Opposition Brief — George v. Louisiana

No. 10-101%

In Che

Supreme Court of the Anited State:

On Petition For Writ Of Certi

Che Louisiana Fourth Circuit Court O

INNA RAU ANDRIJ

Counsel of Re

hief of Appeal:

DONALD G. C

Law Cler!

YRLEANS PARISH D!

ATTORNEY'S OFFI‘

19 South White Str

New Orleans, LA 7%

04) 822-2414

)

iInieuWMorte

rant Certiorari Becau

\lready Articulated

ional Standard that

rior Conviction t

Recidivist Defend:

+ .

LIOT al

Aftord

TABLE OF AUTHORITII

Slate I Westbrook, 392 So. 2d 1043 (La. 198

United States v. Booker, 543 U.S. 220 (2005)

United States v. Cotton, 535 U.S. 625 (2002)

U/nited State: /}, hr 66 F.3d 1187 (9th Ci

ZOUO1)

Ward v. Villa 17

(1972)

Wa Aiur PLO }

TATU TI

I8 U.S.C. § 924(

LA. kkV. STAT. 40:966( I )

LA. Rev. Star. 40:966(F)(2

\. REN A 10:966(F )

THER AUTHORITH

7 LA. Civ. L. TREAT Crin

8§ 3.04, 3.11 (2d ed. 201

STATEMENT OF THE CASE

Petitioner Brice M. George has pleaded guilty on

two occasions in the Criminal District Court for the

Parish of Orleans to violation of LA. Rev. Srar.

40:966(F)(1), possession of marijuana, first offense.’

On the basis of those predicate convictions, the State

charged him with a violation of LA. Rev. Star.

40:966(15)(3), possession of marijuana, third offense, a

charge to which he initially pleaded not guilty. On

May 30, 2008, the district court heard and denied

George’s motion to quash the bill of information. On

June 30, 2008, the State amended the bill to charge

George with possession of marijuana, second offense.

The same day, George withdrew his prior plea and

pleaded guilty to the amended bill, reserving his right

under State v. Crosby, 338 So. 2d 584 (La. 1976), to

appeal the district court’s denial of his motion to

quash. George waived all delays, and the district

court sentenced him to two years at hard labor,

suspended, and placed him on two years’ active

probation. The district court then granted his motion

for appeal.

Petitioner Robert Stevenson has pleaded guilty

on three occasions in the Criminal District Court for

the Parish of Orleans to violation of LA. Riv. Stat.

40:966(E)(1), possession of marijuana, first offense.”

' No. 466-941 (conviction entered 3/29/07); No. 470-511 (con-

viction entered 8/23/07).

* No. 391-755 (conviction entered 9/22/97); No. 450-190 (con-

viction entered 7/29/04), No. 476-042 (conviction entered 6/26/08).

On the basis of those predicate convictions, the State

charged him with a violation of LA. Rev. Srar.

40:966(1)(3), possession of marijuana, third offense.

On June 26, 2008, the district court heard and denied

Stevenson’s motion to quash the bill of information.

The same day, Stevenson pleaded guilty as charged,

reserving his nght under State v. Crosby, 338 So. 2d

584 (La. 1976), to appeal the district court’s denial of

his motion to quash. Stevenson waived all delays, and

the district court sentenced him to two years at hard

labor, suspended, and placed him on two years’ active

probation. The district court then granted his motion

for appeal.

Petitioner Ivory Grace has pleaded guilty on

three occasions in the Criminal District Court for the

Parish of Orleans to violation of LA. Rev. Star.

40:966(E)(1), possession of marijuana, first offense.”

On the basis of those predicate convictions, the State

charged him with a violation of LA. Rev. Svar.

40:966(E)(3), possession of marijuana, third offense,

a charge to which he initially pleaded not guilty. On

January 29, 2009, the district court heard and denied

Grace’s motion to quash the bill of information. On

March 4, 2009, Grace withdrew his pnor plea and

pleaded guilty as charged, reserving his right under

State v. Crosby, 338 So. 2d 584 (La. 1976), to appeal

the district court’s denial of his motion to quash.

No. 471-590 (conviction entered 10/11/07): No. 477-452 (con-

viction entered 6/10/08): No. 482-849 (conviction entered 3/4/09)

The district court sentenced him on March 20, 2009,

to serve one year at hard labor. The district court

then granted his motion for appeal

The petitioners appealed to the Louisiana Fourth

Circuit Court of Appeal where their appeals were

consolidated. The Louisiana Fourth Circuit affirmed.

