2015 CA 1787
Charles Allen Treece Concord, North Carolina Plaintiff/Appellant, In Proper Person Jonathan R. Vining 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 In and for the Parish of East Baton Rouge State of Louisiana
Trial Court No. C594927, Sec. 23 The Honorable William Morvant, Judge Presiding Charles Allen Treece
Concord, North Carolina Plaintiff/Appellant,
In Proper Person Jonathan R. Vining
Baton Rouge, Louisiana Attorney for Defendant/Appellee,
Louisiana Department of Public
Safety and Corrections BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. DRAKE, J.
Appellant, Charles Allen Treece, who was previously an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), housed at Allen Correctional Center in Kinder, Louisiana, appeals a judgment of the district court that dismissed his petition for judicial review with prejudice. Based on our review of the record, we affirm the district court's judgment.
FACTS AND PROCEDURAL HISTORY
Mr. Treece filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) seeking review of prison disciplinary decision No. ALC-2011-103 in accordance with the Louisiana Corrections Administrative Remedy Procedure ("CARP"), La. R.S. 15:1171, et seq. Mr. Treece was in the custody of DPSC while serving a thirty-five year sentence for armed robbery. He claims that DPSC miscalculated the good time to which he was entitled and that he should have been released in March of 2011, rather than his projected release date of June 11, 2012. When the credits were not applied to recalculate his good time release date, Mr. Treece filed his request for administrative relief pursuant to CARP. The request was denied. At the first step of the CARP process, Mr. Treece was told that he was not eligible to earn a diminution of sentence at the rate of thirty-five days for every thirty days in actual custody pursuant to 2010 La. Acts, No. 649, which amended La. R.S. 15:571.3, because he was serving a sentence for a crime of violence as defined by La. R.S. 14:2(B). At the second step, his request was again denied.
At the time Mr. Treece filed for judicial review, he was incarcerated. The exact date of his release is not contained in the record, but by November 3, 2014, Mr. Treece was residing in North Carolina. His projected release date was June 11, 2012.
An inmate alleging an error in computation of good time credits is required to pursue his claim through CARP. Whitehead v. Rogers, 2013-0657 (La. App. 1 Cir. 12/27/13), 2013 WL 6858297, p. 1 n. 1, writ denied, 2014-0227 (La. 10/3/14), 149 So. 2d 791.
Mr. Treece filed a petition for judicial review in the district court. The 19th JDC Commissioner (Commissioner) issued a recommendation that the final administrative decision be affirmed. The Commissioner reasoned that subparagraph (B)(1)(b) of La. R.S. 15:571.3 excluded prisoners who were sentenced for crimes of violence from earning good time at the rate of thirty-five days for thirty days as provided in sub-paragraph (B)(1)(a). The district court rendered judgment on January 5, 2012, adopting the recommendation of the Commissioner after considering the administrative record, the Commissioner's Report, and the traversal filed by Mr. Treece. It is from this judgment that Mr. Treece appeals urging five assignments of error.
The office of commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5); see Martinez v. Tanner, 2011-0692 (La. App. 1 Cir. 11/9/11), 79 So. 3d 1082, 1084 n.3, writ denied, 11-2732 (La. 7/27/12), 93 So. 3d 597.
Louisiana Revised Statutes 15:1177(A)(9) sets forth the appropriate standard of review by the district court, which functions as an appellate court when reviewing the DPSC's administrative decisions. Judicial review is mandated to be conducted by the trial court without a jury and must be confined to the record. La. R.S. 15:1177(A)(5). Specifically, the court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative 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 (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9); Lightfoot v. Stalder, 2000-1120 (La. App. 1 Cir. 6/22/01), 808 So. 2d 710, 715-716, writ denied, 2001-2295 (La. 8/30/02), 823 So. 2d 957.
On review of the district court's judgment under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747 (La. App. 1 Cir. 9/22/00), 770 So. 2d 447, 450-51.
In his brief, Mr. Treece asserts that the administrative proceeding was incomplete because the Commissioner did not hold a second hearing. On June 21, 2011, the Commissioner held a hearing and Mr. Treece, who was incarcerated at the time, attended by video conference. The Commissioner ordered DPSC to respond to Mr. Treece's claim regarding a private prison contractor, which was not part of his original petition for judicial review. The minutes indicate that "this matter was laid over for thirty days for continued hearing." Following the conference, DPSC filed a "Notice of Compliance" on June 27, 2011, noting that on June 23, 2011, Mr. Treece's grievance was rejected in HDQ-2011-1374 "as a disciplinary matter only appealable through the disciplinary appeals procedure." Mr. Treece filed a motion for oral argument on July 5, 2011. On December 12, 2011, the Commissioner issued his recommendation.
