Smallwood v. State

O’CONNOR, Justice,

dissenting.

I dissent. Simon Smallwood, while purchasing groceries, hid $27.64 worth of meat on his person, was caught, was charged with a felony (two prior convictions were used to enhance the misdemeanor to a felony), was convicted, and was sentenced to 50 years (two prior convictions were used to enhance the sentence range). I agree with the appellant that 50 years imprisonment for stealing $27.64 worth of meat is cruel *39 and excessive, and violates the state and federal constitutions.

Under the authority of Solem v. Helm, 463 U.S. 277, 282-90 , 103 S.Ct. 3001, 3005-3010 , 77 L.Ed.2d 637 (1983), we should hold that the appellant’s sentence is cruel and unusual punishment. In Solem , the Supreme Court held that the eighth amendment prohibits punishment that is disproportionate to the crime committed. Solem, 463 U.S. at 284 , 103 S.Ct. at 3006 . It is a precept of justice that punishment for crime should be graduated and proportioned to the offense. Weems v. United States, 217 U.S. 349, 372-73 , 30 S.Ct. 544, 553 , 54 L.Ed. 793 (1910).

There is nothing graduated about a 50-year sentence for stealing $27.64 worth of meat. In Texas, 60 years is the life sentence, the maximum the State can incarcerate a person. If the State can send a person to prison for 50 years for stealing $27.64, then all other crimes, short of capital murder, must fit in the intermediate range of punishment between 50 and 60 years. Thus, the punishment for robbery, sexual assault, assault, non-capital murder, and the endless list of other crimes, all more serious than stealing $27.64, must fit within the 50 to 60 year range.

Neither is there anything proportional about a 50-year sentence for stealing $27.64 worth of meat. In Solem , the Supreme Court established an objective three-part test to a sentence under the eighth amendment: (1) compare the gravity of the offense and the harshness of the penalty; (2) compare the sentences imposed on other criminals in the same jurisdiction; and (3) compare the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 290-91 , 103 S.Ct. at 3010 .

In applying the objective tests from So-lem, I would find the appellant received almost the maximum sentence for a relatively minor crime. Solem, 463 U.S. at 303 , 103 S.Ct. at 3016 (the Supreme Court reversed the sentence of defendant, a recidivist, who was sentenced to life for uttering a passing a check for $100 without having an account at the bank). Here, the appellant, also a recidivist, was sentenced to 50 years, 10 years short of life imprisonment.

Second, I would find the appellant has been treated more harshly than other criminals in this State who have committed more serious crimes. In Solem , the Supreme Court looked to statutory punishment for other crimes in the same state and held that at the time of sentencing, the state of South Dakota was required to impose a life sentence for murder, treason, first-degree manslaughter, first degree arson, and kidnapping. Solem, 463 U.S. at 298 , 103 S.Ct. at 3014 . In comparing murder, treason, first-degree manslaughter, first degree arson, and kidnapping to passing a check without an account, the Court held only a handful of crimes, all more serious, warranted similar punishment; and, many other crimes more serious than passing a check did not warrant a life sentence. So-lem, 463 U.S. at 298-99 , 103 S.Ct. at 3014 . In Texas, crimes such as murder, aggravated kidnapping, aggravated sexual assault, and deadly assaults on certain public officials are subject to a mere minimum term of five years confinement and under certain circumstances no prison confinement at all.

Last, I would find the appellant has been treated more harshly than he would have been in any other jurisdiction. In his brief, the appellant compares similar crimes from Georgia, Alabama, Connecticut, Illinois, Iowa, Colorado, California, Arkansas, Florida, Delaware, and Indiana. No state has a scheme as harsh as Texas. Of all the states, Georgia has the harshest similar scheme: A second offender could receive a minimum of three to a maximum of 20 years, 30 years short of the appellant’s punishment.

We can also look to the United States Sentencing Commissions, Guidelines Manual (1991). Under the federal sentencing scheme, theft for $100 or less has a base level of 4. Guidelines Manual p. 47. Because no other factor that could increase the level applied for stealing meat with a value under $100 (no firearm or other destructive device was used, the theft was not from the person of another, not from the U.S. mail, did not involve more than a *40 minimal amount, did not involve a scheme to steal a vehicle, and did not jeopardize the safety of a financial institution), the appellant’s base level remains at 4.

Under Chapter Four, the appellant would collect points for his criminal history, Here is the appellant’s criminal history:

[[Image here]]

To collect the appellant’s points for his criminal history, first we would add 3 points for each prior sentence that exceeded one year and one month, for a total of 27 points; to that we add 2 points because the defendant committed this crime within two years after release from imprisonment, for a total of 29 points for his criminal history category. Guidelines Manual p. 261.

Last, we take the appellant’s base level of four and his criminal history category of 29 and refer to the sentencing table. Guidelines Manual p. 280. Cross-matching the level of the offense (4) with the criminal history points (29), we would find the sentence the federal government would impose on a similar defendant would be between 6 and 12 months.

Some would challenge the comparison of a 50-year state sentence with a 12-month federal sentence on the grounds that there is no parole in the federal system and in Texas, this appellant would be eligible for parole in twelve and one-half years. Even if we consider the possibility of parole, the sentence here is 12 times more severe than the federal scheme would permit if the appellant receives parole. But, I do not think we should consider the possibility of parole. The appellant here is liable for the entire sentence. Thus, the 50-year sentence is 50 times more severe than the federal scheme. In either case, be it 12 times or 50 times more onerous than a sentence under the federal system, the appellant’s sentence is seriously disproportional to other sentences.

The majority distinguished Solem because the issue presented in that case was whether the eighth amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony. I believe the Habitual Offender Statute, which mandates a minimum of 25 years to 99 years or a life term of imprisonment upon conviction of three felony offenses, is a statute that compares to the one in Solem , albeit less severe. I disagree with the majority that the possibility of parole makes the appellant’s sentence qualitatively different from Helm’s life sentence without parole. Even with parole, the theft of $27.64 does not warrant a 50-year sentence.

I would sustain appellant’s point of error one.