See State v. George et al., 34 So. 3d 941 (La. App. 4th

Cir. 03/10/10). The petitioners applied for writ. of

certiorari to the Supreme Court of Louisiana.” That

application was summarily demed. See State v. George

et al., 50 So. 3d 813 (La. 11/05/10). From that denial,

the petitioners now apply to this Court for writ of

certiorar

REASONS FOR DENYING THE WRIT

The petitioners, on several occasions, pleaded

guilty to violation of LA. Rev. Star. 40:966(E)(1),

possession of marijuana, first offense ~ a petty mis

demeanor to which no right to trial by jury attaches

The petitioners each subsequently pleaded guilty to

violation of LA. Rev. STAT. 40:966(E)(3), possession of

marijuana, third offense — a felony to which the right

to trial by jury does attach. The petitioners’ central

claim is that, because their felony convictions are

predicated upon their misdemeanor convictions, their

No. 2008-KA-1193 (Brice M George): No. 2008-KA-1383

(Robert Stevenson): No. 2009-KA-O867 (Ivory Grace

No. 2010-K-08 12

felony convictions violate the Sixth Amendment's

requirement that every element of the crime charged

be proven to a jury beyond a reasonable doubt

For the reasons that follow, that claim is both proce

durally and substantively flawed

I. The Petitioners’ Cases Are Not in a Pos-

ture to Raise the Question Presented.

The petitioners assert that their “cases do not

suffer from any vehicle problems.” (Pet. at 35.) Sim-

larly, the petitioners’ amicus curiae, the National

Association of Criminal Defense Attorneys (NACDL),

asserts that “[t]hese cases are an ideal vehicle for

clarifying the boundaries of Almendarez-Torres and

Apprenat.” (NACDL Brief at 17.) Those assertions are

at odds with fact.

A plea of guilty is a conviction that effects a

waiver both of constitutional rights and any argu-

ments that may have been raised as the derogation of

those rights:

A plea of guilty is more than a confession

which admits that the accused did various

acts; it is itself a conviction; nothing remains

but to give judgment and determine pun-

ishment .... Several federal constitutional

rights are involved in a waiver that takes

place when a plea of guilty is entered in a

state criminal tral. First, is the privilege

against compulsory self-incrimination guar-

anteed by the Fifth Amendment and applica-

ble to the States by reason of the Fourteenth.

Malloy v. Hogan, 378 U.S. 1 (1964). Second,

is the right to trial by jury. Duncan v. Louis

ana, 391 U.S. 145 (1968). Third, is the mght

to confront one’s accusers. Pointer v. Texas,

380 U.S. 400 (1965).

Boykin v. Alabama, 395 U.S. 238, 242 (1969). Thus,

speculative arguments about what constitutional

protections might have been violated had the proceed-

ings continued are foreclosed by the plea that termi-

nated those proceedings.

Here, each of the petitioners pleaded guilty at

least twice to possession of maryuana, first offense

the predicates to their subsequent convictions for

possession of marijuana, third offense. The petitioners

do not claim that there were any constitutional infir

mities in those proceedings.° Whatever constitutional

Although the petitioners do not claim that there were any

constitutional infirmities in the proceedings that resulted in

their pleas as to possession of marijuana, first offense, they do

make several generic arguments about similar proceedings

As in other large municipalities, the burden of pro

cessing this large number of offenses means that the

proceedings for the non-jury eligible marijuana posses-

sion charge are cursory and the local public defender

simply cannot thoroughly investigate each case as

thoroughly as if the case carried a significant term of

imprisonment. Nor are these courts able to carefully

adjudicate each individual case. These initial charges are

literally regarded as “petty” offenses, with any number

of defendants pleading guilty simply to receive time-

served and secure a release until such time as [the]

prosecutor decides to elevate the offense based upon

the prior adjudications to a serious felony offense

(Continued on following page)

6

protections might have attached to the proceedings,

but for the petitioners’ pleas, were therefore waived.

Accordingly, the petitioners’ cases are not in a posture

to raise the question presented in their petition, and

their petition is therefore a flawed vehicle.

As Judge Pusner notes, ... judges assigned to preside

over these misdemeanor cases “hear the same stories

from defendants over and over again, leading them to

treat defendants’ testimony with skepticism; they be-

come chummy with the police and apply a lower stan-

dard of scrutiny to the testimony of officers whom

they have come to trust; and they make their decision

alone rather than as a group and so their decisions

lack the benefits of group deliberation.” Facing a skep-

tical and overburdened trial judge, under-resourced

lawyer, and no opportunity to be judged by one’s

peers, and the possibility of spending six months in

jail (versus going home with a guilty plea), many de-

fendants choose the latter.

