                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                              NEWS RELEASE #005


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 30th day of January, 2018, are as follows:



PER CURIAM:


2016-KH-0949      STATE EX REL.   JOHN   ESTEEN   v.   STATE   OF   LOUISIANA   (Parish   of
                  Jefferson)

                  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.
                  REVERSED AND REMANDED.

                  JOHNSON, C.J., additionally concurs and assigns reasons.
                  WEIMER, J., dissents and assigns reasons.
                  GUIDRY, J., dissents.
                  CLARK, J., dissents for the reasons assigned by Justice Weimer
                  and assigns additional reasons.
                  CRICHTON, J., additionally concurs and assigns reasons.
01/30/18


                     SUPREME COURT OF LOUISIANA


                                 No. 16-KH-0949

                       STATE EX REL. JOHN ESTEEN

                                     VERSUS

                            STATE OF LOUISIANA


   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
        DISTRICT COURT FOR THE PARISH OF JEFFERSON



PER CURIAM

      Relator 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.

      In 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.

       In 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.”

       Thus, after the reenactment, the interpretative problem posed by the apparent

                                         2
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) (emphasis added).

         Relator contends that La.R.S. 15:308(A) and (B) 1 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


1
    These sections now provide:

         A. (1) The legislature hereby declares that the provisions of Act No. 403 of the
         2001 Regular Session of the Legislature provided for more lenient penalty
         provisions for certain enumerated crimes and that these penalty provisions were to
         be applied prospectively.

         (2) The legislature hereby further declares that Act No. 45 of the 2002 First
         Extraordinary Session of the Legislature revised errors in penalty provisions for
         certain statutes which were amended by Act No. 403 of the 2001 Regular Session
         of the Legislature and that these revisions were to be applied retroactively to June
         15, 2001, and applied to any crime committed subject to such revised penalties on
         and after such date.

         B. In the interest of fairness in sentencing, the legislature hereby further declares
         that the more lenient penalty provisions provided for in Act No. 403 of the 2001
         Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary
         Session of the Legislature shall apply to the class of persons who committed
         crimes, who were convicted, or who were sentenced according to the following
         provisions: R.S. 14:56.2(D), 62.1(B) and (C), 69.1(B)(2), 70.1(B), 82(D), 91.7(C),
         92.2(B), 92.3(C), 106(G)(2)(a) and (3), 106.1(C)(2), 119(D), 119.1(D), 122.1(D),
         123(C)(1) and (2), 352, and 402.1(B), R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii),
         1303(B), and 1304(B), R.S. 27:262(C), (D), and (E), 309(C), and 375(C), R.S.
         40:966(B), (C)(1), (D), (E), (F) and (G), 967(B)(1), (2), (3), and (4)(a) and (b),
         and (F)(1), (2), and (3), 979(A), 981, 981.1, 981.2(B) and (C), and 981.3(A)(1)
         and (E), and Code of Criminal Procedure Article 893(A) prior to June 15, 2001,
         provided that such application ameliorates the person’s circumstances.

                                                  3
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. 15:574.2(I)(1).

      This 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.

      In 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.



                                           4
       While the power of commutation is bestowed on the executive branch, 2 “[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 (emphasis added).

       Here, 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, 3 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


       2
          See La. Const. art. 4, § 5(E)(1) (“The governor may grant reprieves to persons convicted
of offenses against the state and, upon favorable recommendation of the Board of Pardons, may
commute sentences, pardon those convicted of offenses against the state, and remit fines and
forfeitures imposed for such offenses.”); see also La.Const. art. II, § 2 (“Except as otherwise
provided by this constitution, no one of these branches, nor any person holding office in one of
them, shall exercise power belonging to either of the others.”).
       3
         Cf. Way v. Superior Court, 74 Cal.App.3d 165, 177, 141 Cal.Rptr. 383, 391 (Ct. App. 3
Dist. 1977) (“We note that the motivation behind section 1170.2 is not consistent with
commutation. The Legislature's objective, admittedly one within its power, is to restructure
punishments for criminal conduct and to make them uniform to the extent reasonably possible.
Having accomplished this as to future offenders, it then sought to avoid a condition which it
deemed both undesirable and inconsistent with the concept of uniformity, that felons
concurrently serving sentences for identical offenses be subject to disparate terms solely because
of the time when they committed their crimes. It undertook no act of mercy, grace, or
forgiveness toward past offenders, such as characterizes true commutations.”).

                                                5
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.

        At the 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.

        Under 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.4 Accordingly, we reverse the district court’s denial of


        4
          In fact, it appears that the legislature has created two distinct avenues for relief. First, as
in this case, when an offender’s sentence exceeds the maximum sentence allowed under the new
penalty provisions, then that sentence is truly illegal and must be corrected by the district court.
                                                   6
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.

REVERSED AND REMANDED




Second, when a sentence falls within the ranges of both the harsher and more lenient penalty
provision (e.g. an individual sentenced to 15 years imprisonment for a crime that initially carried
a range of 15–30 years, and where the ameliorated range falls between 0–15 years), that sentence
is not illegal and that offender’s avenue for relief is by application to the committee on parole
pursuant to La.R.S. 15:308(C), through which, as we found in State v. Dick, “the legislature is
suggesting to the executive branch that it should consider these ameliorative sentencing
provisions when reviewing the offenders’ applications . . . .” Id., 06-2223, p. 14, 951 So.2d at
133.

                                                7
01/30/18

                      SUPREME COURT OF LOUISIANA

                                 No. 2016-KH-0949

                        STATE EX REL. JOHN ESTEEN

                                      VERSUS

                             STATE OF LOUISIANA

   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
        DISTRICT COURT, FOR THE PARISH OF JEFFERSON

JOHNSON, C.J. additionally concurs and assigns reasons.

      I fully 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 from the legislature. The

majority in this case now corrects that error.

      As I explained in my dissent in Dick, the legislature clearly expressed its intent

in La. R.S. 15:308(B) by stating that, in the interest of fairness in sentencing, the

more lenient penalty provisions shall apply to persons who were sentenced prior to

June 15, 2001. 951 So. 2d at 134 (Johnson, dissenting). The majority in this case

correctly interprets the provisions in La. R.S. 15:308(B) and (C) to reach the result

intended by the legislature. To hold defendant was limited to seeking relief from the

committee on parole pursuant to La. R.S. 15:308(C), as suggested by the state, would

create a completely discretionary system of implementation. The committee on parole

is not required to apply the ameliorative provisions. Rather, the committee is directed

to evaluate La. R.S. 15:308 applications and, “taking into consideration the risk of

danger the applicant would pose to society if released from confinement,” issue

recommendations to the Board of Pardons regarding “whether the applicant is eligible

for a reduction,” as if La. R.S. 15:308 regulated parole eligibility, rather than


                                           1
mandatory retroactively reduced sentencing ranges.

      The majority’s opinion in this case is also consistent with the underlying

reasoning of this court in State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526. In

Mayeux, defendant was arrested and charged with a violation of La. R.S. 14:98(E),

DWI fourth offense. Subsequent to defendant’s arrest, the legislature amended the

statute’s sentencing provisions, radically changing the way in which the offender

serves the sentence imposed by the court. This court held that the district court erred

in sentencing the defendant under the penalty provisions as they existed at the time

of the defendant’s DWI offense, rather than at the time of his conviction. In so doing,

this court reasoned that although Louisiana courts have generally held that the law

in effect at the date of the offense should control, the statutory language and

legislative purpose behind the statutory amendment of La. R.S.14:98(G) dictated that

the amendment be applied to those defendants having committed an offense prior to

the effective date of the amendment. 820 So.2d at 529. Additionally, this court

recognized the amendment was passed “in an effort to address the societal costs of

drunken driving and a high per capita prison population.” Id. at 527. Similarly, in this

case, the language in La. R.S. 15:308(B) clearly directs when the amended penalty

provisions are applicable by mandating they be applied retroactively to those

offenders already sentenced. Further, in my view, the ameliorative amendments

represent a significant shift in policy relative to drug offenses in this state and

demonstrate that the legislature has chosen to impose more lenient sentencing

provisions. The legislative enactment of La. R.S. 15:308(B) addressed the inequity

between penalties for identical offenses committed before and after the amendments

went into effect, by giving offenders who received the harsher sentences the

opportunity to have their sentences reduced in accordance with the ameliorative



                                           2
legislation. See Dick, 951 So. 2d at 135 (Johnson, dissenting).

