author: CLARK, Justice

text:
    Darrin COULON and Tess Coulon v. ENDURANCE RISK PARTNERS, INC., West Bank Surgery Center, L.L.C., and Mark Juneau, M.D.
    No. 2016-CC-1146
    Supreme Court of Louisiana.
    03/15/2017
    HUDSON COOK, Nora R. Udell; KARA HADICAN SAMUELS AND ASSOCIATES, LLC, Kara Hadican Samuels, New Orleans, for Applicant.
    FRILOT, LLC, Naira Teresa Colon, Halley Schonekas Carter; NILES, BO-URQUE & KNIGHT LLC, Stewart Earl Niles, Jr., New Orleans, for Respondent.
   CLARK, Justice

| t This ease concerns the pleading requirements of the Louisiana Medical Malpractice Act [“LMMA”], La. R.S. 40:1231.1, et seq. The plaintiffs alleged that an infection developed after negligent medical treatment was provided by the defendants. Accordingly, they filed a Request for Medical Review Panel and, sub-seqúently, a lawsuit. We granted the plaintiffs’ writ application to determine whether the medical review panel complaint was sufficient to survive an exception of prematurity. For the reasons that follow, we find the brief descriptions of malpractice contained in the complaint are broad enough to encompass the specific allegations contained in the petition for damages. Thus, we reverse the lower courts’ grant of the exception of prematurity and remand the matter for proceedings consistent with this holding.

FACTS AND PROCEDURAL HISTORY

In late 2011, Darrin Coulon underwent shoulder surgery at the West Bank Surgery Center, (hereinafter “the Surgery Center”), which was performed by Dr, Mark Juneau. Mr, Coulon developed an infection, necessitating several additional surgeries and treatment to resolve. Thereafter, Mr. Coulon and his wife, Tess Coul-on, (hereinafter referred to as “the plaintiffs”), filed a pro se Request for. Medical Review Panel, (hereinafter “the complaint”), with regard to a claim for |2medical malpractice arising out of the care and treatment provided by Dr. Juneau and the Surgery Center. In the complaint and with respect to the Surgery Center, the plaintiffs alleged:

[The Surgery Center] failed to develop; maintain, and enforce proper policies and procedures to prevent surgical infections.
■ [The Surgery Center is] responsible under the theory of respondeat superior for the actions of its employees acting within the course and scope of their employment, • ■.

The plaintiffs also filed a Submission of Evidence with their complaint, attaching to it medical records, affidavits of the plaintiffs, and photographs,

The medical review panel made a finding that “[t]he evidence does not Support the conclusion that the defendants, Jefferson Orthopedic Clinic [a party not relevant to the instant legal issue], Dr. Mark Juneau, and [the Surgery Center], failed to meet the applicable standard of care as charged in the complaint.” In its opinion, the panel explained, in pertinent part:

1. There is nothing in the records presented to the panel to review to indicate that [the Surgery Center] and/or its employees deviated from the standard of care.
2. The center’s personnel properly monitored the patient and followed all physician orders in an appropriate and timely fashion. There is no evidence to indicate the facility had failed to-maintain proper procedures to prevent surgical infections,

After the panel rendered its opinion, the plaintiffs filed the instant suit for damages against the Surgery Center. In their petition, the plaintiffs alleged the Surgery Center failed to properly train and supervise the nurses who treated Mr. Coulon:

Defendant, [the Surgery Center], is liable unto petitioners because Darrin Coulon’s injuries and damages were proximately and legally caused by the fault, including negligence of [the Surgery Center] and its officers, agents, and/or employees, and those for whom it is .legally responsible, including but not limited to, Darrin |sCpulon’s nurses, and/or surgical, staff including the following. negligent acts, of omission and commission, among others, which may be shown at trial:. '
a. Failure to develop and/or implement and/or enforce adequate policies and procedures to competently prevent and/or treat infection;
b. Failure to insure a sterile surgical environment;
c. Failure to supervise the nurses who treated Darrin Coulon; and
d. Failure to train the nurses who treated Darrin Coulon.

[emphasis added].

In response, the Surgery Center filed a partial exception of prematurity, arguing the allegations regarding the failure to train and supervise the nurses was premature as the plaintiffs did not allege these claims in their complaint to the medical review panel. The plaintiffs opposed the exception. They contended that the language alleged in the complaint was broad enough to encompass the claims set forth in the petition.

The trial court conducted a hearing and sustained the Surgery Center’s exception of prematurity, thereby dismissing the plaintiffs’ malpractice action in'part. The trial court’s judgment provided:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that [the Surgery Center’s] Exception of Prematurity is GRANTED, and plaintiffs’ claims alleged in their Petition for Damages at paragraph 104, subsection (c) Failure to supervise the nurses who treated Darrin Coulon and at paragraph 104, subsection (d) Failure to train the nurses who treated Darrin Coulon, are dismissed without prejudice.

The transcript of the hearing reveals the trial court agreed with the Surgery Center’s argument that while the language in the petition does not need to be identical to that contained in the complaint, the plaintiffs cannot bring “entirely new theories of liability.”

14The plaintiffs sought supervisory review. The court of appeal denied the- writ, stating, in pertinent part:

In their September 25, 2012 medical review panel request, Relators set forth a general allegation that Respondent was responsible under the theory of re-spondeat superior for the actions of its employees acting within the course and scope of their employment. Relators did not specify the employees for whom Respondent was responsible under respon-deat superior. In theirl “Submission of Evidence,” .Relators alleged Dr. Mark Juneau breached his standard of care of Mr. Coulon in various ways while employed with Respondent. The submission of evidence did not brief any argument regarding Respondent’s alleged failure to train and/or supervise its nurses. The medical review panel’s opinion and reasons found there was nothing presented to indicate that Respondent or its employees deviated, from the standard of care. The medical review panel did not specifically address any allegation against Respondent in reference to an alleged failure to train and/or supervise its nurses.
Upon review, we find the dilatory exception of prematurity was properly sustained. A review of the documentation submitted to the medical review panel reveals that Relators did not present sufficient information for the panel concerning the nursing staff to determine whether Respondent was entitled to protection under the Medical Malpractice Act. Thus, we find that Relators failed to first present the claims that Respondent failed to supervise and -train the nurses who treated Mr. Coulon, claims that sound in medical malpractice, to the medical review panel. Accordingly, the writ application is denied.

The plaintiffs filed the instant writ application. This court granted the writ to decide whether the exception of prematurity was properly sustained.

DISCUSSION

Prior to filing suit in a case where medical negligence is alleged, the LMMA requires a medical review panel to be convened. See La. R.S. 40:1231.8(A)(1)(a) (“All malpractice claiihs against health care providers ... shall be reviewed by a medical review panel”). See also La. R.S. 40:1231.8(B)(1)(a)(i)(“No action against a health care provider... may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel”). The panel is tasked with rendering “an expert opinion as to whether or not the evidence | ¡¡supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” La. R.S. 40:1231.8(G).

“The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Moreno v. Entergy Corp., 2010-2268 (La. 2/18/11), 64 So.3d 761, 762-63. In the context of medical malpractice cases, defendant health care providers often use the exception of prematurity when there is a question of whether the claim at issue falls within the definition of medical malpractice, so as to require it to first be brought to a medical review panel. However, the parties in the instant case do not dispute that the claims of “failure to train the nurses” and “failure to supervise the nurses” sound in medical malpractice as defined by La. R.S. 40:1231.1(A)(13). Rather, the Surgery Center raised the exception of prematurity to argue that these claims were new and separate claims from those raised in the complaint. Accordingly, the Surgery Center avers the claims were not first presented to the medical review panel and are properly subject to dismissal as a result.

In order to address this contention and the sufficiency of the plaintiffs’ complaint, we turn to La. R.S. 40:1231.8(A)(1)(b), which sets forth the required content of a complaint:

A request for review of a malpractice claim or a malpractice complaint shall contain, at a minimum, all of the following:
(i) A request for the formation of a medical review panel.
(ii) The name of only one patient for whom, or on whose behalf, the request for review is being filed; however, if the claim involves the care of a pregnant mother and her unborn child, then naming the mother as the patient shall be sufficient.
(iii) The names of the claimants.
(iv) The names of the defendant health care providers.
|fi(v) The dates of the alleged malpractice.
(vi) A brief description of the alleged malpractice as to each named defendant health care provider.
(vii) A brief description of the alleged injuries.

The instant case asks us to determine whether the plaintiffs satisfied subpart (vi), namely, whether the plaintiffs provided in their complaint a “brief description of the alleged malpractice as to each named defendant health care provider.” The Surgery Center argues the plaintiffs’ claims regarding failure to train and supervise the nurses were not included in the brief description(s) of the malpractice alleged in their complaint. Conversely, the plaintiffs contend they sufficiently alleged in their complaint that the Surgery Center’s act of malpractice loas the failure to prevent Mr. Coulon’s surgical infection under theories of both direct and vicarious liability. This brief description, as alleged by the plaintiffs, encompassed the causes of action that are at issue. For the reasons that follow, we agree.