(Pet. at 37 (quoting Welch v. United States, 604 F.3d 408, 432

(7th Cir. 2010) (Posner, J., dissenting)).) However, those argu

ments are flawed for several reasons. First, they lack citation to

any form of authority for their factual assertions. Second, the

petitioners do not claim and there is no evidence to support a

claim that they received ineffective assistance of counsel with

respect to the proceedings as to the convictions for possession of

marijuana, first offense; absent such a claim and evidence to

Support it, the petitioners’ arguments in this regard are of no

moment. Third, the petitioners do not claim and there is no

evidence to support a claim that they were at any time denied

their right to a fair and impartial judge under Ward v. Village of

Monroeville, 409 U.S. 57 (1972), or their mght to have all facts

relevant to their guilt found beyond a reasonable doubt under

In re Winship, 397 U.S. 358 (1970); absent such claims and

evidence to support them, the petitioners’ arguments in this

regard are innuendo, not argument.

Il. It Is Not Necessary for This Court to Grant

Certiorari Because This Court Has AIl-

ready Articulated a Clear Constitutional

Standard that Permits the Use of Prior

Convictions to Enhance Penalties for

Recidivist Defendants.

The petitioners advance two substantive argu

ments regarding the jurisprudence of this Court:

First, the petitioners argue that this Court has left

open the question of “whether a repeat offender

facing enhanced penalties may state a constitutional]

claim because of the absence of an opportunity for a

jury trial in a prior ... prosecution.” (Pet. at 5.

Second, the petitioners argue that the jurisprudence

of this Court favors their suggested resolution of that

question. (See, e.g., Pet. at 18, 21, 23.) Those argu

ments are without merit. First, this Court has dis

posed of the question reserved in Blanton v. N. Las

Vegas, 489 U.S. 538 (1989). Second, the position taken

by the petitioners is inconsistent with the jurispru

dence of this Court

A. This Court Has Disposed of the Ques-

tion Reserved in Blanton.

}

The petitioners claim that this Court has !

eit Ope?

the question of “whether a repeat offender facing

enhanced penalties may state a constitutional claim

because of the absence of an opportunity for a jury

trial in a prior ... prosecution.” (Pet. at 5 (quoting

Blanton, 489 U.S. at 545 n.12) Ginternal quotation

marks and alterations omitted).) In support of that

argument, the petitioners rely on the following cases

larez-Torres v. United States, 523 U.S. 224

(1998); Jones v. United States, 526 U.S. 227 (1999);

Apprendi v. New Jersey, 530 U.S. 466 (2000)

Almen«

In Blanton, this Court was confronted with the

question of “whether there is a constitutional right to

a trial by jury for persons charged under Nevada law

with driving under the influence of alcohol (DUT)

489 U.S. at 539. Holding that there is not, this Court

explained:

It has long been settled that “there is a cate

gory of petty crimes or offenses which is not

subject to the Sixth Amendment jury tmnal

provision.” Duncan v. Louisiana, 391 U.S.

145, 159 (1968): see Agee District cub caeibenaa

U | 300 U. 17, 624 (1937); Callar

v. Wilson, 127 U.S. en 557 (1888).

Blanton, 489 U.S. at 541. Declining to articulate an

absolute definition of petty crimes or offenses, this

Court noted:

Although we did not hold in Baldwin that an

offense carrying a maximum prison term of

six months or less automatically qualifies as

a “petty” offense, . .. we do find it appropriate

to presume for purposes of the Sixth Amend-

ment that society views such an offense as

“petty.” A defendant is entitled to a jury trial

in such circumstances only if he can demon-

strate that any additional statutory penalties,

viewed in conjunction with the maximum

authorized period of incarceration, are so

Y

severe that they clearly reflect a legislative

determination that the offense in question is

a “serious” one.

Id. at 543. Addressing the argument that a recidivist

enhancement might be one such “additional statutory

penalty,” this Court countered that it “ascribe{d] little

significance to the fact that a DUI offender faces in-

creased penalties for repeat offenses” because “[r]ecid-

ivist penalties of the magnitude imposed for DUI are

commonplace... .” Id. at 545.

’ In making that statement, this Court was aware of the

possible penalties to which a recidivist DUI offender would be

exposed under Nevada law:

A second DUI offense is punishable by 10 days to six

months in prison. The second-time offender also must

pay a fine ranging from $500 to $1,000, and he loses

his driver’s license for one year. A third-time DUI

offense is punishable by a minimum term of one year’s

imprisonment and a maximum term of six years’

imprisonment. The third offender also must pay from

$2,000 to $5,000, and he loses his driving privileges

for three years.