      When courts impose sentences exceeding the express sentencing

provisions—either by mistake or, as in this case, because of a retroactive legislative

mandate—the sentence must be considered illegal and courts are duty-bound to

correct those sentences. Because defendant’s sentences now exceed those set forth

by the legislature, his sentences must be considered illegal and subject to correction

by the courts. For these reasons and the reasons assigned by the majority, I find that

defendant and other similarly-situated inmates are entitled to seek relief through the

courts.




                                          3
01/30/18

                   SUPREME COURT OF LOUISIANA


                                 NO. 2016-KH-0949

                        STATE EX REL. JOHN ESTEEN

                                      VERSUS

                                STATE OF LOUISIANA

            ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
                DISTRICT COURT, FOR THE PARISH OF JEFFERSON



WEIMER, J., dissenting.

      The majority’s opinion ignores a statutory mandate enacted by the legislature

and usurps the authority constitutionally granted to the executive branch. As a result,

the statutorily-mandated vetting by the executive branch’s committee on parole,

which is tasked with determining whether the offender presents a danger to society,

is stricken from the statute.

      The legislature carefully established a vetting procedure, which involves an

evaluation by the committee on parole prior to an offender receiving the benefit of a

reduction in sentence. However, after this court’s majority opinion for reducing

certain criminal sentences, what is the role of the committee on parole? According

to the majority opinion, there is no role whatsoever.

      According to the mandate of the legislature in La. R.S. 15:308(C), however,

any reduction in sentence or release from confinement is entirely within the discretion

of the committee on parole, after the committee considers whether the offender has

served sufficient time and the committee determines whether the offender presents

a “risk of danger … to society if released from confinement.” La. R.S. 15:574.2(I)(1).

According to this court’s majority opinion, instead of the committee on parole making
a case-by-case evaluation of an offender’s danger to society, the court system is

empowered to release an offender, and to do so without evaluating whether the

offender has demonstrated conduct that presents a danger to society. Under the

holding of the majority opinion, an offender’s release is apparently automatic after

petitioning a court to turn back the clock by applying shorter periods of incarceration

than those that lawfully applied when the offender was sentenced.

       This court has previously examined whether, based on the legislature’s

subsequent reduction of a criminal penalty, the judiciary can reduce criminal

sentences that were lawful when imposed. See State v. Dick, 06-2223, 06-2226 (La.

1/26/07), 951 So. 2d 124. This court concluded: “[A]llowing the courts to reduce the

offenders’ final sentences would, in effect, commute a valid sentence, a power the

legislature knows to be constitutionally reserved to the executive branch.” Id.,

06-2223, 06-2226 at 14, 951 So.2d at 133. In so ruling, this court was aligned with

a majority of jurisdictions which have found that the power to reduce final sentences

belongs to the executive branch.1


1
  See State v. Philipps, 521 N.W.2d 913, 917 (Neb. 1994) (“[T]o interpret a statute such that it
would reduce, without the approval of the Board of Pardons, a sentence imposed prior to its
enactment would render the statute unconstitutional, for it would permit a legislative invasion of the
power of commutation constitutionally consigned to the board.”); State v. Cummings, 386 N.W.2d
468, 472 n.2 (N.D. 1986) (“Legislation lessening punishment may not be applied to final convictions
because this would constitute an invalid exercise by the Legislature of the executive pardoning
power.”); Bossie v. State, 488 A.2d 477, 480 (Me. 1985) (holding that the power to commute
sentences was “explicitly and exclusively granted to the executive.”); Commonwealth v. Sutley,
378 A.2d 780, 782, 789 (Pa. 1977) (holding that a statute reducing sentences for marijuana
possession “operated as a legislative impairment of existing final legal judgments,” while also noting
“there is no power of pardon or commutation in the legislature and... the power is specifically and
singularly granted to the executive branch”); State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 103
(Tex. Crim. App. 1973) (holding that a statute reducing the sentences for marijuana offenses resulted
in “commutation” and, therefore, violated the Texas Constitution, which “plac[ed] the power of
clemency in the hands of the Governor, acting upon the recommendation of the Board of Pardons
and Paroles.”); People v. Herrera, 516 P.2d 626, 628 (Colo. 1973) (holding that “[t]he power of
commutation ... is the power to reduce punishment from a greater to a lesser sentence,” and this
power was exclusive to the governor); Whittington v. Stevens, 73 So. 2d 137, 140 (Miss. 1954)
(holding that, although “the legislature was prompted by the highest humanitarian motives,” statute
providing for reduction of sentence based on physical disability of prisoners was “held to be
unconstitutional as an infringement upon the pardoning power vested in the governor.”).

                                                  2
       The majority of this court now claims that Dick was wrongly decided because:

1) the legislature is authorized to set penalties; 2) the judiciary has the power to

impose sentences; and 3) anything not prohibited by the constitution is allowed. See

State ex rel. John Esteen v. State, 16-0949, slip op. at 4 (La. 1/30/2018). These

three principles are certainly important, but the majority has misapplied them. By

giving a straightforward effect to La. R.S. 15:308, there is no justification for

overruling Dick because La. R.S. 15:308 contains a proper respect for the separation

of powers.2 Indeed, the majority’s opinion recites–with a parsing that inescapably

requires involvement of the committee on parole–how the legislature invokes the

authority of the executive branch of government:

             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) (emphasis added).

Esteen, slip op. at 3.

       Notwithstanding the legislative mandate just quoted, the majority circumvents

the committee on parole and tasks the judiciary with reducing lawfully imposed

sentences. Such result requires ignoring the entirety of Section C of La. R.S. 15:308,

by which the legislature invokes the authority of the executive branch of government,

specifically, the authority of the committee on parole. In so doing, the majority also

disregards another fundamental precept dictated by the legislature: “When the



2
  See La. Const. art. II, § 2 (“Except as otherwise provided by this constitution, no one of these
branches, nor any person holding office in one of them, shall exercise power belonging to either of
the others.”); see also La. Const. art. IV, § 5(E)(1) (“The governor may grant reprieves to persons
convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons,
may commute sentences, [and] pardon those convicted of offenses against the state ... .”).

                                                3
wording of a Section is clear and free of ambiguity, the letter of it shall not be

disregarded under the pretext of pursuing its spirit.” La. R.S. 1:4.

       The result reached by the majority is all the more perplexing when one

recognizes that the majority gives no effect to the committee on parole (whose

authority is specifically mentioned in Section C of La. R.S. 15:308), yet

simultaneously declares that the petitioner’s sentence can be changed by the judiciary

via a statute that is nowhere mentioned in La. R.S. 15:308–namely La. C.Cr.P. art.

881.5 (dealing with correction of illegal sentences).3 To be fair, in a footnote, the

majority purports to allow some authority to the committee on parole, inasmuch as

the majority finds there is a class of sentences which “falls within the ranges of both

the harsher and more lenient penalty provision[s],” and the majority declares that for

such sentences, an “offender’s avenue for relief is by application to the committee on

parole.” Esteen, slip op. at 6-7 n.4. In its footnote, however, the majority again does

no service to longstanding law, as the majority’s solution for a second class of

offenses amounts to an advisory opinion for facts not presented here. “It is

well-settled in the jurisprudence of this state that courts will not decide abstract,

hypothetical or moot controversies or render advisory opinions with respect to such




3
  It should also be noted that sentences that were for a lawful duration when imposed, such as the
relator’s sentences, are not illegal sentences:

       This court has consistently held that the law in effect at the time of the commission of the
       offense is determinative of the penalty which the convicted accused must suffer. State v.
       Wright, 384 So.2d 399, 401 (La. 1980). A defendant must be sentenced according to
       sentencing provisions in effect at the time of the commission of the offense. State v.
       Narcisse, 426 So.2d 118, 130–131 (La.1983).

State v. Sugasti, 01-3407, p. 4 (La. 6/21/02), 820 So.2d 518, 520.

Here, by derogating from these previously-recognized principles, the majority opinion profoundly
alters and expands the concept of illegal sentences for purposes of La. C.Cr.P. art. 881.5.

                                                4
controversies.” Shepherd v. Schedler, 15-1750, p. 13 (La.1/27/16), 209 So.3d 752,

764.

       For the facts at hand, I find the legislature has given a straightforward solution.

In Section B of La. R.S. 15:308, the legislature has made available reduced sentences

for certain non-violent offenses. The legislature has not made reduction of sentences

for those crimes automatic, nor has the legislature tasked the courts with deciding

whether to reduce such sentences or to release any offender. Instead, in Section C of

La. R.S. 15:308, the legislature invokes the authority and duties of the parole board.

