Opinion
NO. 2017 CA 0002
06-14-2017
ERNEST BILLIZONE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Ernest Billizone Winnfield, Louisiana Plaintiff/Appellant In Proper Person Debra A. Rutledge Baton Rouge, Louisiana Attorney for Defendant/Appellee Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION
On Appeal from The 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana
Trial Court No. C635321
The Honorable Donald R. Johnson, Judge Presiding Ernest Billizone
Winnfield, Louisiana Plaintiff/Appellant
In Proper Person Debra A. Rutledge
Baton Rouge, Louisiana Attorney for Defendant/Appellee
Louisiana Department of Public
Safety and Corrections BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. CRAIN, J.
Ernest Billizone, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, appeals a district court judgment dismissing this proceeding without prejudice. We interpret the pleadings to request only credit for time served against the defendant's ninety-day revocation sentence. We amend the judgment and, as amended, affirm.
FACTS AND PROCEDURAL HISTORY
The record on appeal is limited, but it appears Billizone was on parole when he was arrested in August, 2014. Following his arrest, Billizone was placed in physical custody at the Jefferson Parish Correctional Center.
According to Billizone's pleading, at a hearing in early September, 2014, he agreed to a "90 day turn-around" for an alleged parole violation, which we construe to mean he agreed to a sentence authorized by Louisiana Revised Statute 15:574.9G. Under that statute, an offender whose parole is revoked for a "technical violation" must serve a "technical revocation sentence" not to exceed ninety days for the first violation. See La. R.S. 15:574.9G(1)(a); see also La. R.S. 15:574.7B. Upon completion of the ninety-day revocation sentence, the offender is released from physical custody and allowed to remain on parole. See La. R.S. 15:574.9G(1)(a). By permitting the offender to resume parole after completion of the revocation sentence, Subsection 15:574.9G creates an exception to the general revocation provision, Subsection 15:574.9E, which requires an offender, upon revocation of his parole, to return to physical custody for the remainder of his original sentence as of the date of his parole release. See La. R.S. 15:574.9E; Marcantel v. Louisiana Parole Board, 13-0039, 2014WL1387765 (La. App. 1 Cir. 4/8/14).
All citations herein to Section 15:574.9 are to the version in effect prior to its amendment by La. Acts 2015, No. 299, §1.
Although Billizone alleged he agreed to a technical violation at the September hearing, his parole status was not formally reviewed and revoked until a revocation hearing on November 6, 2014. Prior to that date, and apparently under the belief a ninety-day revocation sentence had already been imposed, Billizone filed two proceedings seeking various relief concerning the revocation sentence, including a credit against the sentence for time served since his arrest in August, 2014.
The first claim was filed with the Department under the Corrections Administrative Remedy Procedure Act (CARP) and was assigned case number HDQ-2014-3643. See La. R.S. 15:1171-79. The Department denied the claim, finding, in part, that "parole issues should be addressed through Probation and Parole, not the Administrative Remedy Procedure." The second claim, filed in the Nineteenth Judicial District Court while the CARP claim was still pending, is captioned "Motion for Writ of Habeas Corpus." In that pleading, Billizone again alleges he is entitled to a credit for time served before the revocation hearing; however, he also alleges the actions of the parole committee violated numerous provisions of the state and federal constitutions. Specifically, Billizone alleges the committee, by purportedly imposing a ninety-day revocation sentence, exceeded its statutory authority, unconstitutionally usurped the role of the judiciary, and illegally increased his sentence for the original offense. As a result, Billizone claims he is entitled to immediate release and requests that a writ of habeas corpus issue for that purpose.
Billizone also asserted that before his arrest for the parole violation, he was improperly placed on home incarceration. Because the dismissal of that claim was not assigned as error or briefed on appeal, any objection to that dismissal is considered abandoned. See Rule 2-12.4B(4), Uniform Rules—Courts of Appeal.
The parole committee held a revocation hearing to consider Billizone's alleged parole violation. Finding Billizone violated the terms of his parole, the committee revoked his parole, declared him a first-time technical violator, and ordered a ninety-day revocation sentence ending on February 4, 2015. Billizone served the sentence and was released from Jefferson Parish Correctional Center on the scheduled date.
