David Hamilton VS Department of Corrections and Venetia Michaels, Warden, Forcht Wade Correctional Center
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1956 DAVID HAMILTON VERSUS DEPARTMENT OF CORRECTIONS VENETIA MICHAELS WARDEN Judgment Rendered June 11 2010 Appealed from the Nineteenth Judicial District Court J p In and for the Parish of East Baton Rouge State of Louisiana Suit Number 559 594 Honorable Todd Hernandez Judge David Hamilton Keithville LA In Proper Person Plaintiff Appellant Susan Wall Griffin Counsel for Baton Rouge LA Defendant Appellee Louisiana Department of Public Safety and Corrections BEFORE CARTER C GUIDRY AND PETTIGREW JJ J GUIDRY J David Hamilton an inmate in the custody of the Department of Public Safety and Corrections DPSC and housed at the Forcht Wade Correctional Center in Keithville Louisiana filed an administrative remedy procedures ARP request pursuant to the Corrections Administrative Remedies Procedures Act La R S 11771184 contesting his classification as an habitual offender and the 15 resulting ineligibility to earn good time credits for diminution of his sentence After exhausting the administrative remedies provided Hamilton sought review of the denial of his ARP in the Nineteenth Judicial District Court Based on the limited evidence presented by Hamilton in support of his petition for judicial review a commissioner assigned by the district court to review the matter recommended that Hamilton petition for judicial review be dismissed because the s record before the commissioner contained some evidence that supported the s DPSC denial of Hamilton ARP request s The commissioner further recommended that Hamilton petition be dismissed without prejudice in order to s allow him an opportunity to provide the DPSC with the necessary documentation to support his contention that his Habitual Offender adjudication was entirely reversed and vacated The district court rendered judgment in conformity with the recommendation of the commissioner which Hamilton now appeals Judicial review of the decision of the DPSC is provided for in La R S 1177 15 Paragraph 5 of Subsection A of that statute confines the district s court review to the record and limits it to the issues presented in the petition for review and the administrative remedy request filed at the agency level McDowell v Taylor 99 1587 p 4 La App 1st Cir 6 762 So 2d 1149 1151 The 00 23 district court may affirm the decision of the agency remand the case for further proceedings or order that additional evidence be taken La R 15 S 1177 8 A The court may reverse or modify the administrative decision only if substantial 2 rights of the appellant have been prejudiced because the administrative findings inferences conclusions or decisions 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 or capricious or characterized by 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 15 S 1177 9 A On review of the district court judgment under La R 15 no s S 1177 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 Williams v Creed 07 0614 p 4 La App 1st Cir 12 978 So 2d 419 422 07 21 writ denied 08 0433 La 10 18 So 3d 111 On reviewing the applicable 09 2 law we find no error in the district court judgment s In 1984 a jury found Hamilton guilty of the crimes of aggravated burglary and aggravated battery Following his conviction on the aggravated crimes Hamilton was subsequently adjudicated a third felony habitual offender and sentenced to consecutive terms of imprisonment of 45 years and 10 years on the aggravated burglary and aggravated battery counts respectively Hamilton twice appealed his sentences and was granted some relief on appeal wherein lies the problem with resolution of Hamilton sARP request A copy of the opinion from s Hamilton second appeal wherein the Second Circuit Court of Appeal found that the trial court erred in adjudicating Hamilton a third felony habitual offender and remanded his case for resentencing is not contained in the administrative record The only indication of what the second circuit decreed regarding Hamilton s habitual offender adjudication comes from the record of the proceedings in the trial court after Hamilton case was remanded for resentencing s c Hamilton contends that those proceedings indicate that his adjudication as a habitual offender and not just as a third felony habitual offender was vacated and as he has not been readjudicated as a habitual offender he is entitled to accrue good time credits in diminution of his sentence The DPSC on the other hand contends that the proceedings indicate that Hamilton third felony habitual s offender adjudication was not simply vacated and reversed but rather it was reduced to an adjudication of a second felony habitual offender As observed by the district court commissioner the record does support this interpretation of s Hamilton resentencing proceedings Moreover as shown in the procedural history of the case of State v Kennerson 961518 La App 3d Cir 5 695 So 2d 1367 such a ruling is 97 7 not out of line with Louisiana jurisprudence Similar to the matter before us in Kennerson the appellate court found that the trial court had erred in adjudicating the defendant a third felony habitual offender observing that the defendant at most was proven to be a second habitual offender and should be resentenced as such Of course the state would have the option of once again attempting to prove that the defendant is a third habitual offender as double jeopardy does not apply to habitual offender adjudications Kennerson 961518 at 18 19 695 So 2d at 1379 On remand the defendant was again adjudicated a third felony habitual offender using the same evidence that the appellate court had previously declared insufficient to support such adjudication Thus the appellate court again vacated and reversed the defendant adjudication and sentence as a third felony habitual s See La R 15 which excludes inmates from earning diminution of their sentence S 571 C 3 when 1 the inmate is convicted of certain crimes such as aggravated battery and aggravated burglary 2 the inmate is adjudicated a habitual offender and 3 the inmate last conviction s was for a crime committed after September 10 1977 We further observe that in his brief to this court Hamilton states foln June 18 1992 relator s third offender status was vacated and reduced to a second felony offender status Emphasis added 4 offender and remanded the case to the trial court for proper proceedings State v Kennerson 97 391 p 11 La App 3d Cir 10 702 So 2d 860 865 writ 97 8 denied 972850 La 3 716 So 2d 884 Finally in a third appeal after the 98 27 second remand for resentencing wherein the state did not attempt to retry the defendant as a third felony habitual offender the defendant alleged that the trial court erred in sentencing him as a second habitual offender without conducting a hearing State v Kennerson 01 1088 p 9 La App 3d Cir 2 817 So 2d 02 6 110 116 The appellate court responded as follows Addressing this allegation this court found another habitual offender hearing was not necessary because in the original appeal Kennerson 695 So 1367 this court found the Defendant had been proven to be 2d a second habitual offender State v Kennerson 97 1682 La App 3 Cir 6715 So 518 98 3 2d As stated earlier in the appeals related to the present case Kennerson 702 So 867 and 702 So 860 this court adopted the 2d 2d conclusions reached by the court in Kennerson 695 So 1367 2d regarding the habitual offender adjudication By this adoption the court in the appeals preceding the present case also found the Defendant was proven to be a second habitual offender and should be resentenced as such Accordingly the trial court in the present case did not err in stating the Defendant was a second habitual offender without conducting another hearing Kennerson 01 1088 at 9 10 817 So 2d at 116 Thus based on this jurisprudence and evidence contained in the record that would support a finding that the second circuit effectively reduced the status of s Hamilton habitual offender adjudication from a third felony to a second felony we affirm the judgment of the district court Costs of this appeal are assessed to the appellant David Hamilton AFFIRMED 5
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