Mark Leach VS Louisiana Parole Board
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0848 MARK LEACH Ii r A VERSUS lir LOUISIANA PAROLE BOARD On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 532 627 Division Honorable Wilson Fields LA Appellant In Proper Person Charles C Foti Jr Attorney Judge Presiding Plaintiff Mark Leach DeQuincy 0 Attorneys General for Defendant Wendell C Woods Appellee Assistant Louisiana Department of Public Safety and Corrections Baton Board of Parole Attorney General Rouge LA BEFORE PARRO KUHN AND DOWNING JJ Judgment rendered June 6 2008 PARRO J Inmate Mark Leach Louisiana Leach a judgment affirming Department of Public Safety and Corrections that revoked his release Board appeals For the parole on a decision of the Parole Board of Parole following reasons we vacate and render Factual and Procedural Backaround On July 15 2004 Benny Stevens Stevens an agent with the requested On supervision September 9 2004 Leach A that had been issued officer on was s absconding pursuant to the warrant conducted before Leach and Stevens guidelines Leach arrest for s arrested was preliminary hearing September 20 2004 supreme court for Leach a warrant Orleans Department of Public West District Office of the Division of Probation and Parole Safety and Corrections New were a hearing Pursuant to present request for appointment of counsel was denied by the hearing officer At the reported to this preliminary hearing Stevens testified that that he had moved to 3716 reported relocation Stevens attempted the East District Office be Castiglione residing His at this address him that he had provided request On an April 5 2004 Leach Street in New Orleans to have Leach s case denied because Leach Pursuant transferred was to inform incorrect address and that his correct address Castiglione Street According East District Office rejected to Stevens on a second transfer the basis that a female to found not to April 29 2004 Leach contacted Stevens 2716 was was on attempt was to the resident at that address indicated that she did not know Leach and that he did not live at that address Leach explained that he resided probably staying with the visit was a According and to submit Castiglione Street and that he was female friend who resided at 2514 S Galvez Street when attempted by that he needed Stevens at 2716 a parole agent Leach testified that he permission to stay was not aware at a different address to Stevens Leach had failed to report to the West District Office monthly reports from June 2004 through September 2004 A copy of a July 15 2004 instructing Leach Stevens who appointment letter addressed to July 27 on report reported that Leach failed 2004 never Mary Downey Downey met with Stevens After July 15 2004 not been District Office and Leach admitted that he had District was 2 070 Office probable Condition 3 That as directed in the preliminary hearing not on the to the East Nonetheless appointment letter at the listed residence cause that part 9 in a Furthermore the staying was Leach Furthermore S Galvez Street in light of the East hearing officer concluded that the Accordingly hearing officer Leach had violated four conditions of his 14 and 15 final revocation 1 Therefore Leach parole informed that he was hearing before the Parole Board provided I will between the first and fifth by my Parole Agent and also and truthful written report upon the form mail my report to my Parole directed to do so Condition 9 at the stayed overnight with his girlfriend determined take Leach supervision fees monthly reports there rejection of the transfer s would be held for 1 ever obtaining the permission of his parole officer and he acknowledged always stay conditions 3 in likely that Leach actually reported Stevens did not know where Leach found He denied paying his supervision fees and that he had had submitted report to Stevens he did not July 2004 appointment letter considering the evidence offered without first time community service work hearing officer found that it failed to appointed by Although he admitted that he agent in June and monthly reports admitted that he had any into evidence offered supposed transfer to the East District Stevens testified that Leach owed performed Street Castiglione Downey Leach explained that he reported to the East District Office and filled out receiving his was was to appear at the Leach testified that because of his Office to 2716 or day on of each the final provided Agent month at intervals or of my parole make a full for that purpose and that I will day I will report to my Parole Agent when provided stated in my I agree to live and work at the places change residence Parole Agent until after I have or employment 3 parole plan permission to do and will not so from the By letter dated November 21 2004 Leach revocation hearing had informed that he the informed that his was been set for December 16 2004 In that letter parole he was charged with violating the following conditions of parole was in following respects 3 You did not report to agent Stevens answer the appointment letter failed to 9 You girlfriend S directed since you that admitted on as Galvez you had stayed overnight with your Street and had not received permission to stay there from your parole officer You could not be visited at your home without notice due to absconding 14 15 Leach pled You not owe 2 070 in monthly supervision fees hearing Leach testified that he did his niece at the listed address of 2716 denied she This fact was corroborated by the testimony of his to the contrary simply informed the unidentified female that Leach girlfriend having acknowledged s home unable to niece in which she His niece testified that was not at the residence was seeking disability He denied disability status and was having knowledge that the parole required that he perform community service if he pay the supervision fee He also denied provided I understand that I am employment Condition 15 without subject prior to visits by my Parole Agent at my home or place of notice provided I will pay parole supervision fee of 53 00 per month payable the 1st day of each month or if I am unable to pay my fees I will work 20 hours a month community service as directed by my Parole Agent Community service hours worked in lieu of supervision fees will be in addition to any other community by