Approximately one year later, the claim filed in the Nineteenth Judicial District Court was reviewed by a commissioner pursuant to Louisiana Revised Statutes 13:713. The commissioner found the issue before the court—whether Billizone was entitled to credit for time served and, as a result, had fulfilled the ninety-day revocation sentence — mooted by his release from physical custody. The commissioner recommended the suit be dismissed without prejudice. After a de novo review, the trial court agreed and signed a judgment dismissing the matter without prejudice. Billizone appeals.
Billizone initially sought appellate review of the district court's judgment in a "Petition for Writ of Habeas Corpus" filed with this court. In response, a different panel of this court considered the petition to be an application for supervisory writs and denied it, stating the trial court's judgment is a final, appealable judgment under Louisiana Revised Statute 15:1177A(10). See Billizone v. Louisiana Department of Public Safety and Corrections, 2016-0608 (La. App. 1 Cir. 6/1/16).
DISCUSSION
On appeal, Billizone argues the parole committee exceeded its authority and unconstitutionally usurped the judiciary's authority by imposing the ninety-day revocation sentence. Alternatively, he maintains he is entitled to credit for time served from the date of his arrest, and thus his ninety-day revocation sentence should have ended in November, 2014, when he should have been released.
Billizone suggests the parole committee's authority does not extend to him because he was originally released under the diminution of sentence provisions of Louisiana Revised Statute 15:571.5. Thus, according to Billizone, he was not on parole at the time of the alleged violation, but had been released "as if on parole." This argument has no merit. See La. R.S. 15:571.5B(2) ("The person released because of diminution of sentence pursuant to this Part shall be supervised in the same manner and to the same extent as if he were released on parole... If [he] . . . violates a condition imposed by the parole committee, the committee shall proceed in the same manner as it would to revoke parole to determine if the release upon diminution of sentence should be revoked.")
The commissioner considered Billizone's "motion" to be a petition seeking judicial review of his administrative claim governed by the provisions of CARP. See La. R.S. 15:1177. We agree the claim seeking credit for time served is governed by CARP (the "CARP claim"). CARP is the exclusive remedy for an offender to challenge the Department's time computations for his sentence, including credit for time served. See Madison v. Ward, 00-2842 (La. App. 1 Cir. 7/3/02), 825 So. 2d 1245, 1252 (en banc).
Judicial review of a CARP claim is governed by Louisiana Revised Statute 15:1177. A reviewing court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative decisions or findings are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. La. R.S. 15:1177A(9). On appeal of the district court's judgment, the appellate court reviews the administrative record de novo under the criteria of Subsection 15:1177A(9), owing no deference to the factual findings or legal conclusions of the district court. Addison v. Louisiana Department of Corrections, 15-1069 (La. App. 1 Cir. 2/26/16), 191 So. 3d 1077, 1078.
In Black v. LeBlanc, 15-1917 (La. App. 1 Cir. 6/3/16), 197 So. 3d 215, this court considered whether an offender's release from custody mooted his CARP claim seeking sentence credits. The offender filed a CARP claim asserting the Department failed to give credit for probation time, erroneously calculated the remainder of his sentence, and improperly denied good time credit. See Black, 197 So. 3d at 216. After the Department denied the claim, the offender filed a pleading in district court requesting a recalculation of his good time credit. While the claim was pending, the offender was released from incarceration. The commissioner found the issue presented by the grievance (a request for good time credit) was moot. The district court agreed and signed a judgment dismissing the claim. Black, 197 So. 3d at 217.
On appeal, this court found the claim was not moot, citing Louisiana Revised Statute 15:1171D, which provides that one's status as an "offender," for purposes of CARP, is determined "as of the time the basis for a complaint or grievance arises" and is not affected by subsequent acts, including "release from custody." Black, 197 So. 3d at 218. The trial court's judgment dismissing the proceeding, however, was affirmed because the appellate court found the offender's claim had no merit. See Black, 197 So. 3d at 218.
In accordance with Black, we find Billizone's right to judicial review of his CARP claim seeking credit for time served was not rendered moot by his release from physical custody. However, upon de novo review and for the reasons provided below, we find no merit to the claim and, for that reason, affirm its dismissal. See La. R.S. 15:1177A(9); Black, 197 So. 3d at 218.
Billizone alleges he was arrested for a parole violation and taken into physical custody in August, 2014, and later agreed to a technical violation and a ninety-day revocation sentence. Based upon the foregoing, he asserts he is entitled to credit for time served prior to the November 6, 2014 revocation hearing. However, the statute governing revocation for first-time technical violations specifically provides that the offender "shall be required to serve not more than ninety days without diminution of sentence or credit for time served prior to the revocation." See La. R.S. 15:574.9G(1)(a) (emphasis added). The statute further provides, "The term of the revocation for the technical violation shall begin on the date the committee on parole orders the revocation." See La. R.S. 15:574.9G(1)(a).