Blanton, 489 U.S. at 540 n.2 (citations omitted). Although a first

DUI offense and a second DUI offense both appear to be misde-

meanors, a third DUI offense would be a felony. See Baldwin v.

New York, 399 U.S. 66 (1970). Despite knowledge of this statu-

tory scheme, this Court still held that the Sixth Amendment did

not confer a right to trial by jury on the petitioner for his first

offense misdemeanor. In light of that holding, it is reasonable to

infer that this Court tacitly approved the use of prior misde-

meanor convictions as a constitutional predicate to subsequent

felony charges.

LO

Nine years later, in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), this Court was confronted

with the question of whether, under a federal statute,

recidivism constituted an element of a crime or a

sentencing factor.” See id. at 228-29. Concluding that

the latter interpretation was correct, this Court

rested its decision on the history of recidivism as a

sentencing factor:

The sentencing factor at issue — recidivism

is a traditional, if not the most traditional,

basis for a sentencing court’s increasing an

offender’s sentence .... Consistent with this

tradition, the Court said long ago that a

State need not allege a defendant’s prior

conviction in the indictment or information

that alleges the elements of an underlying

crime, even though the conviction was “nec-

essary to bring the case within the statute”

That conclusion followed, the Court

said, from “the distinct nature of the issue,”

and the fact that recidivism “does not relate

to the commission of the offense, but goes to

the punishment only, and therefore ... may

be subsequently decided” .... The Court has

* At that time, under the Federal Sentencing Guidelines, a

sentencing factor could be found by a judge by a preponderance

of the evidence, whereas an element of the crime would, under

In re Winship, 397 U.S. 358 (1970), have to be charged in the

indictment and proven to a jury beyond a reasonable doubt.

Since that time, this Court has held such a practice to be uncon-

stitutional — except with respect to enhancement based upon a

finding of recidivism. See United States v. Booker, 543 U.S. 220

(2005); see also Blakely v. Washington, 542 U.S. 296 (2004).

1]

not deviated from this view .... [T]lo hold

that the Constitution requires that recidi-

vism be deemed an “element” of petitioner’s

offense would mark an abrupt departure

from a longstanding tradition of treating re-

cidivism as “go[ing] to the punishment only.”

Almendarez-Torres, 523 U.S. at 230 (citations omitted).

In Jones v. United States, 526 U.S. 227 (1999),

this Court was again confronted with the practical

and constitutional distinction between “elements” and

“sentencing factors” in the context of a federal stat-

ute. Jd. at 232-33. Holding that the statute created

three discrete offenses rather than one crime and two

sentencing factors, this Court characterized its prior

holding in Almendarez-Torres as “standling] for the

proposition that not every fact expanding a penalty

range must be stated in a felony indictment, the

precise holding being that recidivism increasing the

maximum penalty need not be so charged” and noted

that the holding in that case “rested in substantial

part on the tradition of regarding recidivism as a

sentencing factor, not as an element to be set out in

the indictment.” Jd. at 248-49.

In Apprendi v. New Jersey, 530 U.S. 466 (2000),

this Court was confronted with the question of

whether a state judge could pronounce a sentence

upon a convicted defendant beyond the statutorily

prescribed maximum for the offense of his conviction

based on the judge’s finding by a preponderance of

e evidence that the crime | i been motivated

hate. Holding that such a practice was unconstitu

tional, this Court examined the recidivism exceptio1

t had created in Almendarez-Torres and express]

rporated that ex: eption into if holdin

um Oul reexamination [ OUl

n this area, and of the history upon whi

ey rely. confirms the opinion that we -«

pressed in Jones. Other than the fact of a p?

r conviction, any fact that increases th

nalty for a crime bevond the prescribe

tatutory maximum must be submitted to

jury, and proved beyond a reasonable doubt

With that exception, we endorse the Late

ment of the rule set forth in the concurrin

pinion in [Jones]: “I]t 1 unconstitu

tional for a legislature to remove from the ji

the assessment of facts that increase tl

prescribed range of penalties to which

riminal defendant is exposed. It 1s equal!

lear that uch fact must be establishes

\t that T lew Cy

rovideld! for an ‘extended term’ of imprisonment if the tri

judge |found], by a preponderance of the evidence, that {t]he

defendant in committing the crime acted with a purpose ts

intimidate an individual or group of individuals becau

e ol ract

olor, gender, handicap, religion, sexual onentation or ethn

;

\ 4 Apprendi 530 LJ : at 4658-69 tit

14 @} W - DD }OOY 7Tarvay

13

526 U.S. at 252-53 (Stevens, J.

see also id. at 253 (Scalia, J., concurring). |

concurring);

>

Apprendi, 530 U.S. at 490 (emphasis added). That

holding has been cited with approval by this Court in

numerous subsequent cases, and there can be no

reason to doubt that it is now a matter of settled law.