Among those duties, one is noteworthy: “[T]o determine the time and conditions of

release on parole of any person who has been convicted of a felony and sentenced to

imprisonment, and confined in any penal or correctional institution in this state.” La.

R.S. 15:574.2(D)(1).4

       Regardless of whether any judge, myself included, may personally agree with

efforts to avoid Louisiana being castigated as the “incarceration capital” of the

nation,5 in our legal system, judges must act within the bounds established by the

legislature and the constitution. Through its latest iteration of La. R.S.15:308, the

legislature wisely recognized what the majority of this court does not. Release from



4
   Parenthetically, I note that the role of Louisiana’s committee on parole differs from the role of
California’s Community Release Board, as the latter’s role is described in Way v. Superior Court,
74 Cal. App. 3d 165 (Ct. App. 1977). For justification in overruling this court’s decision in Dick,
the majority relies heavily on Way. However, as described in Way, newly enacted legislation
required, as the default ruling of the Community Release Board, to set a release date consistent with
more recently enacted and lesser periods of incarceration. Way, 74 Cal. App.3d at 171-72. Only
if “two members of the Community Release Board ... determine that ... [he] should serve a [longer]
term” would an offender be required to serve a longer term. Id. at 172-73. Thus, the procedure
envisioned by the Louisiana Legislature provides no default ruling by the committee on parole and
hence empowers the committee with greater discretion.
5
  See generally Louisiana could soon lose title as incarceration capital, with or without reforms,
T h e     A d v o c a t e      ( M a y        2 3 ,     2 0 1 7 ) ,      a v a i l a b l e     a t
http://www.theadvocate.com/baton_rouge/news/politics/legislature/article_c79ad504-3f23-11e7-
ac58-fb249f8e45fe.html.


                                                 5
or reduction of a lawfully-imposed sentence should not be automatic (as the majority

of this court presently holds), but is instead made contingent on the case-by-case

determination of the committee on parole (a component of the executive branch of

government) and satisfaction of any conditions imposed by that committee. A most

unfortunate result of the majority’s ruling, which is tantamount to usurping the

powers of the executive branch, but without the review procedures normally

performed by the executive branch, is that potentially dangerous offenders will be

released without the statutorily-mandated vetting. Thus, I respectfully dissent.




                                         6
01/30/18



                   SUPREME COURT OF LOUISIANA

                          No. 2016-KH-0949

                    STATE EX REL. JOHN ESTEEN

                              VERSUS

                        STATE OF LOUISIANA

  ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
       DISTRICT COURT, FOR THE PARISH OF JEFFERSON


GUIDRY, J., dissents.
01/30/18


                      SUPREME COURT OF LOUISIANA

                                  NO. 16-KH-0949

                        STATE EX REL. JOHN ESTEEN

                                          V.

                             STATE OF LOUISIANA

   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
        DISTRICT COURT FOR THE PARISH OF JEFFERSON


CLARK, J., Dissents for the reasons assigned by Justice Weimer and assigns

additional reasons.

      I respectfully dissent for the reasons assigned by Justice Weimer. I write

separately to express my disagreement with a broad interpretation of La. R.S.

15:308. I believe that incarcerated inmates serving sentences pursuant to plea

agreements with the state should not be eligible to seek a reduction in their sentences

under La. R.S. 15:308. Louisiana Code Crim. Proc. Art. 881.2 (A)(2) expressly

provides that “[t]he defendant cannot appeal or seek review of a sentence imposed

inconformity with a plea agreement which was set forth in the record at the time of

the plea.” Once a defendant is sentenced pursuant to a valid plea agreement, he is

bound by the terms of the agreement and should have to serve that sentence.
01/30/18

                     SUPREME COURT OF LOUISIANA

                                NO. 16-KH-0949

                       STATE EX REL. JOHN ESTEEN

                                        V.

                            STATE OF LOUISIANA

   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
        DISTRICT COURT FOR THE PARISH OF JEFFERSON


Crichton, J., additionally concurs and assigns reasons.
      I agree with and join in the per curiam in this matter. I write separately to

acknowledge that I am cognizant of the logistical challenges this opinion may pose.

However, I am ultimately convinced that the judiciary’s “traditional, inherent, and

exclusive” power to sentence within the range fixed by the legislature is paramount.

State v. Rome, 96-0991, pp. 3-4 (La. 7/1/97), 696 So. 2d 976, 978.
