Judgment rendered November 18, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,443-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DAVID WAYNE SHARP Appellant
Appealed from the Third Judicial District Court for the Parish of Union, Louisiana Trial Court No. 2016F53641
Honorable Thomas W. Rogers, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Meghan Harwell Bitoun
JOHN FITZGERALD BELTON Counsel for Appellee District Attorney
CLIFFORD ROYCE STRIDER, III E. MICHAEL MAHAFFEY Assistant District Attorneys
Before PITMAN, COX, and BLEICH (Pro Tempore), JJ.
BLEICH, J. (Pro Tempore), concurring in part and dissenting in part with written reasons. COX, J.
This appeal arises from the Third Judicial District Court, Union
Parish, Louisiana. The defendant, David Wayne Sharp, appeals his verdict
because it was rendered by a six-person jury, rather than a twelve-person
jury, which he contends is in violation of his federal Sixth and Fourteenth
Amendment rights. Mr. Sharp also appeals his designation as a fourth-
felony offender under the 2016 revision of La. R.S. 15:29.1. For the
following reasons, we affirm his conviction and vacate his sentence.
FACTS
On August 16, 2016, Mr. Sharp was charged by bill of information
with domestic abuse battery, third offense, of the victim, Tara Hunt (“Ms.
Hunt”), in violation of La. R.S. 14:35.3(A) and (E). The offense occurred on
either June 24, 2016 or June 30, 2016.1 Mr. Sharp previously pled guilty to
two prior domestic abuse battery charges.
On May 20-21, 2019, a six-person jury trial was held. Ms. Hunt
testified that she and Mr. Sharp previously had a romantic relationship, but
there were times when the pair would break up, which resulted in Mr. Sharp
leaving their shared home for extended periods of time. Ms. Hunt testified
that a few days before June 30, 2016, she and Mr. Sharp had an argument
and he left their home. When Mr. Sharp returned, they had another
argument, however, this time, Ms. Hunt attempted to leave. Ms. Hunt
testified that as she approached her car to leave, she realized she left her
phone, so she returned to the home to retrieve it. When she stepped onto the
1 As indicated in the bill of information, the offense occurred on June 24, 2016. However, at trial, witnesses testified that the date of the offense was June 30, 2016. Because there is no amended bill of information in the record, and police reports list the dates of the offense as being both June 24 and June 30, 2016, it is uncertain when the incident was reported. porch, Mr. Sharp threw her down with considerable force, grabbed her by
her hair, clothing, feet, and ankles, and dragged her inside the house. Once
inside and the door closed, Mr. Sharp proceeded to strike Ms. Hunt with a
closed fist on her back, sides, and head before he threw her onto the couch.
Mr. Sharp was found guilty as charged by a unanimous six-person jury of
domestic abuse battery, third offense.
On May 23, 2019, the State filed a habitual offender bill charging Mr.
Sharp as a fourth felony offender based upon the following predicate
offenses:
1. On June 15, 2011, Mr. Sharp pled guilty to unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:62.3. Mr. Sharp was sentenced to three years at hard labor and three years of supervised probation.
2. On September 7, 2011, Mr. Sharp pled guilty to unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:62.3. Mr. Sharp was sentenced to serve four years at hard labor.
3. On September 18, 2013, Mr. Sharp pled guilty to violation of a protective order, third offense with battery, in violation of La. R.S. 14:79(B)(3). Mr. Sharp was sentenced to serve one year at hard labor, of which six months was to be served consecutively with any parole revocation time.
On June 6, 2019, Mr. Sharp filed motions for a post-verdict judgment
of acquittal and a new trial, both of which were denied on June 19, 2019.
On August 21, 2019, a habitual offender hearing was held and Mr. Sharp
stipulated that he was convicted of the offenses listed in the habitual
offender bill. However, during the hearing, Mr. Sharp questioned whether
all of his predicate offenses fell within the appropriate cleansing period
under Louisiana’s Habitual Offender Law. On September 11, 2019, the trial
court found that the 2016 version of the Habitual Offender Law applied and
the appropriate cleansing period under this version of the law was ten years.
2 The trial court found that Mr. Sharp was correctly adjudicated as a fourth-
felony offender because the predicate offenses provided in the habitual
offender bill fell within the ten-year cleansing period. Mr. Sharp was
sentenced to 25 years at hard labor, with credit for time served, but without
the benefit of parole or suspension of sentence under La. R.S. 15:529.1(G).
Mr. Sharp now appeals his conviction and sentence.
DISCUSSION
Jury Composition
Mr. Sharp contends that the trial court deprived him of his
constitutional right to due process under the federal Sixth and Fourteenth
Amendments because his conviction and subsequent sentence was produced
from an unconstitutionally implemented six-person jury, rather than the
required twelve-person jury. Mr. Sharp concedes that the United States
Supreme Court, notably in Williams v. Florida, 399 U.S. 78, 103, 90 S. Ct.
