johnson, 97-1906, pp. 6-8 (La.3/4/98); 709 So.2d 672,
674-77 . . . , the supreme court addressed the circumstances under which
State v. Dorthey, 623 So.2d 1276 (La.1993), would permit a downward
deviation from a statutorily-mandated sentence:

In State v. Dorthey, supra, this 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.” Id. at 1280-81.
Finding a mandatory minimum sentence constitutionally
excessive requires much more, though, than the mere
utterance of the phrases above.

A sentencing judge must always start with the
presumption that a mandatory minimum sentence under the
Habitual Offender Law is constitutional. See State v.
Dorthey, supra at 1281 (Marcus, J., concurring); State v.
Young, supra [94-1346 (La.App. 4 Cir. 10/26/95); 663
So.2d 525]. A court may only depart from the minimum
sentence if it finds that there is clear and convincing
evidence in the particular case before it which would rebut
this presumption of constitutionality.

4

A trial judge may not rely solely upon the
non-violent nature of the instant crime or of past crimes as
evidence which justifies rebutting the presumption of
constitutionality. While the classification of a defendant’s
instant or prior offenses as non-violent should not be
discounted, this factor has already been taken into account
under the Habitual Offender Law for third and fourth
offenders. LSA-R.S. 15:529.1 provides that persons
adjudicated as third or fourth offenders may receive a
longer sentence if their instant or prior offense is defined
as a “crime of violence” under LSA-R.S. 14:2(13). Thus
the Legislature, with its power to define crimes and
punishments, has already made a distinction in sentences
between those who commit crimes of violence and those
who do not. Under the Habitual Offender Law those third
and fourth offenders who have a history of violent crime
get longer sentences, while those who do not are allowed
lesser sentences. So while a defendant’s record of
non-violent offenses may play a role in a sentencing
judge’s determination that a minimum sentence is too long,
it cannot be the only reason, or even the major reason, for
declaring such a sentence excessive.

Instead, 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.

Young, 94-1636 at pp. 5-6, 663 So.2d at 528
(Plotkin, J., concurring).

When determining whether the defendant has met his
burden of proof by rebutting the presumption that the
mandatory minimum sentence is constitutional, the trial
judge must also keep in mind the goals of the Habitual
Offender Law. Clearly, the major reasons the Legislature
passed the Habitual Offender Law were to deter and punish
recidivism. Under this statute the defendant with multiple
felony convictions is treated as a recidivist who is to be
punished for the instant crime in light of his continuing
disregard for the laws of our state. He is subjected to a
longer sentence because he continues to break the law.
Given the Legislature’s constitutional authority to enact

5

statutes such as the Habitual Offender Law, it is not the
role of the sentencing court to question the wisdom of the
Legislature in requiring enhanced punishments for multiple
offenders. Instead, the sentencing court is only allowed to
determine whether the particular defendant before it has
proven that the mandatory minimum sentence is so
excessive in his case that it violates our constitution.

....

Johnson, 709 So.2d 672, clearly states that a non-violent history
cannot be the major reason for a downward deviation. At the
reconsideration hearing the trial court acknowledged Johnson, but then
relied upon Defendant’s non-violent history as the main reason for its
downward deviation. The only other factor in the trial court’s reasons
was its view of policy considerations. However, as explained in
Johnson, policy decisions regarding habitual offenders have already
been made by the legislature. We, therefore, find merit in the State’s
assignments of error.

State v. Calhoun, 00-614, pp. 17-20 (La.App. 3 Cir. 11/2/00), 776 So.2d 1188,

1198-1200, writ denied, 00-3309 (La. 10/26/01), 799 So.2d 1151.

At the sentencing hearing in the present case, the court explained:

The Court ordered and received a pre-sentence investigation
report from the Department of Probation and Parole, even though in this
case there is mandatory life imprisonment sentence required. The PSI
reflects that in addition to the four felony convictions described above,
you also committed and were convicted of numerous misdemeanors,
including simple battery, disturbing the peace, possession of drug
paraphernalia, criminal neglect of family, theft of goods and resisting an
officer. You are now 40 years of age; and for no substantial period
during your adult life have you not been either incarcerated, on parole
or on probation. In short, you have lived a life of crime.

The mandatory sentence prescribed in R.S. 15:529.1 is found by
this Court to be not constitutionally excessive, nor is it inappropriate or
unlawful. Further[,] the Court specifically finds that the sentence is
neither cruel nor unusual.

Defendant has failed to demonstrate that he is “exceptional” pursuant to

Johnson and Young. He testified at the habitual offender hearing, but he focused on

claiming that he was innocent of the underlying offense. At the end of his testimony,

6

he admitted being a drug user, and claimed to be an addict, but denied having sold

drugs since 1993.

We find Defendant’s unsupported claim that he is merely a drug user, rather

than a drug distributor, is negated by his most recent conviction. The fifth circuit has

held that a defendant’s bare claim that he is a non-violent addict will not render the

mandatory minimum sentence of La.R.S. 15:529.1 excessive. State v. Harbor,

01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 227, writ denied, 02-1489 (La.