See Washington v. Recuenco, 548 U.S. 212, 216 (2006);

United States v. Booker, 543 U.S. 220, 231 (2005);

Blakely v. Washington, 542 U.S. 296, 301 (2004);

Schriro v. Summerlin, 542 U.S. 348, 250 (2004);

Harris v. United States, 536 U.S. 545, 563 (2002):

United States v. Cotton, 5385 U.S. 625, 627 (2002).

Accordingly, the petitioners’ claim that this Court has

>

left open the question of whether a repeat offender

facing enhanced penalties may state a constitutional

claim because of the absence of an opportunity for a

jury trial in a prior prosecution is without merit.

B. The Petitioners’ Arguments Are the

Result of Their Misunderstanding of

the Jurisprudence of This Court.

The petitioners assert, citing this Court’s decision

in Jones, that “every fact increasing the maximum

penalty must be treated like an element of the offense:

that is, the fact must be alleged in the indictment,

and proven to a jury beyond a reasonable doubt.”

(Pet. at 12.) That statement is incomplete. What this

Court stated in a footnote to its decision in Jones was

that “under the Due Process Clause of the Fifth

Amendment and the notice and jury trial guarantees

of the Sixth Amendment, any fact (other than prior

Ve

’ 7 {>

| ryy |

pha l iaaed inat tootnote Se

predicate to tn (Ol | r

j

' -_ sf

'}

| ret t {

i a i A GDP I

Cy rely niirn ne ODIN

} r |

kpressed 1 JOT Other tha

.

’ > * ’ 4 ~ . >

a Dpriol onviction. itiy a { that

a

penalty for a crime beyond the

I LI I |

ij

wie rCd iT ité

y

ewrnadarez-! .

scribing that holding 1 tI te {

j 7 4 4

ision in Almendarez-for? stood for the prop

ry fact expanding a penalty range must be st

ictment,. the precise holding being that recidi

1a

shyt

PL?

mele’

.

1

QQ

.

* ae

‘

el

theirs. In support of that argument, the petitione

cite the following passage from Jorve:

One basis for that possible constitutional di

tinctiveness |between prior adult felony con

victions and other facts] is not hard to see

unlike virtually any other consideration used

to enlarge the possible penalty for an offense,

and certainly unlike the factor before us in

this case, a prior conviction must itself hav

been established through procedures satis

fying the fair notice, reasonable doubt, and

jury trial guarantees. Almendarez-Torres

cannot, then, be read to resolve the due

process and Sixth Amendment question

implicated ...as the Government urges

(Pet. at 18-19 (quoting Jones, 526 U.S. at 249).) How

ever, the petitioners’ alterations to that passage distort

its meaning. Unaltered, the passage reads as follow:

One basis for that possible constitutional dis

tincliveness is not hard to see: unlike virtu

ally any other consideration used to enlarge

the possible penalty for an offense, and cer

tainly unlike the factor before us in this case, a

prior conviction must itself have been estab

lished through procedures satisfying the fair

notice, reasonable doubt, and jury trial guaran

lees. Almendarez-Torres cannot, then, be read

to resolve the due process and Sixth Amend

ment questions implicated by reading the

carjacking statute as the Government urges.

Jones, 526 U.S. at 249. Comparison of these two ver

sions lays bare three flaws tn the petitioners’ argument

: ’ . , ™

‘ ‘ ?

a .

‘ ’

wae Oy

ae | :

} }

Crio ‘ . ‘

ay ¥ ¢ f

é

y .

nA

{7

,

Tc) | r iS , \y 4

‘ i ‘ iA LILI

| srt 7 A ry |

LS

for petty offenses such as misdemeanors, Blanton v.

N. Las Vegas, 489 U.S. 538, 543 (1989), even though a

conviction issuing from such proceedings may become

the predicate for a subsequent felony conviction. /d.

at 544 (“We ascribe little significance to the fact that

a DUI offender faces increased penalties for repeat

offenses.”). Thus, the petitioners’ argument flows from

a misunderstanding of the jury trial guarantee.