This court in the pre-amendment case of Perritt v. Dona, 2002-2601 (La. 7/2/03), 849 So.2d 56, 64, explained that the medical review panel claim is not a fact pleading which requires the same specificity as a petition in a lawsuit. Rather, “the claim need only present sufficient information for the panel to make a determination as to whether the defendant is entitled to the protection of the Act.” Id. at 65. We see nothing in the amendment to La. R.S. 40:1231.8(A)(1)(b) that makes the pleading requirement any more onerous. It is still the duty of the medical review panel to specify the health care provider’s standard of care and determine thereafter if such standard was breached. Perritt, 849 So.2d at 65; La. R.S. 40:1231.8(G). The requirement of a “brief description of the alleged malpractice” supports this conclusion and is in line with the history of the LMMA, which favors a layman plaintiffs access to medical expertise as a “filtering” or “pre-screening” process against “frivolous” and “worthless” claims. Everett v. Goldman, 359 So.2d 1256, 1263 (La. 1978). Thus, the pertinent question posed is whether the claims raised in the complaint contain enough information for the medical review panel to consider and conclude that the Surgery Center was entitled to the protections of the LMMA, as opposed to claims that sound in tort. Perritt, 849 So.2d at 65.

For the reasons that follow, we find the plaintiffs’ allegations contained in the complaint presented to the medical review panel are broad enough to encompass the failure to train and supervise the nurses who cared for Mr. Coulon. Specifically, we note that the complaint alleged direct liability for the Surgery Center’s failure “to develop, maintain, and enforce proper policies and procedures to prevent surgical infections” as well as vicarious liability under the theory of “respondeat superior for the actions of its employees.” The underlying injury alleged by the plaintiffs is infection. Thus, in alleging both direct and vicarious liability, it is a natural conclusion that the plaintiffs were seeking panel review of all the policies, procedures, and/or employee conduct that could have led to the infection Mr. Coulon developed as a result of his treatment with Dr. Juneau and the Surgery Center.

The medical review panel understood the full scope of their review, as evidenced by their opinion that there was no deviation from the standard of care on the part of the Surgery Center and/or its employees in relation to Mr. Coulon’s infection. In fact, it specifically noted the “personnel properly monitored the patient and followed all physician orders in an appropriate and timely fashion.” This conclusion encompasses the nurses’ actions in treating Mr. Coulon, either under a theory of direct fault by the Surgery Center or imputed fault, which were both alleged.

|sWith regard to imputed fault, the foundation of liability under respondeat superi- or is the employee’s tort. FRANK L. MA-RAIST & THOMAS C. GALLIGAN, JR. LOUISIANA TORT LAW § 13.02(2d ed. 2016), See also La. Civ. Code art. 2320. In order for liability to attach to the employer under this doctrine, there must be some fault on the part of the employee. The allegations that the Surgery Center failed to train and supervise its nurses presuppose some negligent act by the nurses that caused Mr. Coulon harm, which the Surgery Center should have prevented by proper training and supervision. Stated differently, while the liability of an employer for negligent training and supervision is direct, for such liability to attach there must have been conduct that caused damage, and this conduct could only have been committed by an employee, ie, a nurse. However, such negligence by the nurses, as employees of the Surgery Center, was specifically considered and rejected by the panel. Thus, it cannot be said now that those allegation's were never before the panel, nor can it be held that those allegations were properly dismissed as premature. •

Moreover, the allegation that the . Surgery Center failed' to “develop, maintain, and enforce proper policies and procedures to prevent surgical infections,” which is a theory of direct liability, also speaks to the training and supervising of the employees in whose hands the prevention of surgical infections falls as a matter of practice. The use of the word “enforce” denotes the effective'carrying out of an'action or’course of action. Mirriam-Webster’s Collegiate Dictionary 272 (1961) references the synonym “implement, mean[ing] to put into effect or operation.” Quite logically, the enforcement of a policy or procedure encompasses the'training and supervising of. the very employees who perform the actions contemplated by the policy or procedure, ie, the carrying out of such policy or procedure. The Surgery Center avers the allegations of negligent training band supervision are brand new allegations that do not correlate to the allegation of a failure to have proper policies and procedures to prevent infection. In particular, it contends the new allegations do not specify in what manner or practice area the nurses were not trained or supervised. However, by alleging in the complaint that the injury incurred by Mr. Coulon was infection from surgery, the petition can reasonably be understood to allege the Surgery Center is liable for failing to train and supervise its nurses to prevent surgical infection. By definition, the enforcing of the Surgery Center’s policies and procedures means putting those policies and procedures into effect, in other words, training and supervising the employees to execute those policies and procedures.

Accordingly, we conclude the allegation that the Surgery Center did not “enforce proper policies and procedures to prevent surgical infections” encompassed the allegation that the Surgery Center did not adequately train and supervise the nurses who treated Mr. Coulon. Thus, we find the plaintiffs’ petition in full survives the exception of prematurity.

CONCLUSION

Based on the foregoing, we expressly adopt the, plaintiffs’ alternative argument that the language in the complaint was sufficient to, include the allegations contained in paragraphs (c) and (d) of the petition. The information contained therein presented enough information for the panel to determine the Surgery Center was “entitled to the protection of the [LMMA],” which affords it the benefit of a medical review panel’s expert opinion regarding. a specification of the standard of care and a determination of whether that standard was breached. Perritt, 849 So.2d at 65. We find that the allegations taken separately, under direct or vicarious liability, are sufficient to encompass the causes of action at 1 missue. Additionally, we note that the coupling of the two allegations renders the complaint more than sufficient to satisfy the pleading requirements of the Act.

Accordingly, we reverse the ruling that sustained the Surgery Center’s exception of prematurity and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Coulon v. Endurance Risk Partners, Inc., et al., 16-264 (La. App. 5 Cir. 5/18/16), — So.3d —.

      . Coulon v. Endurance Risk Partners, Inc., et al., 16-1146 (La. 11/7/16), 209 So.3d 101.

      . These delineated requirements were added by amendment in 2003. See Acts 2003 No. 961 § 1.


source: Caselaw Access Project

author:
GUIDRY, Justice
     Johnson, Chief Justice, WEIMER, J., GUIDRY, Justice, CRICHTON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Corei K. GUIDRY
    No. 2016-KK-1412
    Supreme Court of Louisiana.
    03/15/2017

      ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Leon A. Can-nizzaro, Jr., District Attorney, Donna R. Andrieu, Mithun Burde Kamath, for Applicant.
    ORLEANS PARISH PUBLIC DEFENDER’S OFFICE, Alexis Lauren Chernow, Elisabeth Ford Sgro, for Respondent.
   GUIDRY, Justice

hThe issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.

|,FACTS AND PROCEDURAL HISTORY

The defendant, Corei K. Guidry, was charged by a bill of information with one count of possession with intent to distribute heroin, a violation of La. R.S. 40:966(A)(1); one count of possession with intent to distribute cocaine, a violation of La. R.S. 40:967(B)(1); one count of possession with intent to distribute Tramadol, a violation of La. R.S. 40:969(B)(2); and one count of conspiracy to commit simple escape, a violation of La. R.S. 14:(26)110(A). The charge of possession with intent to distribute heroin carries the highest sentence: ten to fifty years at hard labor, La. R.S. 40:966(B)(1). Prior to the start of the trial, the State filed a motion in limine to exclude mention of an sentence. In its motion, the State sought to prohibit the trial court and the defendant from informing the jury that, if convicted, the defendant could face a possible sentence of life imprisonment as a fourth offender under the Habitual Offender Law, La. R.S. 15:529.1 et seq. The trial court denied the motion, and the court of appeal denied the State’s writ application. The State then sought a stay and writs in this court, which issued a stay and invited a per curiam from the trial court. After supplemental briefing from both parties, this court granted the State’s writ application to review the district court’s ruling. State v. Guidry, 16-1412 (La. 9/16/16), 206 So.3d 199, 2016 WL 5462459.

ANALYSIS

The State and the defendant agree the applicable decision of this court with regard to the inclusion of sentencing ranges in arguments to the jury and jury instructions provides as follows:

When the penalty imposed by the statute is a mandatory one, the trial judge must inform the jury of the penalty on request of the defendant and must permit the defense to argue the penalty to the jury. State v. Hooks, 421 So.2d 880 (La. 1982); State v. Washington, 367 So.2d 4 (La. 1978). In instances other than when a mandatory legislative penalty with no judicial discretion as to its imposition is required following verdict, the decision to permit or deny an instruction or argument on an offense’s penalty is within the discretion of the trial judge. State v. Williams, 420 So.2d 1116 (La. 1982); State v. Dawson, 392 So.2d 445 (La. 1980); State v. Carthan, 377 So.2d 308 (La.1979); State v. Blackwell, 298 So.2d 798 (La. 1973) (on rehearing) ....

State v. Jackson, 450 So.2d 621, 633-34 (La. 1984).