5/9/03), 843 So.2d 388.

Pursuant to the jurisprudence discussed, we conclude the assignment lacks

merit.

DECREE

Defendant’s conviction is affirmed; his sentence is amended to delete the trial

court’s statements regarding diminution eligibility. The case is remanded and the

district court is instructed to make an entry in the minutes reflecting this amendment.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

7

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-252

STATE OF LOUISIANA

VERSUS

MICHAEL W. COLTON

COOKS, J., dissents in part.

I agree with the majority’s affirmance of Defendant’s conviction and habitual

offender adjudication. However, I find there is merit to Defendant’s assignment of

error that his life sentence is excessive. A review of the record indicates Defendant’s

prior felony offenses involved small, street level sales of cocaine and one theft of

livestock. The underlying offense in this case was the selling of .10 grams of rock

cocaine for twenty dollars. In my opinion the record clearly establishes Defendant

is a drug addict, and that his addiction causes his recidivism. Therefore, I find the

sentence of life imprisonment without benefit of probation, parole or suspension was

excessive and constitutes cruel and unusual punishment.

The Fourth Circuit in State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723

So.2d 1013, writ denied, 98-3054 (La. 4/1/99), 741 So.2d 1282, and State v.

Stevenson, 99-2824 (La.App. 4 Cir. 3/15/00), 757 So.2d 872, writ denied, 00-1061

(La.11/17/00), 773 So.2d 734, noted that where a sentence of life imprisonment is

involved, heightened scrutiny is triggered in determining if a downward departure

from the statutory minimum is warranted. The court in Burns stated:

Here the defendant has much more at stake than did the defendant in
Johnson. In this case, the defendant will spend the rest of his life in jail
because of the mandatory life sentence imposed. . . .

Whenever a defendant is faced with a mandatory life sentence as a
multiple offender, heightened scrutiny is triggered when determining

if defendant falls within those “rare” circumstances where a downward
departure is warranted. [Emphasis added.]

Id., p. 8, 723 So.2d at 1019.

The defendant in Burns was observed by police selling one rock of crack

cocaine to a third person. When arrested, the defendant was in possession of two

more rocks and fifty-seven dollars. The defendant testified at trial that he was

addicted to cocaine. Noting that two of the defendant’s prior convictions were for

possession of cocaine, the Burns court concluded, “thus it is safe to assume he deals

to support his habit.” Id. at p. 9, 723 So.2d at 1019. The defendant was twenty-five

years old, and the court felt the defendant was “young enough to be rehabilitated.”

Though recognizing that the simple fact that none of the defendant’s felonies were

non-violent was insufficient alone to override the legislatively designated sentence

under the Habitual Offender Law, the court in Burns cited Johnson for the

proposition that this fact should not be discounted. The court also cited two

economic impact considerations that the defendant would never be a productive

taxpayer in prison, and that life imprisonment imposes an undue burden on taxpayers

of the state who must feed, house, and clothe the defendant for life, and provide

geriatric care in later years. The court vacated the life sentence finding that, on the

facts pertaining to that defendant, it was “unable to conclude that this life sentence

is not excessive under the constitutional standard.”

Similarly, in Stevenson the Fourth Circuit placed great weight on the fact that

a life sentence was involved:

A life sentence forever closes the door of hope that this young defendant
might one day learn from his past mistakes and ready himself to become
a productive participant in our society.

Stevenson, p. 5-6, 757 So.2d at 875.

In Stevenson, 99-2824 (La.App. 4 Cir. 3/15/00), 757 So.2d 872, writ denied,

00-1061 (La. 11/17/00), 773 So.2d 734, the Fourth Circuit reversed the mandatory

life sentence imposed upon a third-felony habitual offender, likening it to Burns. In

Stevenson, the defendant was a thirty-eight year old mother convicted of distribution

of one rock of crack cocaine, with prior convictions for felony theft and simple

burglary of an inhabited dwelling. No drugs were found on her person after her arrest

for distribution of cocaine. The court noted that, like the defendant in Burns, the

defendant in Stevenson had no record of violent crimes, nor was there any evidence

she had ever used a dangerous weapon. The court conceded that, unlike in Burns, the

defendant in Stevenson did not testify that she was a drug addict, and no one testified

in her behalf. However, the Stevenson court noted the trial court had ordered the

defendant to report to a substance program, and inferred the possibility that she, like

the defendant in Burns, was a drug addict who sold the cocaine to support her own

habit. The court concluded by stating:

In the case at bar, the life sentence imposed on this third offender
may not be proportionate to the crime for which she was convicted,
namely the selling of one rock of cocaine. Defendant does not have a
violent history and does not appear to have significant ties to drug
distributors. She may have been supporting a drug addiction with the
transaction; she is fairly young, and she is a mother. It must be
remembered that, if defendant does receive a life sentence, any hope for
her rehabilitation will vanish, and “the taxpayers of the state [will have
to] feed, house, and clothe [her] for life.” State v. Hayes, 97-1526
(La.App. 1 Cir. 6/25/99), 739 So.2d 301, 303. On the other hand, it
cannot be forgotten that defendant has had two prior chances to prove
herself capable of rehabilitation and has failed. She deserves severe, but
constitutional, punishment.