Third, this Court noted that procedural safe-

guards were but one possible basis upon which to

justify the distinction between recidivism and other

factors bearing upon sentencing. Jones, 526 U.S. at

249. The petitioners, however, mistake this sufficient

condition for a necessary one. Had this Court believed

that there could be no other basis to justify the dis-

tinction, it could simply have omitted the phrase “one

possible basis.” Instead, this Court chose to include

the phrase, and its use should not be construed as

mere surplusage. Moreover, it is the peculiar burden

of a petitioner to identify the constitutional basis for

his claim, yet the petitioners have failed to explore

let alone call into question — other potential bases

for the distinction this Court has unquestionably

espoused.

The petitioners next assert that this Court held

in Apprendi v. New Jersey, 530 U.S. 466 (2000), that

“In any criminal prosecution where the Sixth

Amendment nght to tnal by jury applies, any fact

that the state seeks to use to increase the maximum

penalty must be subject to the jury trial right and

proven beyond a reasonable doubt.” (Pet. at 19.) That

statement is incomplete. As this Court articulated its

holding in Apprenaz:

Other than the fact of a prior conviction, any

fact that increases the penalty for a crime

beyond the prescribed statutory maximum

must be submitted to a jury, and proved be-

yond a reasonable doubt.

530 U.S. at 490 (emphasis added).

Attempting to rationalize their omission of that

incipit, the petitioners quote the following passage

from Apprendi:

Rejecting Almendarez-Torres’ objection, we

concluded that sentencing him to a term

higher than that attached to the offense al-

leged in the indictment did not violate the

strictures of Winship in that case. Because

Almendarez-Torres had admitted the three

earlier convictions for aggravated felonies -

all of which had been entered pursuant to

proceedings with substantial procedural

safeguards of their own — no question con

cerning the right to a jury trial or the stan-

dard of proof that would apply to a contested

issue of fact was before the Court.

y

(Pet. at 20-21 (quoting Apprendi, 530 U.S. at 488).)

Although this Court italicized the word “admitted” in

the above passage, the petitioners did not reproduce

that textual emphasis in their brief, the effect of which

is to distort the significance of the passage as a whole.

The focus of the above passage was, as here it ought

also to be, on the fact that the defendant’s guilty

20

plea cured any procedural deficiencies that may

have theoretically existed as to his prior convictions.

As noted supra at Part I, the petitioners pleaded

guilty in all of the proceedings that established the

predicates supporting their current convictions. More-

over, although they reserved the right to appeal as to

the narrow constitutional issue they claim to present,

the petitioners also pleaded guilty to their current

convictions. In light of the foregoing language from

Apprendt, it is illogical to assert that some question

concerning the petitioners’ right to a jury trial exists,

because, like the petitioner in Almendarez-Torres,

they have admitted their earlier convictions as well

as their present ones — all of which were entered

pursuant to proceedings with substantial procedural

safeguards of their own.

To summarize, the petitioners’ arguments are the

result of their misunderstanding of the jurisprudence

of this Court: they have distorted through alteration

and taken out of context the statements of this Court;

they have incompletely stated the law; they have

misunderstood the nature of the Sixth Amendment’s

jury trial guarantee; and they have mistaken a suffi-

client condition for a necessary one. Through these

misunderstandings, they have failed to raise an issue

meriting the review of this Court, and their petition

should therefore be denied.

21

Iil. It Is Not Necessary for This Court to

Grant Certiorari Because There Is No

Circuit Split Meriting the Review of This

Court.

In an attempt to attract the attention of this

Court, the petitioners have invoked the claim that

“(tlhe federal appellate courts and state supreme

courts are intractably split....” (Pet. at 23.)"* That

claim is inaccurate. The Ninth Circuit, in its decision

in United States v. Tighe, 266 F.3d 1187 (9th Cir.

2001), stands alone in espousing the view of this

Court’s jurisprudence advocated by the petitioners,

and that decision does not purport to address the

narrow question presented here.

In Tighe, the Ninth Circuit held that convictions

issuing from juvenile criminal proceedings may not,

* At first blush, this statement appears to suggest that

there is division among both the federal courts of appeals and

the state supreme courts. Further scrutiny of the petition

reveals that such a suggestion was likely not what the petition-

ers intended. The petitioners have identified numerous state

supreme courts that have interpreted the exception to the rule of

Apprendi to embrace prior adult misdemeanor convictions. See

(Pet. at 27 (citing People v. Nguyen, 209 P.3d 946 (Cal. 2009);

State v. Weber, 149 P.3d 646 (Wash. 2006); People v. Huber, 139

P.3d 628 (Colo. 2006); State v. McFee, 721 N.W.2d 607 (Minn.