As this statutory language confirms, Billizone is not entitled to credit against his revocation sentence for time served prior to his parole revocation. His revocation sentence began on the date his parole was revoked, November 6, 2014, and expired ninety days later on February 4, 2015, the day he was released. See La. R.S. 15:574.9G(1)(a). Accordingly, Billizone's claim seeking credit for time served before the revocation hearing has no legal basis. We affirm the trial court's judgment dismissing the claim, but amend the judgment to reflect the dismissal is with prejudice. See La. R.S. 15:1177A(9).
At the conclusion of his appellate brief, Billizone states "all the petitioner requests is that he be given . . . ninety (90) days credit toward the sentence in Docket 15-3716 . . . which he is now serving, and the issue will be resolved." The record does not reflect the referenced proceeding, but Billizone is apparently referring to the convictions and sentences affirmed in State v. Billizone, 16-478, 2016WL7230093 (La. App. 5 Cir. 12/14/16). His entitlement to a credit against the sentences imposed in that matter is not before the court in this proceeding. --------
This finding, however, does not complete our review. Billizone's pleading is not confined to his CARP claim. He also alleges he is entitled to immediate release through a writ of habeas corpus, because the parole committee unconstitutionally exceeded its authority by imposing the revocation sentence. That claim is not an administrative matter governed by CARP; but is a proceeding invoking the district court's original jurisdiction. See La. Code Crim. Pro. arts. 351-70; Ferrington v. Louisiana Board of Parole, 03-2093 (La. App. 1 Cir. 6/25/04), 886 So. 2d 455, 457, writ denied, 04-2555 (La. 6/24/05), 904 So. 2d 741; Bernard v. Louisiana Department of Public Safety and Corrections, 00-1912 (La. App. 1 Cir. 9/20/02), 843 So. 2d 413, 414, writ denied, 02-2613 (La. 1/9/04), 862 So. 2d 975. Although the district court erred in finding these allegations are governed by CARP, it did not err in dismissing the claim as moot.
It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. Cat's Meow, Inc. v. City of New Orleans, Through the Department of Finance, 98-0601 (La. 10/20/98), 720 So. 2d 1186, 1193. An issue is moot when a judgment or decree on that issue is deprived of practical significance or made abstract or purely academic. Tobin v. Jindal, 11-0838 (La. App. 1 Cir. 2/10/12), 91 So. 3d 317, 321. A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Animal Legal Defense Fund v. State, Department of Wildlife and Fisheries, 12-0971 (La. App. 1 Cir. 4/25/13), 140 So. 3d 8, 19, writ denied, 13-1565 (La. 10/4/13), 122 So. 3d 1025. If the case is moot, there is no subject matter on which the judgment of the court can operate. Animal Legal Defense Fund, 140 So. 3d at 19.
The only relief Billizone seeks in alleging constitutional violations is his immediate release from physical custody. As previously observed, while this claim was pending, Billizone was released from physical custody. Similar circumstances were presented in Black v. Louisiana Department of Public Safety and Corrections, 16-0653, 2017WL66344 (La. App. 1 Cir. 1/5/17) (Black II), where the offender sought habeas corpus relief and sought immediate release due to deficiencies in his commitment documents and the bill of information giving rise to his prosecution and conviction. While the proceeding was pending, the offender completed his sentence and was released. Upon the commissioner's recommendation, the district court found the offender's release rendered the suit moot, and the matter was dismissed without prejudice. This court affirmed the judgment on appeal. See Black II, 2017WL66344 at 1-2.
We likewise find Billizone's request for an immediate release was rendered moot by his release from physical custody on February 4, 2015. A judgment will serve no useful purpose nor give practical relief or effect to that claim. See Animal Legal Defense Fund, 140 So. 3d at 19. The district court did not err in dismissing this claim without prejudice.
CONCLUSION
The district court's judgment is amended to provide that Billizone's claim seeking credit against his revocation sentence for time served before the revocation hearing is dismissed with prejudice. As amended, the judgment is affirmed in all other respects. Costs of this appeal are assessed to Ernest Billizone.
JUDGMENT AMENDED AND AFFIRMED.