1893, 1907, 26 L. Ed. 2d 446 (1970), established a long-established
precedent which declared that a defendant’s “Sixth Amendment rights, as
applied to the states through the Fourteenth Amendment, [is] not violated by
[the State’s] decision to provide a [six-man] rather than a [twelve-man]
jury.” Id. Mr. Sharp further acknowledges that the Louisiana Supreme
Court concurred with the Supreme Court’s holding in Williams, as provided
in State v. Jackson, 247 So. 2d 558 (1971).
Nevertheless, Mr. Sharp questions the constitutional viability of
convictions rendered by a jury of less than twelve jurors, and argues that,
“twelve-person juries are more likely to consist of a fair cross-section of
society, give pause to minority views, deliberate longer, and reach more
consistent verdicts than six-person juries.” Specifically, Mr. Sharp contests 3 that the Williams Court determination that six-person juries were the
functional equivalent of twelve-person juries was purely the result of
functionality, not historical context. Such a decision, he argues, has been
largely undermined by the Court’s jurisprudence throughout the last twenty
years, and there is no longer a clear answer to whether a jury of six is
constitutional.
Mr. Sharp first cites the Court’s decision in Apprendi v. New Jersey,
530 U.S. 480, 466 (2000), in which the Court discarded the functional
approach in favor of restoring the jury trial “practice” as it existed “at
common law” with respect to resolving questions of constitutional criminal
procedure. Id. See also, Crawford v. Washington, 541 U.S. 36 (2004) (the
Court overturned prior case law and held that the Sixth Amendment right to
confront witnesses required the exclusion of testimonial hearsay, regardless
of the reliability of that evidence.); Blakely v. Washington, 542 U.S. 296
(2004); Ring v. Arizona, 536 U.S. 584 (2002); and Jones v. United States,
526 U.S. 227, 246 (1999) (the Court warned of “secret machinations, which
may sap and undermine the right to [a] jury trial”).
Mr. Sharp further provides in Ballew v. Georgia, 435 U.S. 223 (1978),
that when the Court concluded that five-person juries failed to satisfy the
Constitution, it cast doubt on the viability of its holding in Williams and the
strength of the evidence used to uphold six-person juries as the functional
equivalent of twelve-person juries. As a result of nearly forty years of
empirical research, seemingly contradictory case law, and the Framers intent
for criminal petit juries to consist of twelve jurors, Mr. Sharp asserts that the
decisions in Williams and Jackson are no longer good law, because there is
“no discernible evidence” to demonstrate that twelve-person juries 4 outperform six-person juries. Thus, his conviction and sentence should be
reversed.
In contrast, the State argues that pursuant to La. C. Cr. P. art. 782, “[a]
case in which the punishment may be confinement at hard labor shall be
tried by a jury composed of six jurors, all of whom must concur to render a
verdict.” See, State v. Dahlem, 2014-1555 (La. 3/15/16), 197 So. 3d 676.
Given that the punishment for which Mr. Sharp was convicted, domestic
abuse, third offense, provides for a term which may be imposed with or
without hard labor, the State avers that the six-person jury trial was within
full compliance of Article 782. With respect to Mr. Sharp’s argument that
the failure to have a twelve-person jury in light of his twenty-five-year
sentence under a Habitual Offender Bill taints his due process rights, the
State deferred to the Louisiana Supreme Court’s holding in State v. Dahlem,
2014-1555 (La. 3/15/16), 197 So. 3d 676.
In Dahlem, the Court discussed a Habitual Offender sentence in which
a six-person jury was employed and held:
“Given that the enhanced sentence to which the evidence made [the] defendant subject was not apparent on the face of the bill of information, we specifically decline to create a duty requiring a trial judge to look beyond the face of the bill of information or the indictment, and the Title penalty range. Nor is it the responsibility of a trial judge to interrogate the district attorney or independently investigate as to what evidence might be introduced that would require a different jury composition at the outset of the case. Doing so would be inappropriate and contrary to the efficient administration of criminal justice, and effectively result in bad policy.”
The Louisiana Constitution art. I § 17 (A) provides, in pertinent part,
as follows:
A case in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. A case for an offense committed prior to January 1, 5 2019, in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
La. C. Cr. P. art. 782 provides that cases in which the punishment
may be confinement at hard labor shall be tried by a jury composed of six
jurors, all of whom must concur to render a verdict. La. R.S. 14:35.3 (A)
and (E) provide that a conviction for a third offense of domestic abuse
battery carries a term of imprisonment with or without hard labor. As the
law currently stands, a fact to which Mr. Sharp concedes from the holding in
Williams, a trial before a six-person jury for charges that do not
automatically carry with it a punishment of confinement at hard labor
remains constitutional. Therefore, Mr. Sharp’s claim does not warrant relief.