Pursuant to CARP, the review of a district court is to be conducted "without a jury and shall be confined to the record." La. R.S. 15:1177(A)(5). A party who desires oral argument must make a timely request and include the reasons oral argument should be had. It is within the district court's discretion whether to hear oral argument. La. R.S. 15:1177(A)(6)(a). Mr. Treece did request oral argument, but there is nothing in the record granting oral argument, and we note that the motion in the record does not have an order attached. In any event, it is within the discretion of the district court to hear oral argument. Therefore, the fact that the Commissioner did not find it necessary to conduct a second hearing is not error.
Mr. Treece's second and third assignments of error claim that the district court erred in its interpretation of Act 649. Mr. Treece argues that his good time was calculated incorrectly, and he was not granted thirty-five days for every thirty days served as required by La. R.S. 15:571.3(B)(1), which was amended and reenacted by Act 649, effective October 15, 2010.
In accordance with the general rules of statutory interpretation, the interpretation of any statutory provision begins with the language of the statute itself. In re Succession of Faget, 2010-0188 (La. 11/30/10), 53 So. 3d 414, 420. Further, when the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. C.C. art. 9; La. R.S. 1:4; In re Clegg, 2010-0323, (La. 7/6/10), 41 So. 3d 1141, 1154. Accordingly, we are bound to a strict interpretation of the plain language of La. R.S. 15:571.3, to which we now turn.
Relying on the above principles, we find no ambiguity in La. R.S. 15:571.3. The Legislature increased the amount of good time available to certain prisoners from thirty days to thirty-five days by 2006 La. Acts, No. 572, § I. Mr. Treece originally applied for restoration of good time credits on May 11, 2010. At that time, Louisiana Revised Statutes 15:571.3 provided, as follows:
Louisiana Revised Statutes 15:571.3 has been amended numerous times since 2010. However, at issue in this matter is 2010 La. Acts, No. 649, § 1, effective October 15, 2010, which amended La. R.S. 15:571.3 after Mr. Treece filed his request to restore good time credits (May 11, 2010). Act 649 specifically applied to persons convicted of offenses on or after January 1, 1992.
Act 572 only increased the good time for those persons convicted of offenses on or after August 15, 2006, which did not include Mr. Treece who was convicted on January 23, 1995.
A. (1) Every prisoner in a parish prison convicted of an offense and sentenced to imprisonment without hard labor, except a prisoner convicted a second time of a crime of violence as defined by R.S. 14:2(B)...may earn a diminution of sentence, to be known as "good time", by good behavior and performance of work or self-improvement activities, or both. The amount of diminution of
sentence allowed under this Paragraph shall be at the rate of thirty days for every thirty days in actual custody, except for a prisoner convicted a first time of a crime of violence, as defined in R.S. 14:2(B), who shall earn diminution of sentence at the rate of three days for every seventeen days in actual custody, including in either case time spent in custody with good behavior prior to sentence for which the prisoner is given credit.By Act 649, the Legislature amended La. R.S. 15:571.3(B)(1), to provide:
B. (1)(a) Except as provided in Paragraph (B)(2) of this Section, every inmate in the custody of the department who has been convicted of a felony, except an inmate convicted a second time of a crime of violence as defined by R.S. 14:2(B), and sentenced to imprisonment for a stated number of years or months, or when the sentencing court has denied or conditioned eligibility for "good time" as provided in R.S. 15:537, may earn, in lieu of incentive wages, a diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as "good time." Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might be commuted to a specific number of years. The secretary shall establish regulations for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty-five days for every thirty days in actual custody.The version of La. R.S. 15:571.3(B)(2)(a) applicable herein stated:
(b) The provisions of Subparagraph (a) of this Paragraph shall be applicable to persons convicted of offenses on or after January 1, 1992 and who are not serving a sentence for the following offenses:
(i) A sex offense as defined in R.S. 15:541.
(ii) A crime of violence as defined in R.S. 14:2(B).
(iii) Any offense which would constitute a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.R. 15:541, regardless of the date of conviction.
An inmate convicted a first time of a crime of violence as defined in La. R.S. 14:2(B) shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody, including time spent
in custody with good behavior prior to sentence for which defendant is given credit.