Although the State originally argued below that the trial court abused its discretion in allowing the jury to be informed of the sentence the defendant could face if his sentence was successfully enhanced under the Habitual Offender Law, the State now argues the court should remove from the trial court’s discretion the decision to permit criminal juries to be made aware of possible sentences under the Habitual Offender Law. The defendant counters the law should remain as settled for some forty years, that an enhanced sentence under the Habitual Offender Law qualifies as an “instance[ ] other than when a mandatory legislative penalty with no judicial discretion as to its imposition is required following verdict,” and that the trial court under the facts of this case did not abuse its discretion in permitting the jury to be informed of the possible mandatory minimum sentence as a fourth felony offender. For the reasons set forth below, we hold the trial court erred in applying Jackson to allow the jury to be informed of the possible enhancement of the defendant’s sentence under the Habitual Offender Law if the defendant were convicted and if the State should successfully seek to enhance his sentence under the Habitual Offender Law.

|4In prefacing our reasons, a brief outline of the applicable law and the jurisprudence is in order. We commence with the statutes governing the scope of the argument and the duties of the trial court in charging the jury.

Louisiana Code of Criminal Procedure article 774 states, in pertinent part that “[t]he argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” .The court shall charge the jury: .

(1) As to the law applicable to the case;
(2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to. accept and to apply the law as given by the court; and
(3) That the jury alone shall determine the weight and credibility of the evidence.
La. C.Cr.P. art. 802.

With regard to sentencing La. C.Cr.P. art. 871 states in part that “[a] sentence is the penalty imposed by the court on a defendant." The “law applicable to the case” is, therefore, the critical inquiry in determining'whether a jury may be informed 'of potential sentencing, as discussed more fully below. :

Prior to 1974, this court’s jurisprudence clearly disfavored parties and trial courts informing a criminal jury of potential sentences, whether the sentence was mandatory or not, unless the offense charged was capital in nature. In State v. Harris, 258 La. 720, 247 So.2d 847 (1971), this court examined the meaning of “the law applicable to the case” to determine whether sentencing fell within the scope of La. C.Cr.P. arts. 774 and 802. There, the defendant sought to argue to the jury the severity of the penalty for armed robbery, pointing out the crime carried a maximum sentence of ninety-nine years imprisonment, without benefit of ^probation, parole, or suspension of sentence. He also sought to inform the jury of the minimum mandatory sentence. Ultimately, the trial judge ruled defense counsel could not argue the sentencing law to the jury. In affirming the ruling, the Harris court explained:

The determination of the appropriate penalty and the imposition of sentence in non-capital cases are functions of the judge. The jury is concerned only with guilt.
Under Article 802 of the Louisiana Code of Criminal Procedure, the judge is required to-charge the -jury as to the law applicable to the case. Under Article 774, argument to the jury is restricted to the evidence admitted, to the lack of evidence, to conclusions of fact, and. to the law applicable to the case.
We have held that sentence regulations in non-capital cases, such as those relating to mandatory terms, probation, or parole, are inappropriate subjects for the judge’s charge to the jury. These matters are foreign to the jury’s function of guilt determination and, consequently, form no part of “the law applicable to the case.” See State v. Andrus, 250 La. 765, 199 So.2d 867 [ (1967)]; State v. Green, 244 La. 80, 150 So.2d 571 [ (1963) ].
In State v. Green, supra, we said:
In this requested special charge defendant sought to have the jury charged what sentence could be imposed under the law in the event of conviction for violation of the Uniform Narcotic Drug Act, under which defendant was being tried, and also charged that a person so convicted was without the benefit of parole, probation, or suspension of sentence.
Under the law of this state the judge is required to charge the jury all the law applicable to the accused’s guilt or innocence of the crime charged, or any lesser crime included therein, in the light of the evidence adduced. It is the duty of the jury in such cases to determine the guilt; or innocence of the accused, but in the event of conviction it is the duty of the judge, and not the jury, to impose sentence. The fixing of the punishment for conviction is solely within the province of the judge, and is no concern of the jury except in capital cases where the jury may return a verdict of ‘guilty without capital punishment’ and preclude the judge from imposing the death sentence. Therefore this requested special charge was not pertinent, and was correctly refused.
By the same token, sentence regulations form no part of the applicable law to be argued by counsel before the jury. To allow | (¡argument of these matters would inject irrelevant considerations into the jury’s deliberations as to guilt.
The prevailing rule is that when the penalty is the responsibility of the judge alone, the sentencing law is an improper subject for argument to the jury. Abney v. State, 123 Miss. 546, 86 So. 341; 53 Am.Jur., Trial, § 467, p. 373. The supporting decisions from other jurisdictions are collated in the Annotation, Argument to Jury—Law or Lawbooks, 67 A.L.R.2d 245, 294. These decisions are based upon the sound principle that le,gal matters irrevelant [sic] to guilt should not be pressed "upon the jury.

Harris, 258 La. at 729-31, 247 So.2d at 850-51.

In 1974, the court again endorsed the principle that juries were not concerned with issues outside of the guilt or innocence of the defendant* albeit with the exception of capital cases, and affirmed a trial court’s refusal to instruct the jury on the penalty range for the charge of armed robbery. State v. Blackwell, 298 So.2d 798 (La. 1973). On rehearing, the Blackwell court followed Harris to hold that “[i]n those jurisdictions where the-jury determines only guilt or innocence and the court imposes the penalty, it is not error for the court to refuse to instruct the jury on possible penalties. The general view is that penalty is simply of no concern to the jury.” 298 So.2d at 804 (on rehearing). The Blackwell court went on to note, however, that “[o]ur law does not require that the judge charge the jury on penalty, nor, however, does it prohibit such a charge.” Id. at 804 and 804 n.3x (noting that it is not reversible error to instruct thé jury on thé penalty and" that many judges in Louisiana regularly do so). The Blackwell court further distinguished non-capital cases from capital cases, wherein there is a mandatory 17minimum sentence of life imprisonment “sufficient to justify informing the capital case jury of the effect of its verdict.” Blackwell, 298 So.2d at 804 (on rehearing).

In State v. Prater, 337 So.2d 1107 (La. 1976), the defendant contended the trial judge had erred in refusing to charge the jury that, in the event defendant was found guilty of distribution of heroin, a mandatory life sentence would be imposed. The defendant argued justice requires the jury be informed of this mandatory penalty so that Jurors will give more careful consideration to their verdict. The Prater court in a plurality decision found no abuse of the trial court’s discretion, citing Harris and Blaclmell, However, one justice concurred only in the result, noting that four justices, a majority, had expressed their view that jurors should be fully informed of the consequences of their verdicts, including the penalties involved, see 337 So.2d at 1109-10, Tate, J., concurring, at least where there is no sentencing discretion following a conviction, see 337 So.2d at 1110-11, Calogero, J., dissenting. The concurring justice signaled the erosion of Blackwell, and by association the principle espoused in Harris, noting that “in any case tried after the finality of the present decision I shall regard the bench and bar as on notice that, in the view of a majority of this court, a charge and argument may be required and permitted, despite Blackwell, when the statutory offense requires a mandatory legislative penalty, with no judicial discretion as to its imposition following verdict. Thus, to this extent at least, Blackwell may be regarded as overruled prospectively by the present opinion.” 337 So.2d at 1110, Tate, J., concurring.

The court in State v. Milby, 345 So.2d 18 (La. 1977), introduced the first iteration of what has become more familiarly known as the Jackson rule, set forth above at the outset of this analysis. As the State points out, subsequent cases more explicitly adopted the view that trial courts must allow juries to be informed of the | ^sentence where the sentence following a conviction is mandatory. Additionally, however, subsequent cases interpreted language from Blackwell, language the State describes as dictum, that the trial court has the discretion under the law to allow, or not to allow, jury instruction or argument on penalties that are otherwise not mandatory. The Milby court set forth the state of the law, explaining as follows:

In State v. Blackwell, 298 So.2d 798 (La. 1973), we held that jury instruction or argument on penalties may be allowed or not, within the discretion of the trial court, because imposition of sentencing is within the province of the judge and is not a jury function. In State v. Prater, 337 So.2d 1107 (La. 1976), a majority of this court agreed that the Blackwell rationale is inapplicable where, upon conviction, the trial judge must impose a mandatory sentence; and that, therefore, the trial court is required, upon request of the defendant, to charge with regard to a mandatory penalty, because then the penalty is in effect determined by the jury rather than by the judge.

State v. Milby, 345 So.2d at 21. This modification of Blackwell applied prospectively after Prater. Milby, 345 So.2d at 21.

Although the Jackson rule has been settled law, we agree the time has come to address the Jackson rule in the context of whether to permit disclosure to the jury of mandatory minimum sentences that could possibly be imposed under the Habitual Offender Law. To that end, we turn to the Habitual Offender Law itself and the jurisprudence applying Jackson in that particular context.

The procedure under the Habitual Offender Law, La. R.S. 15:529.1, allows for a sentence to be enhanced based on the degree of a defendant’s recidivism. As the State points out, unless and until a bill of information separate from the underlying charging document is filed by the district attorney after a defendant’s felony conviction, there can be no finding of habitual offender status to justify an enhanced penalty under " the law. See La. R.S. 15:529.1(D)(1)(a). A defendant may be deemed a multiple offender only after the following sequence of events occurs: the filing of a multiple offender bill of information; an appearance before the court; |fla contradictory hearing, if necessary; the presentation of evidence on which the district attorney bears the burden of proof beyond a reasonable doubt on any issue of fact; and either a finding by the court that the defendant has been convicted of a pri- or felony or felonies or the defendant’s acknowledgment or confession in open court, after being duly cautioned as to his rights, that he has been so convicted. La. R.S. 15:529.1(D)(1)(a) and (b), (D)(2), and (D)(3). It is only “when the judge finds” the defendant has jaeen convicted of a pri- or felony or felonies, or the defendant acknowledges such status, that the court “shall sentence him to the punishment prescribed in this Section.” La. R.S. 15:529.1(D)(3).

