After unsuccessfully moving to suppress evidence, defendant entered conditional guilty plea to manufacturing marijuana and appealed. Following remand, 37 F.3d 526, the United States District Court for the District of Oregon, Helen J. Frye, J., again denied suppression motion, and defendant appealed. The Ninth Circuit Court of Appeals, 190 F.3d 1041, affirmed. Certiorari was granted. The United States Supreme Court, Justice Scalia, held that: (1) use of sense-enhancing technology to gather any information regarding interior of home that could not otherwise have been obtained without physical intrusion into constitutionally protected area constitutes a "search," and (2) use of thermal imaging to measure heat emanating from home was search.

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth--a location not within the catalog ("persons, houses, papers, and effects") that

the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353, 88 S.Ct. 507.

As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361, 88 S.Ct. 507. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur--even when the explicitly protected location of a house is concerned--unless "the individual manifested a subjective expectation of privacy *2043

in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211, 106 S.Ct. 1809. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U.S. 735, 743-744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).

The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United States 26. The dissent makes this its leading point, see post, at 2047, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house-and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house.

We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology--including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development. [FN3] The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible.

The most sophisticated thermal imaging devices continue to measure heat "off-the-wall" rather than "through- the-wall"; the dissent's disapproval of those more sophisticated thermal- imaging devices, see post, at 2052, is an acknowledgment that there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an inference" cannot be a search, see post, at 2048-2049, that would validate even the "through-the-wall" technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), where the police "inferred" from the activation of a beeper that a certain can of ether was in the home. The police activity was held to be a search, and the search was held unlawful. [FN4]

We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton, 445 U.S., at 590, 100 S.Ct. 1371. That line, we think, must be not only firm but also bright--which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause--and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.

Justice Stevens filed a dissenting opinion, in which Chief Justice Rehnquist and Justices O'Connor and Kennedy joined.

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Defendant charged with possession of methamphetamine with intent to deliver, attempt to manufacture methamphetamine, possession of drug paraphernalia, unlawful possession of weapon, and speeding moved to suppress evidence found in his vehicle. The Circuit Court, Faulkner County, Charles Edward Clawson, J., granted motion, and state appealed. The Arkansas Supreme Court, affirmed, 340 Ark. 315, 11 S.W.3d 526, and denied petition for rehearing, 16 S.W.3d 551. On grant of petition for writ of certiorari, the United States Supreme Court held that: (1) any improper subjective motivation of police officer for stopping defendant's vehicle did not render arrest violative of Fourth Amendment, and (2) Arkansas Supreme Court could not inquire into arresting officer's subjective motivation on theory that it could interpret United States Constitution more broadly than United States Supreme Court.

Because the Arkansas Supreme Court's decision on rehearing is flatly contrary to this Court's controlling precedent, we grant the State's petition for a writ of certiorari and reverse. [FN*] As an initial matter, we note that the Arkansas Supreme Court never questioned Officer Taylor's authority to arrest Sullivan for a fine-only traffic violation (speeding), and rightly so. See Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Rather, the court affirmed the trial judge's suppression of the drug-related evidence on the theory that Officer Taylor's arrest of Sullivan, although supported by probable cause, nonetheless violated the Fourth Amendment because Taylor had an improper subjective motivation for making the stop. The Arkansas Supreme Court's holding to that effect cannot be squared with our decision in Whren, in which we noted our "unwilling[ness] to entertain Fourth Amendment challenges based on the actual motivations of individual officers," and held unanimously that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 517 U.S., at 813, 116 S.Ct. 1769. That Whren involved a traffic stop, rather than a custodial arrest, is of no particular moment; indeed, Whren itself relied on United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), for the proposition that "a traffic-violation arrest ... [will] not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search.' " 517 U.S., at 812-813, 116 S.Ct. 1769.