2006); Ryle v. State, 842 N.E.2d 320 (Ind. 2005); State v. Hitt, 42

P.3d 732 (Kan. 2002)).) In contrast, the petitioners have identi-

fied no state court to have held to the contrary. Accordingly, the

State interprets this statement by the petitioners to refer to the

split between the Ninth Circuit and all other federal and state

appellate courts to have addressed the question presented here.

bd aod

under this Court’s holding in Apprendi, be used

as “previous convictions” under the Armed Career

Criminals Act, 18 U.S.C. § 924(e). 266 F.3d at 1194-

95. In reaching that holding, the Ninth Circuit noted

that there are “significant constitutional differences

between adult convictions and juvenile adjudica-

tions.” Jd. at 1192-93. The differences between adult

convictions and juvenile adjudications are a result

of the differing systems that produce them and

the differing goals served by those systems. This

“court articulated those differences in its decision

in McKeiver v. Pennsylvania, 403 U.S. 528 (1971):

[T]he juvenile court proceeding has not yet

been held to be a “criminal prosecution,”

within the meaning and reach of the Sixth

Amendment, and also has not yet been re-

garded as devoid of criminal aspects merely

because it usually has been given the civil

label.

Id. at 547. At issue in McKeiver was whether the

Constitution entitles juveniles to trial by jury in

In distinguishing between adult convictions and juvenile

adjudications, the Ninth Circuit considered significant the fact

that, under this Court’s decision in McKeiver v. Pennsylvania,

403 U.S. 528 (1971), there is no constitutional right to trial by

jury in a juvenile proceeding. However, in arriving at its decision

in McKeiver, this Court focused not on the Sixth Amendment’s

jury trial guarantee, but on striking a balance between Due

Process and the jury’s impact on “the juvenile court’s assumed

ability to function in a unique manner.”

23

juvenile proceedings. Concluding that it does not, this

Court stated:

The imposition of the jury trial on the juve-

nile court system would not strengthen

greatly, if at all, the fact-finding function,

and would, contrarily, provide an attrition of

the juvenile court’s assumed ability to func-

tion in a unique manner. It would not reme-

dy the defects of the system. Meager as has

been the hoped-for advance in the juvenile

field, the alternative would be regressive,

would lose what has been gained, and would

tend once again to place the juvenile squarely

in the routine of the criminal process.

Concern about the inapplicability of exclu-

sionary and other rules of evidence, about

the juvenile court judge’s possible awareness

of the juvenile’s prier record and of the con-

tents of the social file; about repeated ap-

pearances of the same familiar witnesses in

the persons of juvenile and probation officers

and social workers — all to the effect that this

will create the likelihood of pre-judgment —

chooses to ignore it seems to us, every aspect

of fairness, of concern, of sympathy, and of

paternal attention that the juvenile court

system contemplates.

If the formalities of the criminal adjudicative

process are to be superimposed upon the

juvenile court system, there is little need

for its separate existence. Perhaps that ulti-

mate disillusionment will come one day, but

24

as

for the moment we are disinclined to give

impetus to it.

Id. at 547-51.

That the juvenile and criminal courts maintain a

separate existence reflects the differing goals they

pursue. Those goals are, in turn, a reflection of fun-

damental differences between adults and juveniles. A

recent decision by this Court, Graham v. Florida, 130

S. Ct. 2011 (2010), highlights the extent of those

differences. In Graham, this Court was confronted

with the question of whether the Eighth Amend-

ment’s prohibition of cruel and unusual punishments

permitted a juvenile offender, tried as an adult in the

criminal court system, to be sentenced to life in

prison without parole for a nonhomicide crime. Jd. at

2017-18. In holding that the Eighth Amendment did

prohibit such a sentence, this Court rested its deci-

sion on the differences between juvenile and adult

offenders:

[Blecause juveniles have lessened culpability

they are less deserving of the most severe

punishments. [Roper v. Simmons, 543 U.S.

051, 569 (2005).] As compared to adults,

juveniles have a “‘lack of maturity and an

underdeveloped sense of responsibility’”;

b

they “are more vulnerable or susceptible to

negative influences and outside pressures,

including peer pressure”; and their charac-

ters are “not as well formed.” /d. at 569-570.

These salient characteristics mean that “[iJt

is difficult even for expert psychologists to

differentiate between the juvenile offender

29

whose crime reflects unfortunate yet tran-

sient immaturity, and the rare juvenile of-

fender whose crime reflects irreparable

corruption.” /d. at 573. Accordingly, “juvenile

offenders cannot with reliability be classified

among the worst offenders.” Jd. at 569. A

juvenile is not absolved of responsibility for

his actions, but his transgression “is not as

morally reprehensible as that of an adult.”