Several cases from the court of appeal have held the trial court did not abuse its discretion in disallowing the jury to be informed of the potential sentence under the Habitual Offender Law. In State v. Dominick, 94-1368, pp. 4-5 (La.App. 4 Cir. 4/26/95), 658 So.2d 1, 3, writ denied, 95-2291 (La. 2/2/96), 666 So.2d 1091, the Fourth Circuit applied Jackson to a case in which there was a possibility that a multiple bill would be filed upon conviction to enhance the defendant’s sentence. There, the defendant had initially pleaded guilty with the understanding that he would not be multiple billed, but the State, notwithstanding that agreement, filed a multiple bill. Consequently, the defendant was allowed to withdraw his guilty plea. The trial court granted the State’s motion in limine prohibiting defense counsel from relating to the jury the minimum mandatory period of incarceration to which appellant could be exposed under the Habitual Offender Law. The defendant was convicted, and on appeal he maintained that, considering the State’s clear and known intention to file a multiple offender bill alleging three predicate offenses, the defense should have been permitted to advise the jury that a conviction would result in a minimum mandatory sentence of twenty years flat time. The court of appeal found no merit to that claim:

hnAlthough the multiple bill carries a mandatory minimum, the filing of the multiple bill is optional with the State. In any event, the allegations of the multiple bill must be proved before the mandatory minimum sentence becomes an issue and under [State v. Dorthey, 623 So.2d 1276 (La. 1993)], the trial court has the discretion in not applying the mandatory minimum sentence if the facts warrant. Accordingly, any instruction or argument to the jury relative to the minimum sentence that a defendant could receive as a quadruple offender is within the discretion of the trial judge. Accordingly, this assignment is without merit.

Dominick, 94-1368, p. 5, 658 So.2d at 4. The State contends the Fourth Circuit thus held that no mention of a possible recidivist enhancement sentence was allowed, even when it was all but inevitable that a multiple offender bill would be filed.

Similarly, in State v. Guillard, 98-0504 (La.App. 4 Cir. 4/7/99), 736 So.2d 273, 278-79, the defendant asserted the trial court erred in failing to grant his motion for a mistrial due to the erroneous instructions gratuitously given to the jury regarding sentencing. He contended the trial court had volunteered information on the sentencing range for attempted possession of cocaine and erroneously stated he could get probation, when he was not eligible for probation as a putative third offender. Defense counsel requested a mistrial, which the trial court denied. The Fourth Circuit affirmed, reasoning as follows:

Appellant contends that the jury must be informed that the sentencing range differs for multiple offenders. In the instant case, appellant elected not to testi-fry; thus, his prior convictions were not presented to the jury. Had the jury been instructed on the sentencing range for habitual offenders, the- jury would have known that appellant had been previously convicted. Such result would violate his Fifth Amendment rights.
Furthermore, a possible adjudication as a habitual offender is a separate proceeding that punishes one for his status as a recidivist, not for the most recent conviction. Since á multiple offender bill of information is not mandatory, but at the discretion of the prosecutor, the possibility that- appellant may later be subject to sentence enhancement-as a recidivist is speculative. At the time of trial, no such bill had been filed, and there was no showing that even-if one was filed later, that the State could prove appellant’s status as a recidivist.

Guillard, 98-0504, p. 9, 736 So.2d at 278-79.

In State v. Richardson, 02-1207, pp. 2-5 (La.App. 4 Cir. 10/9/02), 830 So.2d 344, 345-46, the defendant moved for-a mistrial, arguing statements made by the prosecutor and the trial judge that the defendant could be sentenced up to five years, and the prosecutor’s statement implying the defendant could possibly walk out of court a free man, were improper. The district court denied the motion, reasoning the defendant had opened the door by stating in closing argument that he faced “a long time in prison,” (presumably referring to the fact that the defendant was potentially a multiple offender),- and the State was justified in responding to the defendant’s assertion. The trial court found the defendant's tactics to be improper because his argument relied solely on sympathy, passion, prejudice, and bias, rather than facts, guilt, or the lack thereof. The Fourth Circuit affirmed the denial of the mistrial, reasoning as follows:

The trial court did not err by allowing argument and instruction concerning the sentencing range without regard to a multiple bill. As the Louisiana Supreme Court found.in Jackson, the choice to permit an argument about the penalty is within the discretion of the trial judge. Furthermore, while the state filed a habitual offender bill of information after defendant was convicted, no habitual offender hearing has been held. Under our ruling in Guillará, the state would still have to prove that defendant is a recidivist in order to increase his sentence and, thus, until that occurs, defendant’s sentence remains within the original range. Therefore, in addition to the fact that defendant opened the door for a discussion on the sentencing range, the trial court’s instruction on the sentencing range ^as -not only within his discretion, but accurate. -

Richardson, 02-1207, pp. 4-5, 830 So.2d at 346.

In addition to the Fourth Circuit jurisprudence, this court has recently,, addressed essentially the same issue presented in this case. In State v. Lucien, 16-715 (La. 4/19/16), 197 So.3d 689, 2016 WL 4482540, the defendant was charged with possession with intent to distribute heroin, resisting an officer, and obstruction of justice. The State |iafiled a Prieur notice, indicating its intent to introduce evidence of two prior convictions for possession of heroin with intent to distribute and possession of cocaine with intent to distribute. The trial court granted the State’s request to introduce evidence of the prior convictions. The .trial court also ruled that, if the State introduces evidence of the prior convictions, the defense may inform the jury that the defendant faces a life sentence as a third' offender under the Habitual Offender Law. The State sought writs, which the court of appeal denied. In this court, the State filed a writ application seeking to prohibit the defendant from mentioning that he faced the possibility of a life sentence (1) if convicted and (2) if the State filed a multiple offender bill and prevailed. This court summarily granted the State’s writ application with the following order, specifically finding the trial court had abused its discretion in its ruling:

Granted. We find the district court abused its discretion. The ruling'of the district court is reversed insofar as it permits the defendant to inform the jury of the possible sentence faced by the defendant if defendant is convicted and the state successfully pursues recidivist sentence enhancement. The matter is remanded to the district court for further proceedings consistent with this order.

Lucien, 16-715, p.1, 197 So.3d at 689-90.

In the instant case, the trial court gave reasons for denying the State’s motion in limine. In au explanatory per curiam, the trial court framed the issue in terms of “whether it has abused its discretion to allow mentioning to the jury that, if convicted, the defendant could receive a minimum sentence pursuant to the habitual offender law.” The trial court cited State v. Dominick, 94-1368, p. 5, 658 So.2d at 3, and State v. Jackson, 450 So.2d at 633-34. The trial court indicated its belief that “it is clearly misleading for the state to agree with mentioning before the jury, the mandatory minimum sentence of defendant’s instant charge, but not the [-^mandatory minimum sentence imposed pursuant to the habitual offender law.” The trial court elaborated:

•Although the filing of the multiple bill is optional with the state, if the allegations are proven, this court is unpersuaded that the state will not vigorously pursue the allegations set forth in a multiple bill so that the mandatory minimum could apply to defendant’s sentence. More particularly, since the defendant has four open cases before this court,- in this instance, the court exercises its discretion because the court finds that the interest of justice is not served if the State is allowed to “have-its cake and eat it too.”

The trial court summed up the State’s strategy as follows: “Apparently, the State seems content to utilize the options of insinuating the filing of a multiple bill during plea negotiations, but hiding its hand when the defendant exercises his constitutional right to proceed to trial.” The trial court concluded, stating: “Given the facts, the law, arguments of counsel, and the totality of the circumstances in this case, this court finds that the ruling was a fair and legal decision well within the court’s discretion and at no time did the court in any way ■abuse its discretion.”

The court of appeal denied the State’s writ application. The dissenting judge found “that the issue of possible sentences which may be imposed if the State pursues a multiple bill against the defendant is too attenuated from the guilt phase of the trial to be discussed in front of the jury." State v. Guidry, 16-0763 (La. App. 4 Cir. 07/27/16) (unpublished), Lobrano, J., dissenting (emphasis in original). The dissenting judge would have found the trial court’s ruling was “an abüse of discretion ‘insofar as it permits the defendant to inform the jury of the possible sentence faced by defendant if defendant is convicted and the state successfully pursues' recidivist sentence enhancement.’ State v. Michael Lucien, 2016-KK-0715 (La. 4/19/16), 197 So.3d 689.” Id.