We affirm Mr. Sharp’s conviction.
Habitual Offender Statute
In his second assignment of error, Mr. Sharp argues that the trial court
misapplied the ten-year cleansing period of the habitual offender law in
adjudicating him as a fourth-felony offender. He argues the trial court
should have applied the five-year cleansing period to his predicate offenses.
Mr. Sharp contends that the habitual offender law provides that the five-year
cleansing period shall be used for defendants whose convictions were not
final prior to November 1, 2017. He argues that his conviction did not
become final until 2019, thus, the five-year cleansing period applies. Mr.
Sharp further attests that the trial court incorrectly applied the 2016 version
of the Habitual Offender Statute, La. R.S. 15.529.1, simply because the 6 offense in this case was committed on June 24, 2016. This application, he
asserts, is legal error because the 2016 version of the statue required a ten-
year cleansing period, while the 2017 version of the statute requires a five-
year cleansing period.
Mr. Sharp maintains that the trial court relied upon old law in applying
the ten-year cleansing period by citing a judgment that was rendered several
months prior to the effective date of Act 282, which provided that the
applicable cleansing period “is one in effect at the time the defendant
committed the following offense.” State v. Casaday, 51,947 (La. App. 2nd
Cir. 2018), 247 So.3d 1057. He argues that the trial court erroneously
concluded that “[a]ll [of Mr. Sharp’s] felonies occurred within the [ten] year
cleansing period set forth in La. 15:529.1(C) in effect on the date of the
offense, June 24, 2016.” The State argues that the evidence presented at Mr.
Sharp’s habitual offender hearing provides that he is considered a fourth-
felony offender under either the ten-year or five-year cleansing period. The
State provided that on June 15, 2011, Mr. Sharp was sentenced to
imprisonment for three years for his oldest predicate offense, and that the
offense in question occurred on June 24, 2016 or June 30, 2016. Therefore,
the State contends in their brief, that not more than five years elapsed between
the expiration of the correctional supervision for Mr. Sharp’s oldest predicate
offense and the commission of the current offense.
The State further argued that the trial did not commit legal error in
finding that Mr. Sharp is a fourth-felony offender because the 2016 version
of the Habitual Offender Statute, La. R.S. 15:529.1, invokes a ten-year
cleansing period. The State notes that Mr. Sharp did not contest the
sufficiency or admissibility of the evidence produced at his habitual offender 7 hearing, nor did he provide any evidence that his status as a fourth-felony
offender would change if the trial court implemented the five-year cleansing
period. The State, through Mr. Strider at the Multiple Offender
Hearing, notes that Mr. Sharp’s prior convictions were each within five
years of the date of the offense in question, except one conviction which
occurred, “within a couple [of] months of five years.” (Emphasis added).
On June 15, 2011, Mr. Sharp pled guilty to unauthorized entry of an
inhabited dwelling and was sentenced to imprisonment for three years and
three years of probation. On September 7, 2011, Mr. Sharp pled guilty to
unauthorized entry of an inhabited dwelling and was sentenced to four years
at hard labor. On September 18, 2013, he pled guilty to a violation of a
protective order-third offense with battery and was sentenced to one year of
hard labor without probation. Based on this information, the State then
argues that because Mr. Sharp was sentenced on June 15, 2011 for his oldest
predicate offense, and that the offense in the present case occurred on June
24, 2016 or June 30, 2016, five years had yet to elapse between the date of
the current offense and the expiration of his imprisonment as alleged in the
multiple offender bill under LA. R.S. 15:529.1(C)(1). The State argues that
the trial court’s reliance upon the ten-year cleansing period was mere
harmless error because the outcome would have been the same.
The Louisiana Supreme Court in State v. Lyles, 2019-00203 (La.
10/22/19) 286 So. 3d 407, addressed the effective date of the 2017
amendments to Louisiana’s Habitual Offender Law as well as Subsection K,
added by Act 542 of 2018. In Lyles, the defendant committed aggravated
battery on February 1, 2015. Because the defendant had two prior predicate
offenses, a 1991 distribution conviction and a 2004 manslaughter conviction, 8 the State filed a third-felony habitual offender bill of information on
November 16, 2016. The defendant was later adjudicated as a third-felony
offender on February 13, 2017 and given a sentence of life imprisonment in
accordance with the 2015 habitual offender provisions. On appeal, the
defendant relied on Section 2 of Act 282, which provided that “[t]his Act
shall become effective November 1, 2017, and shall have prospective
application only to offenders whose convictions became final on or after
November 1, 2017.” The defendant argued that the 2017 amendments
should have been applied because he was subject to a five-year cleansing
period.