[Thompson v. Oklahoma, 487 U.S. 815, 835

(1988) (plurality opinion)].

Graham, 1308S. Ct. at 2026.

Although the Ninth Circuit distinguished adult

convictions from juvenile adjudications on the basis of

this Court’s holdings regarding the availability of a

jury as to the former but not the latter, that dis-

tinction is but one manifestation of the fundamental

differences between adults and juveniles and the

courts that adjudicate them. Because the juvenile and

criminal courts pursue different goals — goals rooted

in the differences between the individuals they adju-

dicate — it is appropriate to distinguish between the

adjudications of those courts. Accordingly, the Ninth

Circuit’s decision in Tighe should be limited to juve-

nile adjudications. That decision so limited, there

exists no split meriting the review of this Court.

26

IV. It Is Not Necessary for This Court to Grant

Certiorari Because the Law of Louisiana

Affords Greater Protection to Criminal De-

fendants than the Jurisprudence of This

Court Requires.

As discussed supra at Part II, under this Court’s

decision in Apprendi, the fact of a prior conviction,

unlike other facts bearing upon sentencing, need not

be presented to a jury and need not be proven beyond

a reasonable doubt. Notwithstanding the fact that

that rule declares constitutional the practice of per-

mitting a judge to find by a preponderance of the

evidence the fact of a defendant’s prior convictions,

Louisiana has chosen to deprive judges of such au-

thority and confer it instead upon juries.

Both LA. REv. Stat. 40:966(E)(2), possession of

marijuana, second offense, and LA. REv. STAT.

40:966(E)(3), possession of marijuana, third offense,

make the predicate offense(s) upon which they are

based an element of the crime charged. Both are

felonies to which the Sixth Amendment right to trial

by jury attaches. See Baldwin v. New York, 399 U.S.

66 (1970). Accordingly, in prosecutions for possession

of marijuana, both second offense and third offense,

the fact of a defendant’s prior conviction(s) for posses-

sion of marijuana is submitted to a jury and must be

proven beyond a reasonable doubt.

In Orleans Parish, where the petitioners were

convicted, the evidence usually offered by the State

to prove the fact of a defendant’s prior conviction

At

consists of the following: a certified copy of the arrest

register as to the defendant’s prior conviction (bear

ing the defendant’s fingerprints); a certified copy of

court records as to the defendant’s prior conviction

(also bearing the defendant’s fingerprints); a certified

copy of the arrest register as to the crime presently

charged (also bearing the defendant’s fingerprints);

and the testimony of a fingerprint expert to establish

that all sets of fingerprints match.” However, even

when such evidence is offered, a jury is free to dis

believe — or even disregard — that evidence and may

instead find the defendant guilty of a lesser charge

(generally, possession of marijuana, first offense) or

not guilty. See 17 LA. Civ. L. TREATISE, Criminal Jury

Instructions §§ 3.04, 3.11 (2d ed. 2011).

Moreover, because under Louisiana law a de

fendant’s prior conviction for possession of marijuana

is an element of the crimes of possession of marijua

na, second offense and third offense, a defendant is

>

permitted to challenge not only the fact but also the

validity of his prior conviction by offering evidence

l

* Although this is the usual manner of proving prior con

victions, others have been approved by the courts of Louisiana

See, e.g., State v. Lee, 364 So. 2d 1024, 1082 (La. 1980) (testi

mony by the defendants previous attorney and parole officer);

State v. Hlardy, 141 So. 27 (La. 1932) (comparison of photograph

to defendant’s appearance); State v. Westbrook, 392 So. 2d 1043

(La. 1980) (defendant’s identity established through comparison

of name, sex, date of birth, and driver’s license number); State ¢

Valentine, 397 So. 2d 1299 (La. 1981) Gudicial notice that the

defendant had previously been convicted in that judge’s court)

that that conviction was obtained in error. The upshot

of these procedural safeguards is that, whenever a

defendant is charged with possession of mariyuana,

second offense or third offense, he is granted a de

facto jury trial as to any prior offense. Thus, even if

the petitioners’ interpretation of this Court’s juris-

prudence were correct, the law of Louisiana would

still accord all requisite procedural protections.

Therefore, the petition should be denied.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

LEON A. CANNIZZ,ARO, JR.

Orleans Parish District Attorney

DONNA RAU ANDRIEU

Counsel of Record

Chief of Appeals

DONALD G. CASSELS, IT

Law Clerk

ORLEANS PARISH DISTRI

ATTORNEY’S OFFICE

619 South White Street

New Orleans, LA 70119

(504) 822-2414

dandrieu@orleansda.com

Counsel for Responden l