The issue presented is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by him if, after a | ^conviction on the offense being tried, he were to be sentenced as a multiple offender under the Habitual Offender Law. The trial court found it dispositive that the State in all likelihood would file a multiple offender bill if the defendant went to trial, and the State had used the. high probability of an enhanced sentence in an attempt to leverage a guilty plea. The defendant similarly contends the Orleans Parish District Attorney’s Office routinely chooses to exercise its discretion to file a multiple offender bill at rates significantly higher than other parishes. That the District Attorney raises the possibility of an enhanced sentence with a mandatory minimum is, to the defense, an unfair advantage in plea negotiations. The jurisprudence resulting in Jackson, the defendant argues, manifests the concern the courts had in the 1970s and 1980s about the trend toward legislatively-determined mandatory minimum sentences, which removed the discretion historically afforded to judges during sentencing.

We find no merit to the defendant’s arguments. Even if the State is certain to eventually file a multiple offender bill, we do not find this fact dispositive in favor of informing the jury of the possible mandatory minimum sentences if the allegations in the multiple offender bill are sufficiently proven. Similarly, because the State has outlined the consequences of a multiple offender bill during plea negotiations does not translate into an unfair advantage to the State, such that the jury should necessarily be informed of the possible sentences under the Habitual Offender Law.

A multiple offender bill is generally not filed until after conviction, such that it does not logically constitute the “law of the case” for the subject offense at trial as it pertains to the scope of the jury’s duty as the factfinder. The jury has no role in the enhancement of a sentence under the Habitual Offender Law, because once hfithe multiple offender bill is filed after conviction, the adversarial hearing is conducted before the judge and the State must prove to the judge the allegations in the multiple offender bill. The principle that legal matters irrelevant to guilt should not be pressed upon the jury, which we explained in Harris, 258 La. at 729-31, 247 So.2d at 847-51, applies even more forcefully in the context of the Habitual Offender Law. It is axiomatic that, if the trial court has not yet conducted a sentencing hearing, any sentence as a multiple offender is speculative and indeterminate. As the Guillará court noted, “a possible adjudication as a habitual offender is a separate proceeding that punishes one for his status as a recidivist, not for the most recent conviction.” 98-0504, p. 9, 736 So.2d at 278-79. Thus, the defendant’s status as a putative multiple offender is irrelevant to the determination of guilt or innocence of the tried offense. Allowing the jury to be informed of the potential mandatory minimum sentences if and when the defendant is proven to be a second, third, or fourth felony offender has the potential to shift the focus of the jury from a determination of guilt or innocence to issues regarding sentencing. Such a shift would likely confuse the issues for which the jury is responsible and invite jurors to speculate about sentencing, including why a particular defendant is facing such a term of imprisonment. In sum, the issue of possible mandatory minimum sentences that could be imposed if the State successfully pursues enhancement through a multiple offender bill is too far attenuated from the guilt phase of trial to be discussed before a jury.

We thus hold that to allow such disclosure constitutes error. The jurisprudence culminating in the Jackson rule developed outside of the context of the Habitual Offender Law. The defendant asserts the non-mandatory nature of |1fisueh enhanced sentencing should be subject to the same jurisprudential rules, and therefore should be subject to the same discretion of a trial court to permit the jury to be made aware of the potential sentence as a multiple offender. However, because the jury has no constitutional or statutory role in the enhancement of a sentence under the Habitual Offender Law, we find the trial court erred in allowing a jury to be informed of the possible sentence should the defendant be convicted and his sentence enhanced under the Habitual Offender Law. Accordingly, the district court’s ruling is reversed, the stay issued by this court is hereby lifted, and the matter is remanded to the district court for further proceedings.

REVERSED; STAY LIFTED; REMANDED

JOHNSON, Chief Justice, dissents and assigns reasons

WEIMER, Justice, dissents and assigns reasons.

GUIDRY, Justice, additionally concurs and assigns reasons.

CRICHTON, Justice, additionally concurs and assigns reasons.

GENOVESE, Justice, additionally concurs for the reasons assigned by Justice Guidry and Justice Crichton.

Johnson, Chief Justice,

dissents and assigns reasons

hi respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender.

It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference— whether by the court or in argument from the parties—to the enhanced sentence a defendant will face if he is | ¡.convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.

The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty .provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.

I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District At-' torney’s Office almost reflexively (through his-assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a'prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual'Offender Law, both during pretrial 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 and found the number of newly-l ^sentenced defendants who have-received substantially enhanced punishments uncjer the law has more than doubled over the past 10 years. Even more concerning, the majority of these defendants come from just a handful of parishes. The biggest contributor, by far, has been Orleans Parish. In 2015, Orleans Parish surpassed every other judicial district in the state in its use of the Habitual Offender Law, sending 154 offenders to serve lengthy prison sentences. This figure reflects a shocking 15-fold increase over the year 2006, during which just 10 offenders from Orleans Parish were sentenced under the law, 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. 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. Given these facts, it can |.(hardly be labeled as mere conjecture that the District Attorney’s Office will again invoke the Habitual' Offender Law if it obtains a conviction in this case.

I also find it fundamentally unfair that the District Attorney has apparently adopted a policy by which his staff leverage the threat of enhanced punishment while seeking to extract guilty pleas with one hand, as was done in this case, while later seeking with the other hand to vigorously keep a defendant who has elected to exercise his right to a jury trial from mentioning the life sentence he will face if convicted and adjudged as a recidivist, by arguing that the possibility of such an enhanced sentence is simply too remote.

Even granting that a habitual ’offender hearing constitutes a separate proceeding, to conclude that the jury is an unfit audience for any references to the potential habitual offender sentence, because that putative fate is too attenuated from the case at bar, is’ to ignore the reality reflected in the statistics above. Though the majority portrays habitual offender proceedings as involving arduous hurdles for the state, Louisiana jurisprudence is plain that if the state files a habitual offender bill of information, as it has already indicated its intent to do here if it obtains conviction at trial, the trial court will have little option but to impose an enhanced punishment as mandated by R.S. 15:529.1, as long as the state has presented “any competent evidence” of defendant’s prior felony convictions and his identity as the person convicted. State v. White, 13-1525, p. 2 (La. 11/8/13), 130 So.3d 298, 300. In this way, the highly likely sentencing outcome here appears more akin to those in the cases in which this Court has found that the judge Rmust inform the. jury of the sentence; a rule founded on the premise that the jury is entitled to know the certain consequences of its verdict. See State v. Milby, 345 So.2d 18, 21 (La. 1977) (“[If], upon conviction, the trial judge must impose a mandatory sentence^] .... the trial- court is required, upon request of the defendant, to charge with regard to a mandatory penalty, because then the penalty is in effect determined by the jury rather than by the judge.”).

Finally, to the extent the majority expresses concern about allowing mention of a habitual offender sentence because it would infringe upon the right against self-incrimination, I find its concern misguided. A defendant who has elected to stand trial may waive his right not to -incriminate himself. The most common and direct means of such a waiver is by his taking the stand and testifying, however, neither the state nor the majority specify’ any authority providing that this is the sole means of effecting the waiver. Furthermore, I reject the notion that a right that is intended to protect a defendant may be used against him by the prosecution in this manner, ie., to keep what appears to be an all-but-inevitable habitual offender sentence from the jury under the pretense of effectuating this Fifth Amendment protection. Even the state has conceded that in cases in which a defendant elects to testify (a fact which remains to be seen here) and thereby expose himself to cross-examination about past convictions, he would thereafter be entitled to reference any enhanced punishment he would face as a recidivist.

Because the Louisiana jurisprudence is clear that it is within a trial judge’s discretion to permit instruction or argument as to sentencing in a case like this, and because the state has not shown any convincing reason specific to this case (let alone one which would not also apply in any number of prosecutions in Orleans Parish) that the trial court abused its discretion, I would deny the state’s writ and leave intact the trial court’s ruling. The majority’s new rule will only foster the ^continued overuse of the Habitual Offender Law at a time when our state can scarcely afford it.

In fiscal year 2015, Louisiana spent over $680 million on incarceration, an increase of more than $25 million over the prior year. Continued abuse of the Habitual Offender Law serves only to exacerbate this already unsustainable burden that Louisiana taxpayers have been forced to shoulder to incarcerate more offenders than any other state, per capita. As I explained in State v. Johnson, 96-3041 (La. 3/4/98), 709 So.2d 679, 682, the Habitual Offender Law serves no worthwhile goal when, as appears likely in the instant case, it is used to extract a disproportionately harsh punishment for a less serious offense.

I am still amazed that the defendant in Johnson, 96-3041, supra, is required to serve a shockingly disproportionate sentence of 26 years and eight months, a punishment which effectively requires that he spend the bulk of his remaining years in prison, merely for stealing a cheap pair of shoes. I will feel a similar sense of shock and dismay if the defendant here is ultimately sentenced to life as a habitual offender for a narcotics offense. The time has long since come for us to stop adding to the overflowing ranks of those sentenced to extremely lengthy terms for property and drug crimes. I remain firmly convinced that such results are not only draconian, but an unjustified waste of taxpayer dollars that violate the constitutional prohibition on excessive punishment. See, e.g., State v. Muhammad, 03-2991, p. 1 (La. 5/25/04), 875 So.2d 45, 57 (Johnson, J., dissenting) (within days of completing his original net term of four years imprisonment for access device fraud, essentially “identity theft,” the state filed a habitual offender bill and defendant was adjudged a recidivist and resentenced to life imprisonment, a sentence possibly more cruel than the punishment meted out in countries that 1 /‘mandate chopping off a hand as the penalty for theft.”); State v. Parker, 03-0924, p. 1 (La. 4/14/04), 871 So.2d 317, 329 (Johnson, J. dissenting). The jail space that defendant will all but certainly occupy for the remainder of his life, if found guilty and adjudged a recidivist, should instead be reserved for a violent criminal. Now, more than ever, we must abandon all practices which result in condemnation to a life behind bars for anyone other than the most dangerous among us.