the Board or my supervising Parole Agent 4 were being advised by his supervising officer that he should be attempting community service Cond ition 14 was parole authorities that he stayed overnight He testified that he unable to work due to his condition of his to in fact live with Castiglione Street when the transfer having informed parole authorities Leach denied at a place of employment guilty to all accusations At the final revocation requested or service hours ordered After violation to the listening testimony of Leach and his niece and reviewing the S2nvte e s report and narrative report prepared by that Leach had violated conditions of parole regarding reside at stated a failure to make residence a the Parole Board found failure to report failure himself available for visits supervising parole officers and failure to pay supervision fees further found that Leach s violations involved misconduct unwilling to comply with conditions of parole 2004 the Parole Board revoked Leach Subsequently Leach brought the review of the Parole Board s s indicating See LSA RS arguments the decision commissioner relief if he demonstrates proceeding including Ultimately rights initially noted that the petitioner violation of his due process a rights that the record were violated the revocation during revocation decision be with recommendation upheld and that Leach In Board s s accordance the district court entered Parole to in the revocation s Nonetheless hearing and found an not unwillingness to Accordingly the commissioner recommended that the prejudice From that The narrative only entitled is supported the finding by the Parole Board that the petitioner comply with his conditions 2 audio Following oral proceeding only violated the listed conditions of parole but also displayed affirming the an the commissioner concluded that Leach failed to show his the commissioner reviewed the record of the Parole Board prejudice 15 574 9 D seeking judicial recording of the final revocation hearing before the Parole Board dismissed was December 16 on instant action in district court Board introduced the record from the revocation due process that he hearing before the commissioner for the district court the Parole At the process by The Parole Board Accordingly parole to decision a petition for judicial review be with judgment and dismissing the on commissioner November 10 Leach s s 2006 petition with judgment Leach appealed report reflects that a restitution arrearage letter inform him of the arrearages owed 5 was sent to Leach monthly to Discussion When the Parole made its decision to revoke Board December 16 2004 LSA R S 15 574 11 A Parole is an provided in Leach s parole pertinent part administrative device for the rehabilitation of prisoners under supervised freedom from actual restraint and the granting conditions or revocation of parole rest in the discretion of the Board of Parole No prisoner or parolee shall have a right of the revocation or appeal from a decision of the board regarding reconsideration of revocation of parole except for the denial of a 3 Footnote added revocation hearing under R S 15 574 9 3 As of the December 16 2004 revocation decision LSA When A Department board shall hold unless said constitute a parolee of Public a hearing an admission of the of If the revocation counsel legal or hearing under the appointed the should be revoked parole writing by the parolee A waiver shall the prerevocation proceeding and result waived in findings of the physical custody office of corrections services to consult with and be advised and permitted counsei provided determine whether his expressly in immediate revocation be has been returned to the and Corrections Safety hearing to is 5 R 15 574 9 is not waived the represented by provisions of R S parolee his own 15 149 shall legal At the the parolee may admit deny or explain the violation charged and he may including affidavits and other evidence in support of his contentions Upon request of the parolee the parole board may postpone the rendering of its decision for a specified reasonable time pending receipt of further hearing present proof information necessary to B a final determination The board may order revocation of parole upon a determination that 1 with a The parolee parole condition of his misconduct or another C revoking condition of parole parolee s the parole the warrant to excuse comply parolee will commit parolee unwilling is felony committed recommitting him for before the expiration of must be initiated by a the Board of Parole or officer the running of the period of parole shall another state D A while to comply on parole violation of the his parole term a detainer is issued cease as of the time supervision in this state or supervising jurisdiction or from his place of residence without proof of permission for such absence shall be deemed a fugitive from justice and shall be returned to the physical custody of the Department of Public Safety and Corrections for a revocation hearing by the Board of Parole without necessity of a prerevocation or probable cause hearing at or near the place of the arrest or violation No credit shall be applied toward completing the full parole term for the period of time the parolee was a fugitive from justice or detainer is issued of another commiSSion and parole When a warrant for arrest is issued by satisfactory risk that the that the Other than for conviction of a a involves the substantial including indicating of parole a or misconduct felony with proper conditions action without and The violation of condition 2 felony has failed under parolee who has absented himself from the Parole revocation shall require two votes of a three member if the number of members present exceeds member panel a majority vote of those members present and voting order of revocation shall be reduced to writing and preserved of parole board members or E When the parole of a the violation of the conditions of physical custody of the corrections services and release on Department serve parole subject parolee parole has been revoked the of Public panel three and the the board for parolee shall be returned to the Safety and Corrections office of the remainder of his sentence to consideration by a by the as of the date of his board of any commutation of the sentence and any diminution of sentence