STATE of Louisiana v. Glenn THOMPKINS a/k/a Glen Thompkins

No. 2018-K-2104

Supreme Court of Louisiana.

June 17, 2019

PER CURIAM

*1253Writ granted; case remanded. Defendant received a 45-year sentence under the Habitual Offender Law for an obscenity conviction.1 While in no way downplaying the severity of his offense, we are constrained to find that the sentence violates the prohibition against excessive punishment.

To be sure, the court recognizes the offensiveness of the defendant's conduct and recognizes the state's statutory authority to pursue enhanced punishments for recidivists like defendant. Indeed, he deserved to be penalized for violating a law that serves the important purpose, in this context, of protecting a correctional officer as she performs her demanding and often very dangerous work.

However, the court also recognizes its duty to overturn sentences that, because of their disproportionate nature, inflict excessive retribution on the offender. *See generally**State v. Johnson* , 97-1906 (La. 3/4/98), 709 So.2d 672 ; *State v. Dorthey* , 623 So.2d 1276 (La. 1993), *see also* , *e.g.* , *State v. Mosby* , 14-2704 (La. 11/20/15), 180 So.3d 1274.

Even though the punishment could have been merely a monetary fine (absent the habitual offender bill), defendant effectively received a life sentence, given his age and the lengthy term imposed. In terms of proportionality, other recidivists convicted of obscenity received comparable punishments for vastly more egregious conduct.2 Though defendant's conduct was offensive, a 45-year sentence is unconstitutionally excessive. *See**State v. Bonanno* , 384 So.2d 355, 358 (La. 1980) ("To determine whether *1254the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice." (citing *State v. Beavers* , 382 So.2d 943 (La. 1980) ). We therefore reverse the appellate court's judgment, vacate the 45-year sentence, and remand to the trial court for resentencing to a punishment that is not unconstitutionally excessive.

**SENTENCE VACATED; CASE REMANDED** .

WEIMER, J., additionally concurs and assigns reasons.

GUIDRY, J., would deny and assigns reasons.

CLARK, J., would deny.

1

After a Lafourche Parish jury found defendant guilty, the trial court sentenced him to the maximum term for a first obscenity offense: three years imprisonment at hard labor. The court of appeal affirmed, rejecting defendant's argument that the sentence was excessive. *State v. Thompkins* , 17-0210 (La. App. 1 Cir. 9/21/17), 232 So.3d 40. The state thereafter filed a habitual offender bill, and the trial court adjudged defendant a fourth or subsequent offender, resentencing him as such to 45 years imprisonment at hard labor. Although defendant does not now press this issue, it is also noted that the state delayed in pursuing this habitual offender sentence. The state waited until defendant had served all but two months of his original sentence to seek a sentence enhancement. Furthermore, only after defendant had completed his entire three-year sentence did the trial court hold the habitual offender hearing, at which time defendant objected to the state's delay. While the Habitual Offender Law does not specify a time within which the state must file a multiple bill, the state must do so "within a reasonable time after the prosecution knows that a defendant has a prior felony record." *State v. Roberts* , 588 So.2d 759, 762 (La. App. 4 Cir. 1991), *writ denied* , 591 So.2d 707 (La. 1992) (citing *State v. Broussard* , 416 So.2d 109 (La. 1982) ).

2

For example, in *State v. Lewis* , 00-0053 (La. App. 4 Cir. 12/13/00), 776 So.2d 613, the defendant hid in an alleyway and exposed himself to a woman walking nearby. As she tried to pass, the defendant grabbed her, choked her, and pulled her to the ground. The victim fought and escaped. As she fled, the defendant stood watching her and masturbated, then chased her. The court of appeal found the maximum term of life imprisonment as a fourth offender was not excessive, given his conduct and criminal history.

In *State v. Waxter* , 576 So.2d 569 (La. App. 4 Cir. 1991), the defendant was masturbating at the New Orleans Moonwalk, outdoors in mid-day, and in plain view of others-including sunbathers and people waiting for the streetcar. He was sentenced as a fourth offender to the minimum term of 20 years imprisonment at hard labor, which the court of appeal found not excessive.

As described by the court below, the instant case involved no public exposure. Rather, this defendant engaged in lewd behavior in the presence of a female corrections officer. *Thompkins* , 17-0210, at 2-3, 232 So.3d at 40-41.

WEIMER, J., additionally concurring.

I believe that the defendant in this matter should serve a lengthy sentence; however, the Louisiana Constitution prohibits the imposition of an excessive sentence. *See* La. Const. Art. I, § 20 ("No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.").

GUIDRY, J., dissents and assigns reasons.

I respectfully dissent from the majority's decision to grant this writ application and remand this matter to the district court for sentencing. I would not find the defendant's sentence unconstitutionally excessive in light of the facts of the present offense and the defendant's criminal history. Thus, I would find the district court did not abuse its wide sentencing discretion.