The Arkansas Supreme Court's alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court's own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). There, we observed that the Oregon Supreme Court's statement that it could " 'interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court' " was "not the law and surely must be inadvertent error." Id., at 719, n. 4, 95 S.Ct. 1215. We reiterated in Hass that while "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards," it "may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." Id., at 719, 95 S.Ct. 1215.

The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Reversed and remanded.

Justice Ginsburg concurred and filed opinion in which Justices Stevens, O'Connor, and Breyer joined.

JURY SELECTION MARATHON IS REVERSIBLE ERROR

In this assignment of error, defendant claims he was denied his right to a fair trial by the trial court's holding court until at least 3:00 a.m. on the first day of trial. Selecting a jury is of extreme importance and is thus the first stage of a jury trial. In a capital murder trial, voir dire has Federal and State constitutional standards that guarantee that "a trial is unfair if the accused is denied counsel at a critical stage of his trial." United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

The purpose of voir dire, from a judicial perspective, is to select an unbiased panel in the shortest time possible. To the lawyers and the litigants, voir dire is the most important aspect of the trial for various reasons. Thus, voir dire must be afforded such time and attention that something this significant deserves.

A criminal defendant is entitled to have legal counsel that is conscientious, responsive and cognizant, and, in the context of this case, awake and conscious. Lawyers, during voir dire, must be able and alert in order to extensively question jurors for a reasonable period of time to obtain enough information to make a thoroughly informed judgment. An exhausted and prostrate trial lawyer, especially in a capital murder case, cannot provide effective counsel to his/her client. Without sufficient energy and zeal the trial lawyer cannot ferret out a prospective juror who conceals extremely strong biases and thereby properly exercise a challenge.

Prospective jurors, likewise, cannot be driven to exhaustion. . . . . . . Sleepy and angry jurors will evade and avoid questions in order to end the selection process. Thus, depriving a defendant of critical information about a juror because of exhaustion, fatigue and excessive time span creates a presumption that the defendant was prejudiced by this deficiency. (See Burdine v. Johnson, 262 F.3d 336, 2001 WL 914267 (5th Cir.(Tex.) 2001) for a discussion of presumption of prejudice in capital murder cases.)

The record reflects that on the first day of trial, November 15, during voir dire, the court interviewed each prospective juror in chambers with regard to the Witherspoon, or death penalty issue. After the conclusion of the Witherspoon voir dire, counsel for both defendant and Antoine Thompson objected to beginning the general voir dire. Counsel for Antoine Thompson represented that it was then 10:00 p.m., and said "we've" been here for over twelve hours.

Counsel speculated that the jurors had been in the court building as early as 8:00 a.m., and opined that he did not think a lot of them could digest new information until 12:30 a.m. Counsel then stated that in all fairness to his client he did not believe it was right to keep the jurors until 12:00 or 1:00 a.m. Counsel for Lonnie Allen noted that he had a headache, and stressed that it was a capital case and that his client had a right to have competent counsel representing him. He argued that he had to be able to make intelligent decisions to effectively represent his client, and that proceeding until 1:00 a.m. would deprive his client of effective assistance of counsel.

The trial court allowed a thirty-minute break, but said that it was going to finish the voir dire that night.

At the outset of the first of four rounds of the general voir dire, the prosecutor requested the undivided attention of the prospective jurors, noting that he understood that it was very late, and that they had started in the morning "very, very early." During the first round of voir dire, counsel for defendant, who addressed the jury last in that round, said "good morning" to the panel of prospective jurors, and said, "Anybody have some problems concentrating, focusing right now? Staying awake? Anybody want to leave and go home right now?" Counsel for defendant then requested that the record reflect that all of the jurors had raised their hands. Following the close of the first round, with the selection of four jurors, counsel for Antoine Thompson noted for the record that he had seen prospective jurors in the audience fast asleep, and could hear some of them saying they could not keep their eyes open. Mr. Smith, counsel for Thompson, conceded that he had not seen any jurors sleeping in the jury box, but wanted the court to note his objection for the record.