WEIMER, J.,

dissenting.

liThe singular issue in this case, ie., whether the district court may inform the jury of potential sentencing under the Habitual Offender Law, has no specific statutory law that may be consulted for its resolution. The Habitual Offender Law does not speak to the issue; neither does the Code of Criminal Procedure-at least not directly. Thus, the court is left with general legislative propositions for guidance. For example: “A court possesses inherently all powers necessary for the exercise of its jurisdiction .... It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings - that justice is done.” La. C.Cr.P. art. 17. See also La. C.Cr.P. art. 774 (indicating “the law applicable to the case” is a proper topic of argument at trial); and La. C.Cr.P. art. 802 (requiring the court to charge the jury “[a]s to the law applicable to the case”). It has long been recognized that pursuant to La. C.Cr.P. art. 17, discretion is afforded to courts in matters such as this one, in which courts are called on to regulate proceedings in the interest of justice and in the absence of more specific legislative guidance. See State v. Reeves, 268 La. 923, 269 So.2d 815, 816 (1972).

Un my view, there is simply not enough information to reach the majority’s conclusion that “a multiple offender bill is far too attenuated from the guilt phase of trial to be discussed before a jury.” State v. Guidry, 16-1412, slip op. at 15 (La. 3/14/17), 206 So.3d 199. What this court has been informed, by the district court, regarding the prospects of a multiple offender bill is this: “Although the filing of the multiple bill is optional with the state, if the allegations are proven, this court is unpersuaded that the state will not vigorously pursue the allegations set forth in a multiple bill so that the mandatory minimum could apply to defendant’s sentence.” Id., 16-1412, slip op. at 13 (reproducing an excerpt of the district court’s explanatory per curiam opinion).

During oral argument before this court, there was great debate-but no reference to record evidence-regarding the prevalence of multiple offender billing in this particular jurisdiction. In light of the district court’s remarks, I am unwilling to decide that the interests of justice, as described in La. C.Cr.P. art. 17, have not been served by the district court’s ruling.

I do not mean to imply that the issue here is simple. There are excellent arguments on either side of the issue of whether a court should have discretion to inform the jury of multiple offender sentencing, as recounted by the majority. The difficulty of the issue of informing the jury of a non-mandatory sentence was also foreshadowed by this court’s initial vacillation, before settling on the current rule in favor of allowing discretion, some 30 years ago. See State v. Jackson, 450 So.2d 621, 633-34 (La. 1984). Since that time, the legislature has not altered that rule, apparently finding no disagreement with this court’s determination to resolve the issue on a case-by-case basis with discretion afforded to the trial judge, who is most familiar with all the facts and circumstances. The utilization of habitual offender billing presents a different twist on this issue, but before straying too far from the | along-standing rule by essentially making a new, bright-line rule that removes discretion from trial judges without all the facts to justify such a rule, I believe it is important to know more information related to the utilization of the . multiple offender provisions.

Accordingly, I would remand this matter for an evidentiary hearing. Inasmuch as the majority has announced the standard of “attenuation” for deciding cases such as this one, both the prosecution and defense should be afforded the opportunity to make an evidentiary record as to whether multiple offender adjudication is truly attenuated in this particular case. Absent such a hearing, we cannot fully evaluate how attenuated a multiple offender bill may- be here or whether the district court abused its discretion in ruling that the jury would be informed of sentencing under a multiple offender bill.

In conclusion, I do not disagree with the majority’s “attenuation” standard; I find that standard consonant with our prior jurisprudence allowing the exercise of discretion. However, I do not join that part of the.ruling that decides the attenuation issue without evidence, or that part of the ruling that appears to hold that a court never has discretion to disclose possible sentencing through a multiple offender bill. Remanding for an evidentiary hearing, in my view, would allow the district court to adjudicate this case under the newly announced attenuation standard and, as necessary, would allow more informed supervisory and/or appellate review. Thus, I respectfully dissent.

GUIDRY, Justice,

additionally concurs and assigns reasons.

| -¡While I subscribe to the majority opinion’s holding that. State v. Jackson, 450 So.2d 621 (La. 1984), should not be extended to allow the jury to be informed regarding potential mandatory minimum sentences under the Habitual Offender Law, I would go further and reverse Jackson and its earlier iteration in State v. Milby, 345 So. 2d 18 (La. 1977). In my view, the court in State v. Harris, 258 La. 720, 247 So.2d 847 (1971), having examined the meaning of “the law applicable to the case” to determine whether sentencing falls within the scope of La. Code Crim. Proc. 774 and 802, correctly stated the law: when the penalty is the responsibility of the judge alone, the sentencing law is an improper subject for disclosure to the jury. Harris, 258 La. at 731, 247 So.2d at 855. Though the court on rehearing in State v. Blackwell, 298 So.2d 798 (La. 1974), reaffirmed Harris, it subsequently began to go astray in State v. Prater, 337 So.2d 1107 (La. 1976), albeit reaching the correct result in that case, and ultimately departed from strict application of the law in Milby and later Jackson, when neither the constitution nor statutory law regarding the role of. the jury in non-capital cases had changed. I would thus apply the law as written, and return to the rule as articulated in Harris-. Aside from capital cases, it is the duty of the jury to determine the guilt or innocence of the accused based on the evidence adduced, and in the event of conviction, it is the duty of the judge, and not the jury, to impose sentence. Because affixing the | ¿punishment for conviction is solely within the province of the judge, it is of no concern to the jury, and therefore should not be disclosed to the jury whether in the judge’s charge or counsel’s argument. See Harris, 258 La. at 731, 247 So.2d at 855.

CRICHTON, J.,

additionally concurs and assigns reasons.

hi agree with the majority’s treatment of the narrow issue presented by this case. However, I write separately -to voice my support of-Justice Guidry’s additional concurrence, specifically his view that the current jurisprudence subverts the will of the legislature. The Louisiana- Constitution imbues the legislature with the sole authority to define conduct as criminal and provide penalties for such conduct. La. Const. art. 3, § I; State v. Taylor, 479 So.2d 339, 341 (La. 1985). As noted by the majority in its opinion, “the jury is the judge of the law and of the facts on the question of guilt or innocence,” but the court imposes the penalty in non-capital cases. La. C.Cr.P. arts. 802, 871. It is my view that the jurisprudential rule prior to the developments that culminated in State v. Jackson, 450 So.2d 621 (La. 1984), more correctly interpreted and articulated these statutory edicts: “when the penalty is the responsibility of the judge alone, the sentencing law is an improper subject for argument to the jury.” State v. Harris, 258 La. 720, 731, 247 So.2d 847, 851 (1971). Thus, and should litigants challenge the broader issue of jurors and sentencing in the future, it is my view that this Court should examine whether or not to overrule existing precedent and revert to the standard set forth by this Court in the 1971 Harris opinion.

However, I also embrace Chief Justice Johnson’s view, articulated in this case and many others, that the abusive frequency with which a de minimis number |aof jurisdictions invoke habitual offender laws against non-violent actors appears to do little to protect the people of Louisiana, and depletes the already scarce fiscal resources of this state. I further agree with Chief Justice Johnson’s view that the imposition of life sentences on non-violent offenders at a certain point" lacks any meaningful social value and may constitute aberrant cruelty. See, e.g., State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339 (Johnson, J., dissenting); State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672 (Johnson, J., dissenting); State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518 (Johnson, J., dissenting); State v. Parker, 03-0924 (La. 4/14/04), 871 So.2d 317 (Johnson, J., dissenting); Kimbrough v. Cooper, 05-2335 (La. 11/22/05), 915 So.2d 344 (Johnson, J., concurring in part and dissenting in part); State v. Johnson, 96-3041 (La. 3/4/98), 709 So.2d 679 (Johnson, J., dissenting).

The Eighth Amendment to the United States Constitution as well as the laws of this state forbid grossly disproportionate sentences and the needless infliction of pain and suffering. See State v. Lobato, 603 So.2d 739, 751 (La.1992), citing State v. Bonanno, 384 So.2d 355 (La.1980). A sentence may be considered grossly disproportionate if, when weighed against the harm done to society, it shocks the sense of justice. See Lobato, 603 So.2d at 751, citing State v. Hogan, 480 So.2d 288 (La. 1985). I believe we have arrived at a moment where this Court should examine whether or not the abuse of habitual offender laws by a handful of jurisdictions violates these constitutional prerogatives. However, as noted throughout this concurrence, I do not believe the appropriate remedy for curbing state abuse of La. R.S. 15:529.1 lies with the jury, but rather with the trial court judge. Thus, if a defendant believes that' the state has abused its pros-ecutorial discretion in filing a habitual offender bill such that it seeks to impose an unconstitutionally excessive sentence, the defendant should move the court at the sentencing hearing to depart downward from the mandatory minimum- as permitted |aby State v. Dorthey, 623 So.2d 1276 (La. 1993), and, if justice requires, the court ought to grant it. See, e.g., State v. Mosby, 14-2704 (La. 11/20/15), 180 So.3d 1274 (Citing Dorthey, this Court determined that the imposition of a 30-year term of imprisonment on a non-violent offender who was 72 years old and infirm was “grossly out of proportion to the severity of the offense” and amounted to nothing more than the “purposeful imposition of pain and suffering.”).

GENOVESE, J., additionally concurs for the reasons stated by Justice Guidry and Justice Crichton.

       Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

      . The State allows that an exception could be fashioned when the defendant testifies and is confronted before the jury with his prior convictions for impeachment purposes. We need not address that suggestion, as we are not here confronted with that factual scenario.

      . Harris was not a unanimous decision. The concurring justice, 258 La. at 732, 247 So.2d at 851, Tate, J., concurring, sided with the dissenters who reasoned the jury should be informed of the applicable sentencing law: 258 La. at 732-33, 247 So.2d at 851, Dixon, J., dissenting (the jury protects against tyranny of the law and the penalty alone may render a law oppressive), and 258 La. at 734-37, 247 So.2d at 852-53, Barham, J., dissenting (there is no constitutional or statutory prohibition against arguing to thé jury or even charging the jury, as to the penalty that . makes the law criminal, and because juries do in fact consider penalties in arriving at verdict, it would appear to be good law that the ■ jury be correctly informed of the penalty).

      . As the Guillará court also noted, informing the jury of the fact of the defendant’s prior convictions, when he has not taken the stand, raises important constitutional issues.

      . See State v. Jackson, 450 So.2d 621, 633-34 (La. 1984); State v. Williams, 420 So.2d 1116, 1122 (La. 1982); State v. Dawson, 392 So.2d 445, 447-48 (La. 1980) (rejecting as meritless the argument that the trial court erred when it instructed jury as to the "irrelevant" penalties for responsive verdicts, in addition to the mandatory sentence for the charged offense, because the "charge to the jury concerning the penalties for the responsive verdicts was within the trial court’s discretion.”); State v. Bell, 377 So.2d 275, 282 (La. 1979) (within trial court discretion whether to refuse argument involving penalties); State v. Blackwell, 298 So.2d 798, 804 (La. 1973) ("Our law does not require that the judge charge the jury on penalty, nor, however, does it prohibit such a charge.”); see also State v. Cooper, 96-0119, p. 12, (La.App. 3 Cir. 7/17/96), 678 So.2d 59, 66 (decision to include in the jury instructions the penalties for the charged offense and for all lesser included offenses rested within the trial judge’s discretion), writ denied, 96-2121 (La. 1/24/97), 686 So.2d 857.

      . See La.C.Cr.P. art. 774 (“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or défendant may draw therefrom, and to the law applicable to the case") (emphasis added); cf. La.C.Cr.P. art. 802 (the coiirt ■ shall charge the jury as to the law applicable to the case),

      . The study was conducted in accordance with House Bill 82 of the 2016 Legislative Session convening the Justice Reinvestment Task Force, The Task Force has been ■ charged to analyze the drivers of the state's prison population. Surveying 10 years of data from the Department of Corrections and Public Safety, Pew has concluded that offenders sentenced under the habitual offender law represent a small yet growing share of prison admissions. See Pew Charitable Trusts, Louisiana Data Analysis Part II; Prison Trends Cont. (September 23, 2016) (citing Department of Corrections data from 2006-15).

      . While in 2006,' 157 prisoners faced enhanced punishment under tjie law, the number of defendants sentenced as recidivists had risen to 365 by 2015. Id.

      . Id.

      . In comparison, the Pew data shows that Jefferson Parish District Attorney Paul Con-nick convicted 116 offenders under this statute in 2015, while St,..Tammany and Washington Parish charted a combined 64 newly-sentenced prisoners under the habitual offender law. None of the other 39 parishes in the state sentenced more than 3 people as habitual offenders last year. Id.

      . 2015 Department of Corrections data shows that nearly three quarters of habitual offender admissions have a primary drug or property offense, while just 14% have a violent primary offense, with 10% being defined as other.

      . Louisiana Legislative Auditor, Evaluation of Strategies to Reduce Louisiana’s Incarceration Rate and Costs for Nonviolent Offenders (Aug. 31, 2016), available online as of Feb. 6, 2017 at https://app.lla.state.la.us/PublicReports.nsf/ DB26F2309F9783F2862580200077A2 CD/$FILE/00010B73.pdf.

      . In White, the Court, explained that "[t]o meet its burden under the Habitual Offender Act, the State must establish both the prior felony conviction and the defendant's identity as the same person who committed that prior felony,” but made, abundantly clear that the habitual offender law does not require any specific type of evidence to satisfy the state's burden at the habitual offender hearing. Rather, the defendant’s prior convictions "may be proved by any competent evidence." Id. 1525, p. 2, 130 So.3d at 300.

      . Legislative Auditor, Evaluation of Strategies, supra.


author: PER CURIAM:

text:
    STATE EX REL. Edward MORGAN v. STATE of Louisiana
    No. 16-KH-1744
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Morgan v. State, 16-0471 (La. 6/16/17), 221 So.3d 838, 2017 WL 2609621. In addition, relator fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


text:
    STATE EX REL. Bryin Scott LANDRY v. STATE of Louisiana
    No. 16-KH-0573
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| ¶ Denied. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his second application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: PER CURIAM

text:
    IN RE: Kathy McCoy O’QUINN
    NO. 2017-B-0679
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM

|! Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Kathy McCoy O’Quinn, an attorney licensed to practice law in Louisiana and Arizona, based upon discipline imposed by the Supreme Court of Arizona.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Count I—The England Matter

In July 2015, Jaime England hired respondent to represent him in a criminal matter in Maricopa County, Arizona. Mr. England paid respondent $5,000 for the representation, which included filing a special action with the court of appeal. The court of appeal dismissed Mr. England’s matter because respondent failed to comply with an administrative order. Despite both verbal and written requests from Mr. England and his family, respondent failed to return Mr. England’s client file in a timely manner.

19Count II—The BrooksfWhite Matter

In April 2014, respondent was retained to represent Walter Lee Brooks in a criminal matter in Maricopa County, Arizona. In December 2014, respondent was retained to represent Edgar Allan White, Jr. in a separate but related criminal matter in Maricopa County. Both Mr. Brooks and Mr. White eventually requested that respondent be removed from their cases due to perceived inaction and lack of communication, which requests were granted. The court ordered respondent to appear on February 23, 2016 for show cause hearings, but she failed to appear.

Count III—The Schatz Matter

In August 2015, Craig Schatz paid respondent $3,500 to clear his driving records in multiple states. Thereafter, despite numerous attempts, neither Mr. Schatz nor his mother was able to contact respondent regarding the status of his legal matter. In October 2015, Mr. Schatz and his mother requested that respondent cease working on the matter and refund any unearned fee. On December 12, 2015, respondent informed Mr. Schatz’s .mother that she would not refund any of the fee paid. Despite repeated requests, respondent failed to account for the fees or return the client file. Court records revealed that respondent did not appear in or file any documents in any of Mr. Schatz’s active or completed cases, She also failed to respond to numerous letters about her: conduct in this matter from the State Bar of Arizona.

In the latter part of August 2016, the State Bar of Arizona received information that respondent was evicted from her apartment and left behind eleven boxes of client files (as well as all of her furniture and two cats). Shortly thereafter, the State Bar’s Conservatorship Coordinator located and took possession of the abandoned client files from' respondent’s apartment and additional client files from the apartment complex dumpster. '

|sOn February 2, 2017, the Supreme Court of Arizona disbarred respondent for violating several provisions of Arizona’s Rules of Professional Conduct. The Supreme Court of Arizona also ordered respondent to pay restitution, plus legal interest, to Mr. England and Mr, Schatz.

After receiving notice of the Arizona order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A certified copy of the decision and order of the Supreme Court of Arizona was attached to the motion. On April 27, 2017, we rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response-in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical ‘discipline .., unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity- to be heard as to constitute a deprivation. of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its' duty,' accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court, would result in •grave injustice or be offensive to the public policy of the jurisdiction; or ■
(4) The misconduct established warrants substantially different discipline in this state; .,,
|Jf this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden , is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, respondent has made no showing of infirmities in the Arizona proceeding, nor do we discern any from our review of the record. Furthermore, we find there is no reason to. deviate from the sanction imposed in Arizona as only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La. 1/13/06), 918 So.2d 461. See also In re Zdravkovich, 831 A.2d 964, 968-69 (D.C. 2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Under these circumstances, it is appropriate to defer to the Arizona judgment imposing discipline upon respondent. Accordingly, we will impose the same discipline against respondent as was imposed in Arizona and order that she be disbarred.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it. is ordered that respondent, Kathy McCoy O'Quinn, Louisiana Bar Roll number 14195, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys, and her license to practice law in the State of Louisiana shall be revoked.