earned for good behavior while in the institution The parolee shall be given credit for time served prior to the revocation 6 on In Madison of Parole Board actions in appellate jurisdiction of the Parole Board 15 574 9 is for such a alleged limited 15 574 11 revocation a statutory grant to review decisions hearing under LSA 5 R procedural due process protections specifically afforded the violated were was a Judicial District Court denial of a en provision for appeal with its specified circumstance to the Nineteenth where or hearing a 825 So 2d 1245 1st Cir 7 3 02 App this court concluded that LSA R S banc of La Ward 00 2842 v See Madison 825 So 2d at 1251 4 Therefore only where the parolee has alleged in his petition for judicial review that his right to hearing has been denied revocation a protections specifically afforded by LSA hearing were violated is Leach filed his 2005 His an petition for judicial procedural due was following four was set attached to his forth in petition 5 a In issues Agent Stevens used all proper or not Whether May 23 review in the district court on support of judicial review that this memorandum Leach set forth the a Id petition discloses that the statement of his claim memorandum in process 15 574 9 in connection with such 5 R appeal allowed the or measures to contact petitioner hearing whether such time is served in The out of state institution prior to the revocation conviction of for the a crime subsequent F by in which conviction such Any considered parolee hearing a local detention facility state institution where the revocation is based on the case or shall not receive credit for such time served the parolee subsequent will receive credit for time served to Code of Criminal Procedure Article 880 pursuant prisoner whose parole has been revoked may re parole in accordance with the provisions of the board for be this Part Subsequently No 402 4 LSA R S 15 574 9 was amended by 2006 La Acts 92 No 113 and 2007 La Acts 92 Following Madison the legislature in 2005 specifically recognized the appellate jurisdiction of the district court over 5 pleadings alleging a violation of LSA R S 15 574 9 See LSA R 15 574 11 C 2005 La Acts No 460 iI effective August 15 2005 The district court s review shall be limited Leach s right to to the issues presented in the petition for judicial review LSA R S 15 574 11 C judicial review if any arose at the time of the revocation decision issued on December 16 2004 which was before the effective date of the 2005 amendment therefore Leach s right to judicial review by the district court as sought on May 23 2005 is governed by Madison Cf Bertrand v La App 1st Cir 3 28 07 960 So 2d 979 981 Bertrand Louisiana Parole Board 06 0871 involved an inmate s right to seek judicial review of a revocation decision where allegations of a violation of LSA R S 15 574 9 were made in the inmate s petition for judicial review to the district court The district court reviewed the matter on November 15 clearly had R S a to judicial review 15 574 9 whether it be enacted LSA 5 right 5 R 15 574 11 This attachment was by C by virtue of the incorporated 2005 and therefore into Leach holding s petition 7 in the inmate pleadings alleging a violation of LSA Madison or the provisions of the newly the district court over for judicial review by reference Whether place a or not cause to or not Agent Stevens1 actions were cruel malicious and punish the petitioner for being behind in his Agent Stevens has jurisdiction and probable false arrest warrant out on petitioner Whether with an evil motive to parole fees Whether chairmanL Ms Simon knowingly not revocation Board or gave false information after deliberation to the Parole Board determination of the credibility of These issues pertain witnesses weighing of evidence and whether there its support the revocation of Leach Board that decision s clearly are revocation of parole Furthermore not 15 574 11 A to the Parole which not dispute that a Leach admitted in his revocation provides was hearing appellate brief that he challenging the process by which his liberty had been terminated not was instead challenged the factual information that had been compiled by the agent Since Leach s actions in LSA as sufficient facts to types of challenges LSA R S by were in the discretion of the Board of Parole does conducted by the Parole Board he allowed rests Leach These parole s s 5 R petition for judicial review focuses making its determination Leach 15 574 9 he had stated s no cause petition the district court attack of the factual was subject to dismissal on a 6 without See Madison Board s violation of by the district support his limited right of appeal 15 574 11 A was the Parole to revocation rather than of action to district court under LSA R S Therefore as on court to the 825 So 2d at 1251 appellate jurisdiction to review Leach s findings made by the Parole Board in rendering its revocation decision 6 Notably on appeal Leach questioned for the first time the Parole Board s denial of his request for Since appointment of counsel to represent him in connection with the revocation proceedings Leach did not raise this issue in the district court proceeding he cannot raise this issue on appeal See Uniform Rules Courts of State ex Appeal Rule 1 3 rei Deo tof Health and Hoso Thus we will not address this issue 01 2206 La 8 4 12 02 815 So 2d 80 86 See Geiaer v Decree For these reasons the district court rendered dismissing Leach assessed judgment petition for judicial is vacated and judgment is Costs of this review appeal against Mark Leach s are VACATED AND RENDERED 7 Pursuant to Madison was not appealable jurisdiction See Madison Corrections 00 1912 1 9 04 LSA R S the district court review La 862 So 2d 975 15 574 11 by s dismissal for this court would 825 So 2d at 1251 App 1st Cir 9 20 have Bernard v 02 been a by lack of appellate jurisdiction writ under its supervisory Louisiana Deot of Public Safety and 843 So 2d 413 414 writ denied Nonetheless as of the November 10 2006 02 2613 that a n aggrieved party may appropriate court of appeal Accordingly under Leach s appeal of this matter to this court was proper C provided 9 La of the district court judgment appeal a final judgment district court to the amended in 2005 apparently LSA R S of the 15 574 11 as
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