In this case, a Lafourche Parish jury found the defendant guilty of obscenity, a violation of La. R.S. 14:106(A)(1), for masturbating in the presence of a female corrections officer as she conducted a nightly security check in the cellblock where the defendant was housed awaiting trial. The court of appeal summarized the facts as follows:

> On December 19, 2014, Officer Sheena Hill, a corrections officer at the Lafourche Parish Detention Center, was conducting her nightly security check when she came in contact with the defendant, an inmate at the facility. Officer Hill, as required of female officers, announced her presence by saying "female" or "female on the block" as she entered Block F, where the defendant was housed. Officer Hill testified that the purpose of the announcement is to alert an inmate that a female officer is approaching in order to allow them to get dressed or cover themselves to avoid exposure to the officer. The announcement was made approximately thirty feet from the third cell on the catwalk, where the defendant was located at the time (one cell over from the fourth cell where he was assigned). As she proceeded down the catwalk performing the security check, Officer Hill used a device called a guardian to scan inmate identification tags and report inmate activities. When Officer Hill approached cell three, the defendant was lying in bed two masturbating, with his penis exposed and a towel over his eyes. The defendant had a sheet hanging from the bunkbed, blocking the view of the other inmate in the cell, but allowing a full view from the catwalk. After Officer Hill addressed the defendant, he removed the towel from over his eyes, slightly held his head up to make eye contact with the officer, then put his head back down and continued masturbating. Officer Hill immediately used the guardian to document the defendant's activity as "Masturbating,"

> *1255and reported the incident to her lieutenant after completing her rounds.

*State v. Thompkins* , 18-0397, p. 1 (La. App. 1 Cir. 12/6/18), 2018 WL 6381909, pp. 2-3 (unpublished) (citing *State v. Thompkins* , 17-0210, pp. 2-3 (La. App. 1 Cir. 9/21/17), 232 So.3d 40, 40-41 ).

I do not find these facts significantly less egregious than those set forth in the cases cited by the majority. *See**Ante* , p. 1253 n. 2. Indeed, the district court before even entertaining the State's habitual offender bill of information found the defendant's conduct serious enough to warrant the maximum sentence as a first offender, that is, three years at hard labor. *See* La. R.S. 14:106(G)(1).1 Moreover, it is the defendant's criminal history that results in the enhancement of his sentence under the habitual offender law, La. R.S. 15:529.1, and not necessarily the seriousness of the most recent offense. Here, the defendant was adjudicated a fourth or subsequent felony habitual offender in accordance with La. R.S. 15:529.1(A)(4)(a) (prior to amendment by 2017 La. Acts Nos. 257, § 1 and 282, § 1).2 This adjudication was based upon the following convictions:

> **Predicate #1** : February 27, 1997 guilty plea under 32nd Judicial District Court, Docket No. 261,280, to Second Degree Battery.

> **Predicate #2** : October 30, 1998 guilty plea under 17th Judicial District Court, Docket No. 308,111, to Possession of Cocaine.

> **Predicate #3** : May 4, 1999 guilty plea under 17th Judicial District Court, Docket No. 314,377, to Possession of Cocaine.

> **Predicate #4** : March 20, 2002 guilty plea under 17th Judicial District Court, Docket No. 364,121, to Distribution of Cocaine.

> **Predicate #5** : March 15, 2011 guilty plea under 17th Judicial District Court, Docket No. 492,385, to Possession of Cocaine.

> **Predicate #6** : December 3, 2015 guilty plea under 12th Judicial District Court, Docket No. 186,342, to Battery of a Correctional Officer.

*See**State v. Thompkins* , 18-0397, p. 1 n. 1, 2018 WL 6381909, p. 2 n. 1.

The trial judge, as the court of appeal noted, found the defendant's sentence appropriate "considering the duration of his criminal history, the types of crimes that occurred with a minimum of a crime of violence and a weighted or heightened crime and a battery on a correctional officer ...." *State v. Thompkins* , 18-0397, p. 3, 2018 WL 6381909, p. 6. The trial judge further reasoned:

> *1256[B]asically in a 20 to 22-year period of time from the alleged offense date of the second degree battery in 1995 to today's date with approximately 22 years passing, there was only approximately two years during that entire time and maybe a little bit more, two years, maybe four months, during that entire period of time where [the defendant] was either not incarcerated as a result of a pending charge, or serving time on an executed sentence, or was paroled out of serving time on a sentence, or was under probation after receiving a sentence which resulted in his release and being placed on a probationary status.

*State v. Thompkins* , 18-0397, p. 3, 2018 WL 6381909, p. 7. Thus, the trial court considered the defendant's extensive criminal history when he determined the appropriate sentence, and not simply the circumstances of the defendant's most recent offense.

Under these facts, I would not find either that the trial court abused its sentencing discretion or that it imposed an unconstitutionally excessive sentence.

CLARK, J., would deny.

1

La. R.S. 14:106(G)(1) provides that "[e]xcept as provided in Paragraph (5) of this Subsection, on a first conviction, whoever commits the crime of obscenity shall be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned, with or without hard labor, for not less than six months nor more than three years, or both."

2

La. R.S. 15:529.1 (prior to amendment by 2017 La. Acts Nos. 257, § 1 and 282, § 1) provides in pertinent part:

> A. Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

> * * * *

> (4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:

> (a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life[.]