STATE EX REL. JOHN ESTEEN
STATE OF LOUISIANA
SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT FOR THE PARISH OF JEFFERSON
John Esteen, along with 22 others, was charged with several
drug and racketeering offenses committed in 1998 and 1999.
Relator was ultimately found guilty of two counts of
possession of cocaine over 400 grams, conspiracy to possess
cocaine over 400 grams, and attempted possession of cocaine
over 400 grams. The district court sentenced him to
consecutive terms of imprisonment at hard labor totaling 150
years. His convictions and sentences were affirmed on appeal.
State v. Esteen, 01-0879 (La. App 5 Cir. 5/15/02),
821 So.2d 60, writ denied, 02-1540 (La. 12/13/02),
831 So.2d 983.
2016, relator filed a motion to correct illegal sentences
seeking the benefit of more lenient penalty provisions that
were enacted by the legislature in 2001 La. Acts 403
(effective June 15, 2001), which the legislature later
declared in La.R.S. 15:308(B) (effective May 16, 2006)
"shall apply to the class of persons who committed
crimes, who were convicted, or who were sentenced" in
accordance with enumerated provisions, including those
pursuant to which relator was sentenced on three counts. The
district court denied the motion and the court of appeal
denied writs, relying on State v. Dick, 06-2223 (La.
1/26/07), 951 So.2d 124.
State v. Dick, this court was faced with an apparent
conflict between La.R.S. 15:308(B) and (C) because the former
mandated retroactive application of reduced penalties to
offenders already sentenced while the latter entitled
offenders to seek the benefit of the ameliorative sentencing
provisions from the Louisiana Risk Review Panel.
Dick, 06-2223, pp. 9-10, 951 So.2d at 130-31. In
light of this conflict, the court considered whether La.R.S.
15:308(B) granted district courts the authority to modify
previously imposed sentences by mandating retroactive
application of the reduced penalty provisions. A majority of
the court found that resentencing an offender in order to
retroactively apply the more lenient penalty provisions to an
offender whose conviction and sentence are final would be, in
effect, commutation of a legal and final sentence.
Dick, 06-2223, pp. 12-13, 951 So.2d at 132. The
Dick majority further found that the power of
commutation falls exclusively within the executive branch of
government. Id., 06-2223, p. 13, 951 So.2d at 132.
Therefore, the majority determined that the legislature,
which is aware of the constitutional separation of powers,
did not intend for La.R.S. 15:308(B) to confer that authority
on the district courts, and the majority further found that
an offender's exclusive remedy was to apply to the
Louisiana Risk Review Panel pursuant to former La.R.S.
15:308(C). Dick, 06-2223, pp. 13-15, 951 So.2d at
132-33. After Dick, the legislature repealed La.R.S.
15:308(C) and eliminated the Louisiana Risk Review Panel in
2012 La. Acts 123. Then, in 2014 La. Acts 340, the
legislature reenacted La.R.S. 15:308(C) so that it now
provides: "Such persons shall be entitled to apply to
the committee on parole pursuant to R.S. 15:574.2."
after the reenactment, the interpretative problem posed by
the apparent conflict between La.R.S. 15:308(B) and (C)
remains. Specifically, La.R.S. 15:308(B) mandates that the
ameliorative provisions shall apply retroactively to
offenders who are already sentenced while La.R.S. 15:308(C)
entitles an offender to apply to the committee on parole,
which will, "taking into consideration the risk of
danger the applicant would pose to society if released from
confinement, " issue a recommendation to the Board of
Pardons regarding "whether the applicant is
eligible for a reduction." La.R.S. 15:574.2(I)(1)
contends that La.R.S. 15:308(A) and (B) render his
sentences for possession of cocaine over 400 grams and
attempted possession of cocaine over 400 grams illegal.
Relator seeks correction of what he characterizes as now
illegal sentences pursuant to La.C.Cr.P. art. 881.5, which
provides, "On motion of the state or the defendant, or
on its own motion, at any time, the court may correct a
sentence imposed by that court which exceeds the maximum
sentence authorized by law." The state contends that
defendant is not entitled to be resentenced and his only
avenue for relief is through the committee on parole in
accordance with La.R.S. 15:308(C) in conjunction with La.R.S.
court erred in State v. Dick to the extent we
resolved the tension between these provisions by finding that
the only avenue to gain the benefit of the more
lenient penalty provisions retroactively is by application to
the Risk Review Panel at that time (subsequently amended to
authorize application to the committee on parole). Instead,
we find these provisions can be harmonized in a way that
avoids the separation of powers problem on which the holding
of Dick depended.