At approximately 1:05 a.m., during the second round of voir dire, counsel for defendant addressed the prospective jurors, noting that each and every one of them at that point was "completely wrecked.. . . .. Later during the second round, counsel for defendant asked a prospective juror in a panel being questioned whether he had been shaking his head [in response to a question] or just trying to stay awake. The juror responded, "I think I was just trying to stay awake. I don't remember."

During the third round of voir dire, counsel for defendant asked if any of the prospective jurors would have a problem going until 2:00 or 3:00 a.m. during the trial, and one juror responded, "Yeah, I have a problem with it." Another juror said, "Absolutely. You're going to lose [sic] attention span very easily." The trial court interjected that counsel did not know what time they would quit each night.

The record reflects that voir dire was not concluded until at least 3:00 a.m. on the morning of November 16.

On November 17, prior to commencement of the third day of trial, counsel for Antoine Thompson noted that he had overheard at least one female juror say the previous day that she had not gotten one minute of sleep on the night of November 15-16. Counsel moved for a mistrial on the grounds that it was error to have kept the jury until 3:00 a.m. The trial court disagreed that the juror made that statement, and denied the motion for mistrial.

A defendant is guaranteed an impartial jury and a fair trial. La. Const. art. I, § 16. To this end, La. Const. art. I, § 17 guarantees that "[t]he accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." See also La.C.Cr.P. art. 786 ("the defendant shall have the right to examine prospective jurors"). The purpose of voir dire is to determine qualifications of prospective jurors by testing their competency and impartiality in order to discover bases for challenges for cause and for the intelligent exercise of peremptory challenges. State v. Taylor, 93-2201, p. 23 (La.2/28/96), 669 So.2d 364, 377, citing State v. Hall, 616 So.2d 664, 668 (La.1993); State v. Searles, 94-0190, p. 3 (La.App. 4 Cir. 12/15/94), 647 So.2d 1329, 1331. A trial court has great discretion as to the conduct of voir dire, and its rulings related thereto should not be disturbed absent a clear abuse of discretion. State v. Robertson, 97-0177, pp. 10-11 (La.3/4/98), 712 So.2d 8, 20.*9)

In the instant case, it can be assumed that the jurors reported for duty no later than 8:30 a.m. The individual jurors underwent voir dire as to their ability to render a sentence of death, the Witherspoon issue, until 10:00 p.m. At that point, they had been fulfilling their civic responsibilities as jurors for thirteen hours. Voir dire did not conclude until, at the earliest, five hours later, at approximately 3:00 a.m. Thus, the jurors endured an eighteen- hour day. Jurors were noted sleeping in the audience. At some point between midnight and 1:00 a.m. all of the jurors indicated by a show of hands that they were having problems concentrating, focusing, and staying awake. When asked if they could go until this late hour during the trial, several jurors indicated they would have problems.

. . . . . . When defense counsel for both defendants requested that voir dire be continued until the next morning at 10:00 a.m., after the jury had been present in the courthouse for thirteen hours, no juror had been sworn, or even selected. The only issue that had been voir dired was the Witherspoon issue. The general voir dire had not yet begun at that time. There was no justification for beginning the general voir dire at 10:00 p.m. in this death penalty prosecution. . . .. . . . . In the instant case there was no justifiable reason why the trial court could not have concluded the day's proceedings at 10:00 p.m., at the end of the Witherspoon voir dire, and resumed the general voir dire the next morning.

Under the facts and circumstances of the instant case, the trial court clearly abused its discretion in conducting voir dire until 3:00 a.m. It is impossible to assess the full extent to which defendant's right to a fair and effective voir dire was compromised by the exhausting day endured by the prospective jurors and counsel. In objecting to proceeding into the early morning hours of November 16, counsel for defendant specifically voiced concern about his ability to make intelligent decisions at that late hour. The importance of the constitutionally guaranteed right to voir dire cannot be overemphasized. We hold that the trial court abused its discretion in conducting the voir dire beyond a reasonable time limit, thus exhausting defendant's counsel, in a critical phase of the defendant's capital murder trial which warrants a presumption of prejudice and entitles the defendant to a reversal of the verdict and a new trial.State v. Allen Excerpt from: 2001 WL 1346075, *6 (La.App. 4 Cir.) to 2001 WL 1346075, *9 (La.App. 4 Cir.)