In addressing the defendant’s position, the Court considered whether
the defendant’s habitual offender status and sentence were governed by
either: (1) La. R.S. 15:529.1 as it existed at the time the offense was
committed on February 1, 2015, (2) the 2017 amended La. Acts 282, or (3)
the 2018 amended La. Acts 542. The Court first noted that, “the relevant
portion of Act 282 provides: “This Act shall become effective November 1,
2017, and shall have prospective application only to offenders whose
convictions became final on or after November 1, 2017.” 2017 La. Acts
282, § 2. Act 542 added new Subsection (K) to R.S. 15:529.1:
K. (1) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed.
(2) The provisions of Subsection C of this Section as amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the amount of time that must elapse between the current and prior offense for the provisions of this Section to apply, shall apply to any bill of information filed pursuant to the provisions of this Section on or after November 1, 2017, accusing the person of a previous conviction. 9 2018 La. Acts 542, § 1 (effective August 1, 2018).
The Lyles Court then concluded that, “from the plain language of these
provisions in conjunction with the effective dates of the acts, the legislature
appears to have created three categories of persons potentially affected by
these provisions:
1. There are persons—like the present defendant—whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed before that date. Those defendants would be eligible to receive the benefits of all ameliorative changes made by Act 282.
2. There are persons whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed between that date and August 1, 2018 (the effective date of Act 542). Those persons would be eligible to receive the benefit of the reduced cleansing period, and they may also colorable claims to the other ameliorative changes provided in Act 282, although we need not decide that question today.
3. Finally, there are persons whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed on or after August 1, 2018. They would receive the reduced cleansing period by operation of Subsection K(2) added by Act 542 but their sentences would be calculated with references to the penalties in effect of the date of commission in accordance with Subsection K(2) added by Act 542.
Lyles, supra.
The Lyles Court held that, “for persons like [Lyles], whose
convictions became final on or after November 1, 2017, and whose habitual
offender bills were filed prior to that date, the full provisions of Act 282
apply.”
In the present case, Mr. Sharp committed the offense in question in
2016, however, his conviction occurred in 2019, and his habitual offender
bill was not filed until 2019. Under the facts provided in Lyles, Mr. Sharp
falls within category three. Specifically, Mr. Sharp’s habitual offender
10 adjudication and sentencing occurred before the opinion in Lyles was
rendered and the trial court applied the ten-year cleansing period as provided
in the 2016 version of the habitual offender law. Accordingly, the trial court
must now contemplate whether Subsection K(2) added by Act 542 will have
any effect upon the applicable cleansing period. Furthermore, the trial court,
according to the transcript, failed to properly advise Mr. Sharp of the
prescriptive periods within which he must apply for post-conviction relief.
As such, we are required to vacate Mr. Sharp’s sentence and remand the case
to the trial court for resentencing in consideration of Lyles, supra and so Mr.
Sharp can be advised of his post-conviction rights.
CONCLUSION
For the aforementioned reasons, Mr. Sharp’s conviction is affirmed.
Pursuant to the changes made under La. R.S. 15:529.1 of the Habitual
Offender law, his sentence must be vacated and the case remanded back to
the trial court to be resentenced according to the changes made by the
legislature and interpreted by the Louisiana Supreme Court in Lyles and so
that Mr. Sharp can be advised of his post-conviction rights.
CONVICTION AFFIRMED; SENTENCE VACATED AND
CASE REMANDED FOR RESENTENCING.
11 BLEICH, J. (Pro Tempore), concurring in part and dissenting in part.
This writer concurs with the majority opinion as to the “12-person”
jury trial issue.
Counsel for the defendant never raised that issue or made that request
prior to jury selection, thus making such a request at the appellate level
inappropriate as having been waived. There is no statutory or jurisprudential
authority for a 12-person jury in a relative felony, either at the trial on the
merits or in a habitual offender proceeding. To create such a rule would
invade the province of the legislature and wreak havoc in the criminal justice
system.1
In this appeal, the defendant might be attempting to create new law,
but this Court cannot legislate. The well-written majority opinion is clearly
correct as to this issue.
This writer respectfully dissents concerning remanding the case to the
trial court.
This writer agrees with the State’s argument in its brief regarding the
applicable cleansing period. It appears that the dates of the defendant’s
release from actual custody or supervision by the State on the predicate
offenses for the habitual offender bill were well within five years of the date
of the commission of the instant offense. Regardless of the applicable
“cleansing period,” ten years or five years, we have before us the proverbial
phenomenon of a “distinction without a difference,” as under either
1 One can easily envision certain anomalies. One example could be the requirement of a 12-person jury being empaneled on many relative felony cases, even when a habitual offender proceeding is not invoked. Another example of a bizarre result would be having to empanel two separate juries, one for the trial, the other for sentencing. Either of these would be costly and inefficient, and a disruption of the administration of justice.
1 cleansing period, the result in this case is properly the same. The sentence
should be affirmed without remand.