Whereas Act 572 only increased the rate of good time from thirty days credit to thirty-five days credit for every thirty days served for those persons convicted on or after August 15, 2006, Act 649 permitted the increase in good time to apply to offenders convicted on or after January 1, 1992, who were not serving sentences for crimes of violence or sex offenses regardless of the date of conviction.
Mr. Treece was serving a sentence for armed robbery, which is a crime of violence pursuant to La. R.S. 14:2(B)(21). He argues that the words "except an inmate convicted a second time of a crime of violence" in La. R.S. 15:571.3(B)(1)(a) means that those convicted only of a single crime of violence are eligible to earn good time at the increased rate of thirty-five days for every thirty days served.
Those convicted of a second crime of violence are not eligible at all to earn good time. La. R.S. 15:571.3(D). Mr. Treece was able to earn good time, since he was only convicted of a single crime of violence. The rate at which he earned good time is at issue. Louisiana Revised Statutes 15:571.3(B)(1) states that except as provided in subparagraph (B)(2), all offenders not convicted of a second crime of violence earn good time at the increased rate of thirty-five days for every thirty days served. However, subparagraph (B)(2) applies to those who have been convicted of a single crime of violence and sets the rate of good time for those prisoners at three days credit for every seventeen days served. Subparagraph (B)(1)(b) also provides that prisoners serving a sentence for a crime of violence are not eligible for good time at the increased rate of thirty-five days for thirty days served regardless of the date of conviction. Reading the entirety of the provisions of La. R.S. 15:571.3, we agree with the district court that Mr. Treece was not entitled to earn good time at the increased rate of thirty-five days for every thirty-days served.
Mr. Treece claims that La. R.S. 15:571.3 is ambiguous and the rule of lenity applies. "The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. The rule vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed." United States v. Kaluza, 780 F.3d 647, 669 (5th Cir. 2015) (internal quotations omitted). The rule of lenity is to be applied only as a last resort. Id. In order for this court to apply the rule of lenity, it must first find that a statute is ambiguous. We do not find that La. R.S. 15:571.3 is ambiguous; therefore, the rule of lenity does not apply.
Mr. Treece claims that La. R.S. 15:571.3 was again amended by 2011 La. Acts, No. 186 § 2, making him eligible for good time credit of thirty-five days for every thirty days served. Without discussing the substantive changes made by 2011 La. Acts, No. 186 § 2, this court notes that 2011 La. Acts, No. 186 § 5 provides, "The provisions of Section 2 of this Act shall only apply to those persons sentenced on or after August 15, 2011." As Mr. Treece was sentenced well before August 15, 2011, this assignment of error has no merit.
The final two errors Mr. Treece assigns in his brief are repetitious of the previous claims, which have all been addressed above. Therefore, we find no merit to these errors assigned.
Mr. Treece also contends in his brief that on April 1, 2011, he filed a habeas corpus petition pursuant to La. C.Cr.P. art. 351 contesting the computation of his sentence, which went unanswered by DPSC, for which he sought a mandamus order. The district court ordered DPSC to respond to Mr. Treece's mandamus request, which DPSC did on June 15, 2011. DPSC filed an answer alleging that Mr. Treece's mandamus relief was frivolous, since his concerns were addressed within the applicable regulatory delays and by the administrative procedure pursuant to CARP. Oral argument was heard on June 21, 2011, and the district court ordered DPSC to respond to Mr. Treece's private prison contractor claim, since GEO, a private contractor, managed the Allen Correctional Center. In Singleton v. Wilkinson, 2006-0637 (La. App. 1 Cir. 2/14/07), 959 So. 2d 969, 970, this court noted that La. R.S. 39:1800.5 provides in pertinent part:
No contract for correctional services shall authorize, allow, or imply a delegation of authority or responsibility to a prison contractor for any of the following:
Therein, the forfeiture of good time was ultimately reversed by this court because it was unclear if DPSC had reviewed the private contractor's decision to forfeit the good time of the prisoner. Singleton, 959 So. 2d at 971.(5) Granting, denying, or revoking sentence credits.
In this matter, DPSC filed a "Notice of Compliance" indicating that Mr. Treece's grievance with regard to forfeiture of good time credits while housed in a private facility was rejected through the administrative procedure and could only be appealed through that procedure. Despite Mr. Treece's claim, we find no error in the district court's handling of the matter.