CLARK, J., recused.

      . In 2008, this court imposed reciprocal discipline upon respondent, in the form of a suspension of six months and one day, based on discipline imposed by the Supreme Court of Arizona. In re: O’Quinn, 07-2018 (La. 3/7/08), 976 So.2d 1265. Her reinstatement to the practice of law in Louisiana from this suspension occurred on July 21, 2015, However, she has been ineligible to practice law in Louisiana since June 3, 2016 for failing to comply with mandatory continuing legal education requirements. She is also ineligible to practice law for failing to pay bar dues and the disciplinary assessment, as well as failing to file her trust account disclosure statement.


author: PER CURIAM WEIMER, J., CRICHTON, J.,

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-461218
    NO. 2017-BA-0867
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM

hit is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), .petitioner may not reapply for admission until one year has passed from the date of this judgment.

ADMISSION DENIED.

JOHNSON, C.J., would remand to the panel on character and fitness and appoint a commissioner.

Weimer, J., would remand to panel on character and fitness and appoint a commissioner.

Hughes, J., would remand to the panel on character and fitness and appoint a commissioner.

WEIMER, J.,

dissenting.

<JjI would remand to the panel on character and fitness and appoint a commissioner.

CRICHTON, J.,

additionally concurs and assigns reasons:

hi agree with the Court’s decision to deny admission, as this applicant’s historical pattern of disregarding court orders, bench' warrants, and attachments shows a complete disdain for the law. More specifically, applicant has received thirteen traffic violations, eight of which resulted in attachments and/or contempt findings issued against her-for failure to appear or address the citations. Applicant’s unacceptable conduct also demonstrates a lack of proper character and fitness to practice law in the State of Louisiana. It is our duty to uphold the high standards required of those entering our noble profession, and the applicant in this matter has not met that threshold.


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Christopher J. BELL
    No. 2016-K-1482
    Supreme Court of Louisiana.
    06/16/2017
    CRICHTON, J., additionally concurs and assigns reasons.
   CRICHTON, J.,

additionally concurs and assigns reasons:

LI agree with this Court’s decision to deny this writ application and write separately to commend the trial judge’s discretion, under the circumstances presented, to instruct the jury to continue its deliberations. On occasion, a trial judge may instruct a deadlocked jury to continue deliberating—a so-called “Allen charge.” See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (permitting a jury instruction that stated a minority of jurors could consider the views of the majority of jurors and ask themselves whether their own views were reasonable under the circumstances.). In general, Louisiana courts prohibit the use of an Allen charge, see State v. Nicholson, 315 So.2d 639, 641-43 (La. 1975), unless it is not coercive. See, e.g., State v. Lewis, 2012-0803, p. 24 (La. App. 4 Cir. 9/25/13), 125 So.3d 1252, 1266 (noting a trial judge permissibly instructed a jury “to continue to deliberate and made every effort to speak to your fellow jurors and try to come to some sort of conclusion, to the best of your abilities ....”); see also State v. Foster, 09-837, p. 10 (La. App. 5 Cir. 6/29/10), 44 So.3d 733, 740 (noting a trial judge permissibly instructed a jury because the judge did not imply it would declare a mistrial and did not tell some jurors to rethink their views in order to reach a verdict).

| ¡.Here, after deliberating for less than two hours,, the jury informed the court that they seemed unable to reach a verdict. The trial judge instructed the jury to continue deliberating:

Let me just remind you. We spent a long time, taking the time to select y’all. And we’ve spent over 72 hours going through this case together. So it’s been three days that we’ve committed to this case. It’s a very serious offense. Am [sic] I would urge you at least continue in your deliberations with the effort to reach a verdict.

Given the jury’s relatively brief deliberation in this case, in my view, the trial judge appropriately exercised her discretion and used the Allen charge in an exemplary fashion.

      . After the jury left the courtroom, the trial judge stated:
      All right. I’ll note for the record it's been less than two hours that the jury has been deliberating. And closing arguments alone were over three hours. So I’ve asked the jury to go back and continue in their deliberations. We’re in recess.


text:
    STATE of Louisiana v. Darrell Kennedy MALLETTE
    No. 2016-K-1301
    Supreme Court of Louisiana.
    06/16/2017
    CRICHTON, J., would grant and docket and assigns reasons.
   CRICHTON, J.,

would grant and docket and assigns reasons:

h Given the confusing, tortured, and. bewildering procedural history of this important case, I would grant the State’s writ application, order briefs, and docket for oral argument.


text:
    STATE of Louisiana v. David D. DOVE
    No. 2016-K-1057
    Supreme Court of Louisiana.
    06/16/2017
    JOHNSON, C.J., would grant.
    CLARK, J., would grant and docket for the reasons assigned.
    CRICHTON, J., would grant and docket and assigned reasons.
   CRICHTON, J.,

would grant, order briefing, and docket for oral argument.

|) After carefully studying the application and exhibits, I would grant defendant’s application, order briefing, and docket for oral argument. I would do so not because I believe the trial court may have erred in imposing a sentence of life imprisonment without parole eligibility after conducting a hearing in accordance with Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), but because I believe this application affords the Court with the opportunity to proactively develop an important and rapidly changing area of Eighth Amendment jurisprudence. In the 2017 regular session, after vigorous debate in both chambers, the Louisiana Legislature passed an amended version of Senate Bill 16 in an effort to carry out the United States Supreme Court’s mandates regarding juvenile sentencing in Miller v. Alabama and Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). In doing so, it appears that there may be a significant number of persons incarcerated in Louisiana who fall into a possible gap in the law. Those persons, who committed first or second degree murder as juveniles, and who áre serving sentences of life imprisonment at hard labor without parole eligibility, and ■ who have already had a Miller hearing and been -denied parole eligibility, will likely still challenge the denial of parole eligibility and the manner in which the Miller hearing was conducted as failing to | ¿fully comply with the Eighth Amendment, Miller, and Montgomery. Because of the manner in which the new (and likely to be soon effective) version of La.C.Cr.P. art. 878.1 was drafted, the questions presented in that subset of cases may not be resolved by the new legislation. Instead, the onus may remain on the judicial branch to finally tackle those thorny issues and answer those difficult questions. I believe the present case affords the Court the opportunity to' fill this potential gap in the law and offer the district courts' badly néeded guidance under the Eighth Amendment. I wish to be clear, however,1 that I find nothing in the information available to the Court at this time suggesting the district court in any way erred in imposing the harshest possible penalty on this offender. At the age of 16 years, defendant repeatedly shot the victim as he sheltered a woman’s body with -his own while her child was nearby and in harm’s way. Defendant expressed no remorse but instead appeared to already 1 be a hardened and unrepentant murderer, gang, member» and drug trafficker. The district court judge conducted the hearing admirably and, I believe, correctly denied defendant parole eligibility to this “rare juvenile offender whose: crime reflects irreparable corruption.” Miller, 132 S.Ct. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). Nonetheless, I believe the Court has erred in passing up an opportunity to develop the law and provide guidance to the lower courts. Accordingly, I would grant defendant’s application, order briefing, and docket for oral argument, with an authored opinion of this Court to follow. :


text:
    STATE EX REL. Edward MORGAN v. STATE of Louisiana
    No. 2016-KH-0471
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| ¶ Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, the courts below correctly found they are barred by La.C.Cr.P. art. 930.4. In addition, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relator's application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

| ^Attachment


text:
    STATE EX REL. Giles MCGHEE v. STATE of Louisiana
    No. 2016-KH-0529
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| ^Denied. Relator fails to demonstrate any error in the court of appeal’s ruling. Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this .per curiam.

GENOVESE, J., recused.


text:
    STATE EX REL. Timothy J. MAZIQUE v. STATE of Louisiana
    No. 2016-KH-0528
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

11 Denied. Relator fails to satisfy his post-conviction burden-of proof. La.C.Cr.P. art. 930.2. Relator also fails to show he first presented his supplemental claims to the district court. See Segura v. Frank, 93-1271 (La. 1/14/94), 630 So.2d 714, 725.

.Relator has now fully litigated his. application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the'narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Antywane Eric WILLIAMS v. STATE of Louisiana
    No. 2016-KH-1609
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

|;WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing .that level of review. La.S.Ct. R. X § 5(b).


text:
    STATE EX REL. Deandre JOHNSON v. STATE of Louisiana
    No. 2016-KH-0479
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| iDenied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: David M. MARK
    NO. 2013-B-1097
    Supreme Court of Louisiana.
    06/16/2017
   ORDER

| t Considering the Unopposed Motion for Automatic Reinstatement from Interim Suspension filed by respondent,

IT IS ORDERED THAT pursuant to Supreme Court Rule XIX, § 19(D), this court’s order of May 22, 2013 interimly suspending respondent be and hereby is dissolved.

This order shall be effective immediately-

FOR THE COURT:

/s/ Greg G. Guidry JUSTICE, SUPREME COURT OF LOUISIANA