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State v. Day2/5/2003
AFFIRMED.
In this case, the defendant, Robert Paul Day, pled guilty to cultivation of marijuana in violation of La.R.S. 40:966(A)(1). He was sentenced to serve five years at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served. He now appeals claiming that the sentence imposed was cruel, unusual, and constitutionally excessive; the trial court erred in finding the amendments to La.Code Crim.P. art. 893 did not apply to this case; and the trial court failed to adequately articulate the factual basis and reasons which supported the sentence imposed. For the following reasons, we affirm.
FACTS
On or about May 19, 2000, detectives arrived at Defendant's house to investigate a tip from his wife, regarding his use and cultivation of marijuana. Upon the detectives' entry into his house, they detected the smell of burnt marijuana. Defendant admitted smoking a joint shortly before the detectives arrived. He was searched and three partially burnt marijuana cigarettes and a metal clip were found.
Also found were a metal pan with green plant material, rolling papers, scissors, and four hand-rolled cigarettes. Defendant maintained that he was growing the marijuana plants so he would not have to purchase the drug. He was arrested for possession of marijuana, possession of drug paraphernalia, and cultivation of marijuana.
RETROACTIVE APPLICATION ARTICLE 893
Defendant argues Acts 2001, No. 403, § 6, amending La.Code Crim.P. art. 893 and effective June 15, 2001, affords him the benefit of probation, parole, or suspension of sentence since he was sentenced after the acts' effective date, even though the offense was committed prior to its effective date. Since this issue affects the outcome of Defendant's other assignments of error, we shall review it first.
Defendant contends that the amendments to Article 893 apply to persons convicted after June 15, 2001, and thus, the trial court erred when it applied the law in effect at the time of the offense when sentencing him. The State asserts that the sentencing provisions of La.R.S. 40:966(A) and La.Code Crim.P. art. 893 in effect prior to the most recent amendments apply to Defendant, which precludes him from receiving benefits.
The Louisiana Supreme Court recently rendered three opinions on the same day that made important distinctions between the Legislature's enactment of 2001 Acts, No. 403, which amended Article 893, and Acts 2001, No. 1163, which concerns the DWI statute. First is State v. Michael J. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526. Defendant relies on this case as authority for his contention that the new amendment should be retroactively applied to his sentence. In Mayeux, the supreme court stated that the enactment of Act 1163, which amended the sentencing provisions of La.R.S. 14:98, applied to defendants convicted after the effective date of the statute based on "1) the words `upon conviction'; 2) the legislative purpose of favoring treatment over incarceration; and 3) allowing home incarceration for those previously convicted." Id. at 530. The supreme court acknowledged the longstanding rule that the law in effect at the time of the offense determines the applicable penalty. However, the supreme court noted that the enactment of Act 1163, in relation to the DWI law, made changes to how the sentence was to be served, in addition to the Legislature stating its underlying policy considerations for the changes. The changes were not merely adjustments to the term of imprisonment. Therefore, the new amendment applied to cases where the conviction occurred after the effective date.
In State v. Sugas
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