The defendants have also raised a claim relating to the systematic exclusion of African American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The Batson holding is codified in our law as La.C.Cr.P. art. 795(C), which provides:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

To make a Batson claim against the state, the defendants must first establish a prima facie case that the state exercised its peremptory challenges to exclude members of the jury venire solely on the basis of their cognizable race. Batson, supra; State v. Green, 94-0887 (La.05/22/95), 655 So.2d 272. The state need not give an explanation for its use of a peremptory challenge if the trial court does not find that the defense has made ,a prima facie case, but many trial courts require this to create a complete record.

Once defendants establish a prima facie case, the burden then shifts to the state to come forward with a race-neutral explanation. This second step of the process does not demand an explanation from the state that is persuasive, or even plausible. The reason offered by the state will be deemed race-neutral unless a discriminatory intent is inherent within that explanation. The persuasiveness of the state's explanation only becomes relevant at the third and final step which is when the trial court must decide whether defendants have proven purposeful discrimination.

In this case, after the state exercised its first nine peremptory challenges against potential African-American jurors, the defendants urged a Batson challenge. Each of the defendants is of African-American descent. At that time, the court deferred ruling on the objection until after completion of jury selection. Ultimately, the court denied the defendants' Batson challenge finding that "there [are] adequate race neutral grounds" for the state's exercise of eighteen peremptory challenges against African Americans. The final jury was comprised of eight Caucasians and four African-Americans.

. . . . . Clearly, with the record showing that 90 percent of the state's challenges were exercised against African-Americans, we concur in this conclusion. Of course, there is no requirement that the state provide race-neutral reasons for the challenge if those reasons are apparent from the voir dire examination. La.C.Cr.P. art. 795(C). We agree with the trial court's determination that this is such a case.

Of the eighteen peremptory challenges exercised by the state against African-Americans, twelve of those were utilized against those potential jurors who either knew or had some relation to the three defendants or were acquainted with their families. The knowledge of the parties is a sufficient race-neutral reason for the peremptory challenge of a prospective juror.

Three of the potential jurors were excused due to either their own or their children's criminal records. A juror's connection with prior criminal trials is a race-neutral explanation for the removal of a juror, as is a juror who has a family member who has a criminal record.

The final three jurors were challenged for various reasons.

Based upon the record before us, as well as supporting jurisprudence, we conclude that race-neutral reasons existed for the peremptory challenges exercised by the state against these jurors. We therefore find no merit to defendants' claims.

JAILHOUSE STATEMENT: HEARSAY ACCOUNT OF WHAT INMATE TOLD POLICE THE DEFENDANT TOLD HIM NOT ADMISSIBLE

Officer McCullan Gallien of the Lafayette Police Department, the investigating officer in this case, testified that he met with Ronald Broussard, an inmate who shared a pod with the defendant. In Ronald Broussard's taped statement, he told Officer Gallien that the defendant told him that he had raped someone. Ronald Broussard stated that the defendant described the incident to him--that he had gone to his home with a woman after drinking where he tried to have intercourse with her. The defendant allegedly told Ronald Broussard that when she resisted, he held her down by putting his arm across her throat and forced her to have sexual intercourse.

Officer Gallien testified that he did not believe that Ronald Broussard's statement was given for any purpose other than to let it be known what happened. Also, Ronald Broussard informed Officer Gallien that the reason he reported the defendant's story was because he felt the defendant's actions were wrong and explained that his girlfriend had been a rape victim.

During the testimony of Officer Gallien, the state introduced the statement of Ronald Broussard into evidence.

