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State v. Parker4/14/2004
's responsibility to make these significant policy determinations, it was the legislature's responsibility to decide whether the more lenient provisions were to apply to persons who committed the crime prior to the amendments. Instead of providing retroactive applicability for the revisions, the legislature chose prospective effect only.
The language of LSA-R.S. 15:529.1(D)3, which states "when the judge finds," merely refers to the procedure the judge must utilize in making a determination the defendant engaged in prior criminal activity. A defendant is not convicted of being a habitual offender. Rather, defendants are adjudicated as multiple offenders because of prior convictions. The sentence being imposed following such adjudication is an enhanced penalty for the underlying conviction. Read in context, the "when the judge finds" phrase is not sufficiently clear to result in a departure from the well-established rule that one is wedded to the penalty as of the date of the crime. See Dreaux, 205 La. at 391, 17 So.2d at 560; see also, State v. Clark, 391 So.2d 1174 (La. 1980); accord, State v. Paciera, 290 So.2d 681 (La. 1974). A defendant's sentence is fixed based on his action in committing criminal activity. Thus, a defendant's voluntary act of engaging in criminal activity establishes his sentencing fate. This is especially so when the statute specifically refers to prospective effect only.
The "prospective effect" language was conspicuously absent in the driving while intoxicated provision of LSA-R.S. 14:98(E) as amended by 2001 La. Acts No. 1163, the amendment addressed in Mayeux, 01-3195, 820 So.2d 526. However, such language was present in the amendment to LSA-R.S. 40:966(C)(1) enacted by 2001 La. Acts No. 403, and addressed in Sugasti, 01-3407, 820 So.2d 518. In those two cases the court distinguished Act 403 from the provisions of Act 1163. The provisions in Act 1163 (which amended the driving while intoxicated statute) retained the sentencing ranges provided for third and fourth offense driving while intoxicated violations, but radically changed the way the offender may serve the sentence imposed by the court. Act 1163 did not include language specifying only prospective effect; Act 1163 simply went into effect on August 15, 2001. Sugasti, 01-3407 at 5-6, 820 So.2d at 521.
Significantly, in the statutory provision presently before this court, there is no indication of retroactive application, unlike Act 1163 which specifically stated the ameliorative effect of that statute could be applied to those who were already convicted. See Mayeux, 01-3195 at 5-6, 820 So.2d at 529-530. (Language in the amending legislation grants potential relief to those already convicted; see Section 4 of Act 1163.) Thus, the decision in Mayeux is an outlier, attributable to the particular language used in the amendment. Mayeux underscores it is the legislature that makes the policy determinations regarding punishment.
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