On the record before us, we are unable to conclude either that
defendant’s mandatory life sentence is constitutional or that there is
clear and convincing evidence to the contrary. Therefore, we vacate
defendant’s sentence and remand this case to the district court for a
hearing at which defendant may present evidence that she is
“exceptional ... 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.
Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528,
writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223 (Plotkin, J.,
concurring). The district court must also consider whether, in light of
the evidence presented by defendant--and any countervailing evidence
presented by the State--a mandatory life sentence, for this defendant,
makes no measurable contribution to acceptable goals of punishment, is

nothing more than the purposeless and needless imposition of pain and
suffering, and/or is grossly out of proportion to the severity of her crime.
Lobato, supra. If defendant succeeds in carrying her burden, the district
court, after carefully considering the evidence before it, shall use its
great discretion to sentence her to the longest sentence that is not
constitutionally excessive, i.e. to the maximum constitutional sentence.
Randall, 741 So.2d at 860.

Stevenson, at pp. 6-7, 757 So.2d at 875-76.

The result in Stevenson differs from that in Burns, because in Stevenson the

court found what was in the record may have suggested that the mandatory life

sentence might be unconstitutionally excessive, but because the evidence was

insufficient to definitely resolve the issue, the court vacated the sentence and

remanded the case to allow the defendant the opportunity to prove by clear and

convincing evidence that the mandatory minimum sentence under the Habitual

Offender Law is unconstitutionally excessive as applied to him. In Burns, the record

evidence was sufficient to definitively resolve the issue of excessiveness without a

remand.

In State v. Randall, 98-1763 (La.App. 3 Cir. 6/9/99), 741 So.2d 852, writ

granted, 99-2476 (La. 2/11/00), 754 So.2d 245, aff’d in part, reversed in part, 99-

2476 (La. 12/15/00), 776 So.2d 424, this court vacated the life sentence of a third

felony offender after finding it excessive as applied to a twenty-nine year old

convicted of simple robbery twice and illegal possession of stolen goods. We stated:

While defendant unquestionably deserves imprisonment, a life sentence
without benefit of parole, probation or suspension of sentence, would
defeat any rehabilitative goal of our penal system; and in this rare
instance, it is fundamentally excessive. The United States Supreme
Court has declared [that] the Eighth Amendment to the United States
Constitution bars excessive punishment, i.e., punishment that “(1) makes
no measurable contribution to acceptable goals of punishment and hence
is nothing more than the purposeless and needless imposition of pain
and suffering; or (2) is grossly out of proportion to the severity of the
crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53
L.Ed.2d 982 (1977). The Eighth Amendment bar also applies to
punishment imposed by state courts. Robinson v. California, 370 U.S.
660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Solem v. Helm, 463 U.S.
277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Supreme Court

invalidated a prison sentence on the ground that it was too severe in
relation to the crime defendant committed, stating:

In sum, we hold as a matter of principal that a criminal
sentence must be proportionate to the crime for which the
defendant has been convicted. Reviewing courts, of
course, should grant substantial deference to the broad
authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes,
as well as to the discretion that trial courts possess in
sentencing convicted criminals. But no penalty is per se
constitutional. As the court noted in Robinson v.
California, 370 U.S., at 667, 82 S.Ct., at 1420, a single day
in prison may be unconstitutional in some circumstances.

463 U.S., at 290, 103 S.Ct., at 3009 (footnote omitted).

Legislatively mandated minimum sentences, as well as those
imposed by trial courts within a statutory range, do not automatically
meet constitutional muster. We must review all sentences for
constitutionally prohibited excessiveness. A life sentence forever closes
the door of hope that this young defendant might one day learn from his
past mistakes and ready himself to become a productive participant in
our society. See, State v. Burns, supra. This State’s, as well as the
United States Constitution, prevents us from affirming such sentences,
even if legislatively ordered, based on this record.

Id., 741 So.2d at 859.

Although the Louisiana Supreme Court reversed our finding that the Defendant in

Randall had failed to show clearly and convincingly that he was 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, it did not take exception with the methodology set forth in that opinion.

In the present case, the life sentence imposed on Defendant is not proportionate

to the crime for which he was convicted, the selling of $20 worth of rock cocaine.

Defendant does not have a violent history and his selling of drugs was done to

support his addiction. If Defendant does receive a life sentence, any hope for his

rehabilitation is vanquished. While Defendant’s continual violation of the laws of

this State deserves harsh punishment, it must be constitutional.

On the face of the record before us, I am unable to conclude that this life

sentence is not excessive under the constitutional standard. I would therefore vacate

the sentence and remand for resentencing.