The defendant objected and argued that the statement did not fall within the exceptions to the hearsay rule. The state argued that the statement was admissible under La.Code Evid. art. 804, which allows certain hearsay statements to be admitted when the declarant is unavailable. The court ruled that the transcription of Ronald Broussard's statement was admissible, but not the officer's report of the interview. The defendant objected, arguing he was not being afforded an opportunity to cross- examine Ronald Broussard. That objection was overruled, the court stating that Ronald Broussard was unavailable and, thus, an exception to the hearsay rule allowed the statement to be admitted.

There is no exception which would allow for the admission of Ronald Broussard's statement. The state relies on the provisions of La.Code Evid. art. 804(B)(3) in arguing the transcript falls under an exception to the rule excluding hearsay evidence. This argument is misplaced.

"The Confrontation Clause of the Sixth Amendment to the United States Constitution requires that a defendant in a criminal case be allowed within traditional limits to impeach the credibility of a prosecution witness by cross-examination directed at possible bias or interest." State v. Senegal, 316 So.2d 124 (La.1975).

Louisiana Constitution Article I, § 16 provides that every person accused of a crime is entitled to a fair trial and "is entitled to confront and cross- examine the witnesses against him...." La.R.S. 15:273 provides that [t]he accused shall have the right to be confronted with the witnesses against him and the depositions of witnesses shall not be evidence either for or against him except as provided by law.

A substantial denial of the right to cross-examine a witness cannot be considered harmless error. Senegal, 316 So.2d 124; see also State v. Elias, 229 La. 929, 87 So.2d 132 (1956). In the matter before us, the defendant was denied his right to cross-examine the witness entirely because the witness was not required to appear. As this is a direct violation of a basic constitutional right guaranteed every person accused of a crime by both federal and state constitutional provisions, it cannot be considered harmless. REVERSED.

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The court of appeal's interpretation of La.Rev.Stat. Ann. § 15:301.1 places at issue the question of whether the statute could be applied retroactively and questions the authority of a reviewing court to amend or order amended an "illegally lenient" sentence when the State did not object below or complain on appeal of the leniency.

1999 LA. ACTS 94, effective August 15, 1999, embodied La.Rev.Stat. Ann. § 15:301.1 which provides:

A. . . . . . The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

B. If a sentence is inconsistent with statutory provisions, upon the court's own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate or supervisory relief for the purpose of amending the sentence as provided in this Section.

C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.

D. Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.

The appellate courts of this state are split on the retroactive application of La.Rev.Stat. Ann. § 15:301.1 and the implications of the 180-day time period referenced in Paragraph (D). The First Circuit has simply cited La.Rev.Stat. Ann. § 15:301.1 without elaboration, and has applied it retroactively to crimes and sentences which occurred prior to the effective date of La.Rev.Stat. Ann. § 15:301.1, long after the 180-day amendment period ran. Williams, 99-1840 at 6; State v. Houston, 98-2658 (La.App. 1 Cir. 9/24/99), 754 So.2d 256; State v. Cadiere, 99-069 (La.App. 1 Cir. 2/18/00), 754 So.2d 294, writ denied, 00-815 (La.11/13/00), 774 So.2d 971. [FN3] The same panel of judges decided these First Circuit cases; Judge Pettigrew dissented in each case. In stark contrast, the Third and Fifth Circuit Courts of Appeal have declined to apply La.Rev.Stat. Ann. § 15:301.1 to sentences imposed prior to August 15, 1999, apply the prior case law, and in general strictly apply the 180-day time period announced in paragraph (D).

From the outset, we do not find that application of La.Rev.Stat. Ann. § 15:301.1 to sentences imposed prior to the statute's effective date violates the prohibition against ex post facto laws. . . . .

A careful reading of La.Rev.Stat. Ann. § 15:301.1 shows that the statute neither increases punishment for a criminal offense nor alters the terms and conditions of punishment previously established by the Legislature for the commission of a crime. Rather, the thrust of La.Rev.Stat. Ann. § 15:301.1 is procedural, i.e., it assures that legislatively recognized criminal penalties are imposed and that amendments to sentences are timely completed. Accordingly, the retroactive application of La.Rev.Stat. Ann. § 15:301.1 to sentences imposed prior to August 15, 1999, does not constitute a violation of the prohibition against ex post facto laws.

Prior to August 15, 1999, the effective date of La.Rev.Stat. Ann. § 15:301.1, amendments to sentences of this kind were barred. In State v. Jackson, 452 So.2d 682 (La.1984), this Court made clear that this sort of "unsought modification ... either is or appears to be retaliatory in nature," and "may have a 'chilling effect' on the exercise of the [defendant's] right to appeal." Id. at 683. . . . . .

Furthermore, in State v. Fraser, 484 So.2d 122 (La.1986), we were called upon to consider the legislative amendment to La.Code Crim. Proc. Ann. art. 882. That article, which had provided that "[a]n illegal sentence may be corrected at any time by the court that imposed the sentence," was legislatively amended to provide further "[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review." (emphasis added). After several appellate courts interpreted that amendment as an effort by the Legislature to change the law in Jackson, we considered that issue and determined otherwise. Although we recognized that a defendant does not have a constitutional right to an illegally lenient sentence, we nonetheless determined that the reviewing court need not correct a sentencing error when the State had not complained. Id. at 124.

Moreover, we observed: "[T]he appearance of an impartial judiciary is not served when an appellate court supplies an objection [for] the prosecutor who has not complained that the defendant did not receive the harshest minimum sentence under the penalty statute. It is the prosecutor's duty to protect the state's interest in obtaining adequate sentences, and the criminal justice system suffers no detriment from the application of time-honored procedural rules which require the parties, and not the appellate court, to complain of some dissatisfaction with the judgment of the lower court in order to obtain any favorable change in the judgment or appeal."

In Section 2 of 1999 LA. ACTS 94, the genesis of La.Rev.Stat. Ann. § 15:301.1, the Legislature stated:

The provisions of Section 1 of this Act shall legislatively overrule the cases of State v. Jackson, 83-2360 (La.S.Ct.6/25/84), 452 So.2d 682, Pierre v. Maggio, 83-0806 (La.S.Ct.1/27/84), 445 So.2d 425, and any other case which is contrary to the provisions of this Act. [FN6]

FN6. Pierre v. Maggio, 445 So.2d 425 (La.1984) has little application, if any, to the present case. The Pierre decision prohibited the Department of Public Safety and Corrections ("DOC") from interpreting terms and conditions of imprisonment. Thus, when a trial court omitted parole restrictions in the pronouncement of sentence for a crime the penalty of which carried parole restrictions, under Pierre, the DOC records had to track the sentence actually imposed, for the "custodian's obligation is to see that the sentence imposed is the sentence served." Id. at 425.

Under La.Rev.Stat. Ann. § 15:301.1, DOC may safely determine an inmate's parole eligibility by reference to the statute under which sentence was imposed.

Neither State v. Jackson, 452 So.2d 682 (La.1984) nor State v. Fraser, 484 So.2d 122 (La.1986), specifically addressed the constitutional issue of whether a correction of sentence on appellate review (which imposes a more onerous sentence on the defendant/sole appellant) violates the due process rights of a defendant by its chilling effect on the exercise of the right of appeal. See Fraser, 484 So.2d n. 6 at 124.

Implicit in the due process clause is the protection of an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re: Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S. 307 (1979). Thus, an accused has a constitutional right to appellate review of the evidence which determines whether the record could reasonably support a finding of guilty beyond a reasonable doubt. Jackson; State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Although a criminal defendant has the constitutional right to have his conviction reviewed to insure that the State proved his guilt beyond a reasonable doubt, it is nonetheless well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence.

It is well settled that "the chilling [effect on] appeals does not in and of itself offend due process." United States v. Henry, 709 F.2d 298, 316 n. 26 (5 th Cir.1983). More specifically, due process is not offended by all possibilities of increased punishment after appeal, only by those which involve "actual retaliatory motivation" or "pose a realistic likelihood of 'vindictiveness'." Blackledge v. Perry, 417 U.S. 21 (1974); Henry, 709 F.2d at 315-16. . . . . . Simply stated, when a court complies with a nondiscretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists.

Against this backdrop, we now turn to Paragraphs (A), (B), and (C) of La.Rev.Stat. Ann. § 15:301.1, those remedial sentencing provisions designated as statutorily amended and those which are amendable.

Paragraph A of La.Rev.Stat. Ann. § 15:301.1 addresses those instances where sentences contain statutory restrictions on parole, probation or suspension of sentence. See e.g.: La.Rev.Stat. Ann. § 14:64 (armed robbery); La.Rev.Stat. Ann. § 15:529.1(A)(2)(b)(ii) (third felony offenders convicted of a crime of violence); La.Rev.Stat. Ann. § 14:44 (aggravated kidnapping); or . . . . . . In instances where these restrictions are not recited at sentencing, La.Rev.Stat. Ann. § 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court.

Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

Paragraph B of La.Rev.Stat. Ann. § 15:301.1, though not self-activating as Paragraph A of La.Rev.Stat. Ann. § 15:301.1, [FN7] provides the court or the district attorney with authority to have a sentence which is inconsistent with the statutory provisions to be amended by the sentencing court. It appears that this paragraph is addressed to sentencing restrictions other than parole, probation, or suspension of sentence. By way of example, in the present case La.Rev.Stat. Ann. § 14:98(D) provides for the mandatory imposition of a $2,000 fine, and, subject to certain exceptions enumerated in La.Rev.Stat. Ann. § 14:98(D)(2)(b) and (c), La.Rev.Stat. Ann. § 14:98(D)(2)(a) requires the mandatory sale of the vehicle being driven at the time of the offense.

Viewing these statutory provisions in light of the defendant's due process rights and his recognized right in Louisiana to seek appellate review of his conviction, we find no impediment to the Legislature's statement that La.Rev.Stat. Ann. § 15:301.1 was enacted to change the law in State v. Jackson and its progeny. No portion of La.Rev.Stat. Ann. § 15:301.1 conflicts with a constitutional principle to which the legislative enactment must yield. Paragraphs A, B, and C of La.Rev.Stat. Ann. § 15:301.1 simply provide for the correction of illegally lenient sentences and neither increase a defendant's sentencing exposure nor increase a legal sentence. Accordingly, we find that the provisions of this legislative enactment do not impede the defendant's constitutional right to appeal.

La.Rev.Stat. Ann. § 15:301.1(D) incorporates an amendatory time limit. . . . . . .a cursory reading of the proviso seems to unwittingly limit La.Rev.Stat. Ann. § 15:301.1(A) and conflicts with the provision of La.Code Crim. Proc. Ann. art. 882 which allows an illegal sentence to be corrected at "any time."

After reviewing the committee minutes, it is apparent from the few comments that the concern for a time limit was directed to the district rather than the appellate courts. That being said, we must now attempt to discern whether the appellate court in the case sub judice, acting 16 months after the defendant's initial sentencing, was authorized to vacate the defendant's sentence and remand for re-sentencing.

Initially, we find that the time limitation recognized in Paragraph D of La.Rev.Stat. Ann. § 15:301.1 is inapplicable to Paragraph A; to rule otherwise would eviscerate the intent of this element of the legislative enactment. To the extent that Paragraph C of La.Rev.Stat. Ann. § 15:301.1 may be applicable to restricted criminal sentences to be served without benefit of probation, parole, or suspension of sentence, the thrust of Paragraph A of La.Rev.Stat. Ann. § 15:301.1, or any one or a combination of those restrictions, we likewise find Paragraph D of La.Rev.Stat. Ann. § 15:301.1 inapplicable. As noted earlier, we recognized that this provision directs that sentences that require statutory restrictions on parole, probation, or suspension of sentence are "deemed to contain [those] provisions," [FN10] (emphasis added) whether or not the sentencing court pronounces those restrictions at the time of initial sentencing. It is clear from the statutory language that this proviso is self-activated, eliminates the remand for ministerial correction of sentence, and requires no notice to the defendant. [FN11] Simply stated, the provisions of Paragraphs A and C do not call for amendment as no correction is required. Rather, that which was legislatively mandated at the time of sentencing is recognized as having existed statutorily without pronouncement being necessary. Accordingly, we find it was appropriate for the appellate court in the present case to so note that "[a]t least six months of the [defendant's] sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence." La.Rev.Stat. Ann. § 14:98(D)(1). However, because of the complete failure of the sentencing court to abide by any of the sentencing requirements of La.Rev.Stat. Ann. § 14:98(D)(1) and because an element of sentencing discretion existed as regards the length of sentence served without benefit of parole, probation, or suspension of sentence, it was necessary for the appellate court to remand the matter to the trial court for re-sentencing.

In the present case, the appellate decision further recognized that the sentencing court's choice of sentence was inconsistent with the statutory provisions which called for a mandatory fine of $2,000, La.Rev.Stat. Ann. § 14:98(D)(1), required the sale of the vehicle, La.Rev.Stat. Ann. § 14:98(D)(2)(a), and involved punishment not authorized by La.Code Crim. Proc. Ann. art. 894.2(G), (J), the home incarceration statute. Utilizing the categories recognized in La.Rev.Stat. Ann. § 15:301.1, these errors would potentially fall under the provisions of Paragraph (B), sentencing elements which are inconsistent with statutory provisions.

A close examination of the language of Paragraph (B) shows that its provisions are activated by the sentencing court or the district attorney. If the district attorney is unable to have the sentencing court amend a sentence that is inconsistent with statutory provisions in the trial court, Paragraph (B) further allows an appellate court to amend such a sentence if the district attorney has invoked appellate review or applied for supervisory relief. In the case sub judice, the sentencing amendment was not sought by either the sentencing court or the district attorney.

The plain language of Paragraph (D) subjects sentencing amendments "authorized by the provisions of this Section" to the 180-day time limitation. As pointed out, no amendment of the defendant's sentence was accomplished through any provision of La.Rev.Stat. Ann. § 15:301.1: sentencing errors akin to those delineated under Paragraph A are not subject to amendment; and those errors recognized in Paragraph B were not raised either by the sentencing court or the district attorney, the method authorized in La.Rev.Stat. Ann. § 15:301.1(B). Accordingly, whatever time limitation provided in Paragraph D was inapplicable to the appellate court under the particular procedural facts present. [FN12]

FN12. Because this case does not fall within the purview of La.Rev.Stat. Ann. § 15:301.1, we are not called upon to reconcile any conflict which may exist between Paragraph D of La.Rev.Stat. Ann. § 15:301.1 and La.Code Crim. Proc. Ann. art. 882.

Rather, in the present case, the authority of the appellate court to recognize sentencing error arises in part from the self-activating provisions of La.Rev.Stat. Ann. § 15:301.1(A) (i.e., the failure to impose sentence without benefit of parole, probation, or suspension of sentence) and under the general provisions of La.Code Crim. Proc. Ann. art. 882 (the sentencing errors other than those which fall under La.Rev.Stat. Ann. § 15:301.1(A)). Under the provisions of article 882, "[a]n illegal sentence may be corrected at any time by ... an appellate court on review." (emphasis added). Accordingly, the appellate court on its own properly noticed the numerous sentencing errors in the punishment that the sentencing court imposed without the need to concern itself with the time limitations of Paragraph D.

DECREE

For the foregoing reasons, the judgment of the appellate court is affirmed and this case is remanded to the district court for re-sentencing. Those appellate court decisions inconsistent with the views expressed in this opinion are overruled.

AFFIRMED AND REMANDED TO DISTRICT COURT.

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