Dick, the majority equated the judicial amendment of
a final sentence in accordance with a retroactive legislative
act to "allow[ing] the judiciary to exercise the power
of commutation." Dick, 16-2223, p. 12, 951
So.2d at 132. That conclusion, however, failed to take into
account three principles. First, that it is the
legislature's "exclusive authority to determine
length of punishment for crimes classified as felonies."
Bosworth v. Whitley, 627 So.2d 629, 633 (La. 1993).
Second, that "[o]ne of the traditional, inherent and
exclusive powers of the judiciary is the power to sentence. .
. . [T]he fixing of penalties is purely a legislative
function, but the trial judge has the discretion to determine
the appropriate sentence within the sentencing range
fixed by the legislature." State v. Rome,
96-0991, pp. 3-4 (La. 7/1/97), 696 So.2d 976, 978 (emphasis
added, internal citations and footnote omitted). Third,
because the provisions of the Louisiana Constitution are not
grants of power but instead are limitations on the otherwise
plenary power of the people, exercised through the
legislature, the legislature may enact any legislation that
the constitution does not prohibit. M.J. Farms, Ltd. v.
Exxon Mobil Corp., 07-2371, p. 21 (La. 7/1/08), 998
So.2d 16, 31.
the power of commutation is bestowed on the executive branch,
"[a] pardon is a matter of grace from the state and a
function of the executive branch of government, not subject
to limitation or control from the other branches."
Bryant v. Louisiana State Pardon Bd., 378 So.2d 180,
181 (La.App. 1 Cir. 1979). In addition, there are no
restrictions on the exercise of the executive's
traditional prerogative to ameliorate harsh penalties
otherwise provided by law for offenders who have
proved their ability to rehabilitate in a custodial
environment." Bosworth, 627 So.2d at 633
the legislature, "[i]n the interest of fairness in
sentencing, " declared in La.R.S. 15:308(B) its
intention that the more lenient penalty provisions be applied
retroactively to those persons "who were sentenced
according to [listed provisions, including La.R.S.
40:967(F)(1)] prior to June 15, 2001, provided that such
application ameliorates the person's circumstances."
The declared interest in fairness in sentencing is not
equivalent to a matter of grace,  and nothing in La.R.S.
15:308 limits or controls the executive branch's exercise
of its prerogatives. Instead, the legislature exercised its
exclusive authority to determine the length of punishment for
crimes classified as felonies, and further declared those
more lenient penalties shall be applied retroactively to
those already sentenced. Nothing in the constitution
prohibits the legislature from enacting more lenient penalty
provisions and declaring they be applied retroactively in the
interest of fairness in sentencing.
time relator committed the offenses of possession of cocaine
over 400 grams and attempted possession of cocaine over 400
grams, the penalty provisions required that relator be
sentenced to terms of imprisonment at hard labor for not less
than 30 years and not more than 60 years, and not more than
30 years, respectively. See Esteen, 01-0879, pp.
25-26, 821 So.2d at 76. Relator was sentenced to 50 years
imprisonment at hard labor for each count of possession, and
to 25 years imprisonment at hard labor for attempted
possession. In 2001, La.R.S. 40:967(F)(1)(c) was amended to
reduce the penalty for possession of cocaine over 400 grams
to 15 to 30 years (and thereby reduce the penalty for the
attempted offense to not more than 15 years. Therefore, three
of relator's sentences are for terms of imprisonment that
are no longer authorized by law.
Louisiana law, the term "illegal sentence" is
"primarily restricted to those instances in which the
term of the prisoner's sentence is not authorized by the
statute or statutes which govern the penalty for the crime of
conviction." Montgomery v. Louisiana, 577 U.S.
___, ___, 136 S.Ct. 718, 726, 193 L.Ed.2d 599 (2016)
(internal quotes omitted) (quoting State v. Mead,
14-1051, p. 3 (La.App. 4 Cir. 4/22/15), 165 So.3d 1044,
1047). Because three of relator's sentences are for terms
of imprisonment that are no longer authorized by law, and a
more lenient penalty provision applies retroactively in
accordance with La.R.S. 15:308(B), relator's remedy is by
resentencing in the district court pursuant to his motion to
correct illegal sentences. Accordingly, we reverse the district
court's denial of relator's motion and remand for
resentencing on these three counts pursuant to the more
lenient penalty provisions that were enacted by the
legislature in 2001 La. Acts 403, which the legislature later
declared in La.R.S. 15:308(B) apply retroactively under the
circumstances enumerated in that section.
JOHNSON, C.J. additionally concurs and assigns reasons.
agree with the majority opinion, which correctly overrules
this court's opinion in State v. Dick, 06-2223
(La. 1/26/07), 951 So.2d 124. I dissented in Dick,
believing the majority in that case ignored a clear mandate