Albert Lewis VS Louisiana State Penitentiary, Department of Corrections, Richard Stalder, Secretary and Burl Cain, Warden
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1826 ALBERT LEWIS VERSUS LOUISIANA STATE PENITENTIARY DEPARTMENT OF RRECTIONS RICHARD STALDER SECRETARY AND BURL CAIN WARDEN Judgment Rendered May 7 2010 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 560 Section 25 518 The Honorable Wilson Fields Judge Presiding John M Smart Jr Commissioner Albert Lewis Angola Louisiana PlaintiffAppellant In Proper Person Terri L Cannon Counsel for DefendantAppellee Baton Rouge Louisiana Department of Public Safety and Corrections and Richard Stalder Secretary x9 aY ar BEFORE DQ GAIDRY AND McCLE DON J GAIDRY J SUMMARY DISPOSITION Albert Lewis a prisoner in the custody of the Louisiana Department of Public Safety and Corrections the Department appeals a judgment dismissing his petition for judicial review of a final agency decision under the Corrections Administrative Remedy Procedure Act La R 15 et S 1171 seq Plaintiff is serving a life sentence for the offense of second degree murder committed on July 30 1976 As part of his sentence he was declared ineligible for parole for 40 years Plaintiff contends that the Department has failed to correct his master prison record to reflect that he is eligible for parole after he has served 40 years of his sentence and that he should accordingly be allowed to seek parole consideration before the Louisiana Parole Board upon serving 40 years The action was initially referred to a commissioner for review and screening pursuant to La R S 1178 15 The commissioner recommended that the suit be dismissed with prejudice Following its de novo review of the record the trial court adopted the commissioner srecommendation and dismissed plaintiff action We s affirm The basis of the trial court judgment was the fact that plaintiffs life s sentence has not been commuted to a fixed number of years as required by La R 15 in order for plaintiff to be eligible for parole S 574 B 4 consideration It is well established that parole eligibility and eligibility for parole consideration are distinct and different matters Bosworth v Whitley 627 So 629 634 35 La 1993 See also Richardson v La Dep 2d tofPub Safety Corr 627 So 635 637 La 1993 and Schouest v La State 2d Parole Bd 080962 p 1 La App 1st Cir 12 2008 WL 5377800 08 23 unpublished opinion writ denied 09 0662 La 125 So 143 10 22 3d 2 Finding that the commissioner sreport and the trial court sjudgment adequately explain our decision we affirm the judgment of the trial court DECREE We accordingly affirm the judgment of the trial court through this summary disposition in accordance with Rules 2 16 4 5 6 A 2 7 8 and 10 of the Uniform Rules of the Louisiana Courts of Appeal All costs of this appeal are assessed to the plaintiff appellant Albert Lewis AFFIRMED 3 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1826 ALBERT LEWIS VERSUS LOUISIANA STATE PENITENTIARY DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS RICHARD STALDER SECRETARY AND BURL CAIN WARDEN DOWNING J concurs and assigns reasons fo It is well settled that a plea agreement is considered a contract between the state and the criminal defendant See State v Nall 379 So 2d 731 733 1980 State v Peyrefitte 04 0742 pp 1 3 La04 885 1015 2d So 530 53031 In State v Canada 01 2674 pp 3 4 La 1 App 510 Cir 02 838 So 784 78688 this court explained that contract 2d principles apply to plea bargains The Canada court also explained that nder u the substantive criminal law there are only two alternative remedies available for a breach of a plea agreement 1 specific performance of the agreement or 2 nullification or withdrawal of the plea Citations omitted Canada 01 2674 at p 5 838 So at 788 2d If the defendant had bargained with the state and the trial court accepted the bargain there may be an argument that a contract exists regarding good time that could not be altered by subsequent legislation Even so this concern is not an issue in the matter on appeal before us We therefore do not directly address this issue In this concurring opinion I agree with the majority analysis and s result as applied to the facts presented in the record
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