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State v. Ellison

Supreme Court of Louisiana

October 29, 2018

STATE OF LOUISIANA
v.
WILLIE J. ELLISON, JR.

          ON 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.

         This 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.

         Mr. 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.

         Mr. 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.[1] 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.

         The 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.

         In my 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 offenses.

         I have 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 rate[2] 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.[3]
*** 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.[4]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.[5]

16-1412 (La. 3/15/17), 221 So.3d 815, 826-27 (J, dissenting).

         Another 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.

         I have 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 ...


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