In his brief, Mr. Treece also requested "$100,000.00 be entered against the Parish of East Baton Rouge for a denial of due process" and "$100,000.00 for false imprisonment." These claims made by Mr. Treece are tort claims. Louisiana Revised Statutes 15:1171 authorizes the DPSC or the sheriff to adopt, for the particular correctional institution, an administrative remedy procedure for receiving, hearing, and disposing of complaints and grievances by an "offender," which arise while the offender is in custody. The administrative remedy procedure is the formal grievance mechanism that all offenders committed to the custody of the DPSC must use before they may proceed with a suit in federal or state court. LAC 22:I.325(D)(1). As originally enacted, La. R.S. 15:1171 encompassed "complaints and grievances," without any reference to tort actions. Pope v. State, 99-2559 (La. 6/29/01), 792 So. 2d 713, 715-16.
The Parish of East Baton Rouge is not a defendant in this matter. The only proper party is DPSC. See La. R.S. 15:1177(A)(1)(b); Martinez v. Tanner, 2011-0692 (La. App. 1 Cir. 11/9/11), 79 So. 3d 1082, 1082 n.1, writ denied, 2011-2732 (La. 7/27/12), 93 So. 3d 597.
An "offender" means an adult or juvenile offender who is in the physical or legal custody of the DPSC, a contractor operating a private prison facility, or a sheriff when the basis for the complaint or grievance arises. Any subsequent event, including posttrial judicial action or release from custody, shall not affect status as an "offender" for the purposes of this Part. La. R.S. 15:1174(2).
Delictual actions for injury or damages shall be filed separately as original civil actions. La. R.S. 15:1177(C). In response to the Pope decision, the Louisiana Legislature in 2002 amended La. R.S. 15:1177(A) to exclude tort claims from judicial review. See 2002 La. Acts, 1st Ex. Sess., No. 89, § 2, effective April 18, 2002. In amending the statute, however, the Legislature created a specific administrative remedy procedure for prisoner tort claims and reserved the right of a prisoner to file a tort suit in district courts subject to de novo review after he first exhausted the administrative remedy procedure for tort claims set forth in CARP. La. R.S. 15:1172 and La. R.S. 15:1177(C).
Pursuant to the 2002 amendments to La. R.S. 15:1172 and 1177 (2002 La. Acts, 1st Ex. Sess., No. 89, § 2, effective April 18, 2002), the district courts do not function as courts of review (limited to a review of the CARP record), but as courts of original jurisdiction. However, this does not relieve the prisoner of filing an administrative claim (via CARP) pursuant to La. R.S. 15:1172. See Dickens v. Louisiana Correctional Institute for Women, 2011-0176 (La. App. 1 Cir. 9/14/11), 77 So. 3d 70, 73 n.1. --------
Once an offender exhausts the administrative procedure pursuant to CARP, he may file a civil suit in district court pursuant to the Louisiana Prison Litigation Reform Act ("PLRA"), codified in La. R.S. 15:1181, et seq. Louisiana Revised Statutes 15:1181 (2) defines a "civil action with respect to prison conditions" or a "prisoner suit" as:
any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.Furthermore, La. R.S. 15:1184(F) states that:
The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper. [Emphasis added].It is only after an administrative decision regarding a delictual action is rendered that the prisoner has the right to file the prisoner's claim as an original civil action in the appropriate district court. Jackson v. State, 2011-1716 (La. App. 1 Cir. 3/23/12), 92 So. 3d 391, 396, writ granted, 2012-0912 (La. 6/22/12), 90 So.3d 1069.
There is no indication in the record that Mr. Treece has followed the CARP procedure for his tort claims. The first claim for damages by Mr. Treece is in this appeal. In general, appellate courts will not consider issues raised for the first time on appeal. Jackson v. Home Depot, Inc., 2004-1653 (La. App. 1 Cir. 6/10/05), 906 So. 2d 721, 725. Further, La. R.S. 15:1177(A)(5) specifically limits judicial review of DPSC administrative decisions to "the issues presented in the petition for review and the administrative remedy request filed at the agency level." Accordingly, these claims are in violation of La. R.S. 15:1177(A)(5), not properly before this court, and cannot be raised for the first time on appeal. See Lewis v. Stalder, 2010-0143, p. 1-2 (La. App. 1 Cir. 6/11/10) (unpublished). Therefore, Mr. Treece's tort claims are not properly before this court and we cannot address them.
Based on the foregoing, the January 5, 2012 judgment of the district court, which dismissed the suit without prejudice, is affirmed. Costs of this appeal are assessed against plaintiff, Charles Allen Treece.