STATE OF LOUISIANA v. CHARLES RAY THOMPSON (2023)

While I agree that defendant was denied effective assistance of counsel at sentencing and, therefore, is entitled to a new sentencing hearing, I write separately to emphasize the importance of the right at issue here.

A defendant is entitled to the effective assistance of counsel during both the guilt and sentencing phases of his criminal prosecution. This principle is firmly embedded in both the state and federal constitutions. See U.S. Const. amend. VI; La. Const. Ann. Art. I, § 13 (“At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.”) The United States Supreme Court has articulated the important role counsel plays during sentencing: “ ‘[T]he necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.’ ” McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (quoting Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967)). This Court, too, has long held that “counsel is essential for the preservation of the defendant's rights” during sentencing. State v. Austin, 255 La. 108, 114, 229 So.2d 717, 719 (1969).

Here, defendant was adjudicated a habitual offender and sentenced to life imprisonment without parole. Defendant's lawyer rendered textbook ineffective assistance by failing to object to the sentence, failing to file a motion to reconsider the sentence, and failing to inform the sentencing court of its authority to deviate below the mandatory minimum sentence when, as here, such a sentence is arguably constitutionally excessive. As a result of counsel's failures, defendant has been subjected to an arguably excessive sentence that was unreviewable on appeal. See State v. Thompson, 15-1983, p. 6 (La. App. 1 Cir. 9/16/16), 202 So.3d 998, 1002 (“The defendant [ ] is procedurally barred from having [his claim of excessive sentence] reviewed, since he failed to file a new motion to reconsider sentence after the district court resentenced him as a habitual offender.”).

As recently explained, the right to assistance of counsel would be gutted if a defendant, “whose errors by counsel result in a constitutionally excessive sentence (and one that is shielded from full review on appeal), [was left] without a remedy.” State v. Harris, 18-1012, p. 20 (La. 7/9/20), 340 So.3d 845, 860–61 (Crichton, J., concurring). As I have recognized in previous cases, a mandatory life sentence such as the one imposed here may be grossly disproportionate to a defendant's nonviolent criminal history. See e.g. State v. Kennon, 19-0998 (La. 9/1/20), 340 So.3d 881 (Crichton, J., additionally concurring); State v. Ellison, 18-0053, p. 6 (La. 10/29/18), 255 So.3d 568, 572 (writ denied) (Crichton, J., would grant); State v. Guidry, 16-1412 (La. 3/15/17), 221 So.3d 815, 831 (Crichton, J., additionally concurring); State v. Hickman, 17-0142, p. 1 (La. 9/29/17), 227 So.3d 246, 247 (writ denied) (Crichton, J., additionally concurring); State v. Hagans, 16-0103, p. 1 (La. 10/17/16), 202 So.3d 475 (writ denied) (Crichton, J., additionally concurring); State v. Ladd, 14-1611, p. 1 (La. 3/27/15), 164 So.3d 184 (Crichton, J., additionally concurring); cf. State v. Martin, 19-1087, p. 2 (La. 10/1/19), 280 So.3d 128, 128–29 (writ denied) (Crichton, J., concurring) (“the repeated crimes of extreme violence warrant the district attorney's use of the multiple offender bill and the judge's imposition of a substantial hard labor sentence.”).

If defendant were not permitted to raise a claim of ineffective assistance of counsel at sentencing, he would be “entirely without a remedy for this violation of his Sixth Amendment right to effective representation.” Harris, 18-1012, p. 20, 340 So.3d at 860 (Crichton, J., concurring). It is my view that when a defendant is denied his or her right to effective representation during sentencing, “we must adhere to the basic constitutional protections of post-conviction relief to proscribe an excessive sentencing that follows.” State v. Lowry, 22-0941, p. 1 (La. 11/1/22), 349 So.3d 13 (writ denied) (Crichton, J., would grant). Accordingly, I agree with the decision of the Court to grant defendant's writ application and remand for re-sentencing to an appropriate term of imprisonment.

Crichton, J., concurs and assigns reasons: