WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT,
PARISH OF JEFFERSON
JOHNSON, C.J. would grant defendant's writ application
and assigns reasons.
case demonstrates the problems associated with blind
application of habitual offender laws by our sentencing
courts. In this case, Willie J. Ellison, Jr., pled guilty to
one count of possession with intent to distribute heroin and
another count of possession with intent to distribute
cocaine. According to the terms of the plea agreement, Mr.
Ellison was advised that if he appeared for sentencing on
September 22, 2010, and registered with the home
incarceration office in the interim, he would receive two
concurrent 15-year sentences as a second-felony offender.
However, if Mr. Ellison failed to comply with the term of the
plea deal, the State would file a habitual offender bill of
information charging him as a fourth-felony offender and
defendant would face a sentencing range of 50 years to life
imprisonment, based on his three prior guilty pleas to
possession of cocaine.
Ellison failed to register with the home incarceration office
and failed to appear for sentencing on September 22, 2010.
With respect to Mr. Ellison's failure to appear, his
counsel explained to the court that Mr. Ellison's infant
daughter had undergone surgery and was only released from the
hospital on the date he was required to appear in court.
There is apparently documentation in the record to verify the
child's hospitalization and surgery. See State v.
Ellison, 2012 WL 6864439 (2012). Additionally, Mr.
Ellison appeared before the sentencing court days later on
September 28, 2010, and filed a motion to withdraw his guilty
pleas. Upon denial of this motion, the sentencing court
fulfilled its promise in the plea agreement and re-sentenced
Mr. Ellison to 30 years imprisonment at hard labor on count
one, with the first five years to be served without benefit
of parole, probation, or suspension of sentence, and 20 years
imprisonment on count two, with the first two years to be
served without benefit of parole, probation, or suspension of
sentence, and ordered that the sentence run consecutively.
Ellison appealed and those sentences were vacated. A lengthy
and complex procedural history ensued. Over the course of
almost eight years, Mr. Ellison has been re-sentenced at
least five times, resulting from numerous appeals by either
him or the State. After much debate by the lower courts, Mr.
Ellison was most recently re-sentenced as a fourth-felony
offender to 50 years without benefit of parole, probation, or
suspension of sentence on count one, and a concurrent
sentence on count two of 15 years imprisonment, of which the
first two years are without benefit of parole, probation, or
suspension of sentence.
majority now denies review of Mr. Ellison's writ
application seeking review of his sentences, which were
enhanced by 35 years simply because he failed to appear on a
specific date almost 10 years ago when his daughter was
hospitalized. For the following reasons, I would grant Mr.
Ellison's writ application.
view, defendant's reason for not appearing, which was
verified and in the record, was reasonable and should have
been considered by the sentencing court. Habitual offender
laws are designed to counter criminal recidivism and should
be applied as a consequence for repeat offenses and not for
failure to appear and other technical violations. Sentencing
courts have broad discretion when applying these laws. Since
previous felony convictions are a prerequisite for
application of habitual offender laws, the nature and scope
of previous convictions should be given great weight by the
sentencing court. If the previous convictions are all
non-violent offenses, then the sentencing court should use
its broad discretion to apply penalties with leniency. Mr.
Ellison's previous offenses are all non-violent drug
expressed my disagreement with the routine overuse of
habitual offender proceedings by district attorneys. In my
dissent in State v. Guidry, I explained:
The prosecuting attorneys in Orleans Parish routinely wield
the Habitual Offender Law, both during pre-trial plea
negotiations and, in the event that tactic fails to yield a
guilty plea, after obtaining a conviction at trial, to secure
the harsher punishment of even non-violent offenders.
The Pew Charitable Trusts have examined the Habitual Offender
Law and its impact on Louisiana's incarceration
and found the number of newly-sentenced defendants who have
received substantially enhanced punishments under the law has
more than doubled over the past 10 years.
*** Although the law represents an important means of
protecting public safety and punishing recidivism, this data
reveals the unfortunate truth that the weightiest penalties
are not being reserved for the most serious crimes or the
most dangerous offenders, particularly in Orleans Parish. To
the contrary, drug possession is the most common primary
offense for newly-sentenced prisoners convicted under the
Habitual Offender Law.According to the Louisiana Legislative
Auditor's Office, 78% of habitual offender convictions
are for non-violent offenses, though some of those offenders
may have had prior violent offenses.
16-1412 (La. 3/15/17), 221 So.3d 815, 826-27 (J, dissenting).
mitigating factor that must be considered by the sentencing
court is the nature of the previous convictions in contrast
with the nature of the instant offense. As a matter of public
policy, in America we now recognize in a nation stricken with
individuals suffering from drug addictions, habitual offender
laws should be cautiously applied when each of a
defendant's previous felonies are drug offenses. Here,
each of Mr. Ellison's previous felony convictions were
for the same non-violent offense, possession of cocaine.
While this Court cannot instruct the lower courts to apply
leniency to handle all drug offenses when adjudicating
defendants as habitual offenders, when the pattern of drug
addiction is clear based on defendant's previous
convictions the sentencing court should consider the
long-term effect of whether harsher sentences would directly
result in less drug use.
on numerous occasions pointed out the stark disparity that
exists in the treatment of individuals addicted to opioids
compared to those addicted to illicit substances, such as