Royal Stevens VS Louisiana Department of Corrections
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 7 NUMBER 2010 CA 0489 ROYAL STEVENS VERSUS LOUISIANA DEPARTMENT OF CORRECTIONS Judgment Rendered October 29 2010 Appealed from the Nineteenth District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 576 669 Honorable Todd Hernandez Judge Royal Stevens Angola LA In Proper Person Plaintiff Appellant Debra A Rutledge Baton Rouge LA Attorney for Defendant Appellee Louisiana Department of Corrections Public Safety BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Royal Stevens an inmate in the custody of the Louisiana Department of Public Safety and Corrections the Department appeals a judgment of the district court dismissing his petition for judicial review of Administrative Remedy Procedure No RCC200862 and affirming the Department final decision in the s matter In 1994 Stevens was sentenced to 35 years in prison for four counts of armed robbery In Stevens request for administrative remedy he sought to have the Department restore all of the good time that the Department determined he forfeited for prison rule violations pursuant to La R 15 S 571 4 At the time Stevens was remanded to the custody of the Department the maximum good time penalty that could be imposed for prison rule violations was a prospective inability to earn thirty days of good time In 1995 La R 15 was amended to S 571 B 4 authorize the Department to impose the forfeiture of a maximum of one hundred eighty days of earned good time for certain prison rule violations Essentially Stevens contends that the amended provisions of La R 15 should S 571 B 4 not be applied to him because it violates the ex post facto clauses of the constitutions of Louisiana and the United States The Department denied the relief sought maintaining that Stevens was subject to the forfeiture of good time provisions that were in effect at the time each prison rule violation occurred and that the forfeiture of good time did not violate ex postfacto because good time did not alter the definition of criminal conduct or increase the penalty for a crime but rather only affected an inmate opportunity to take advantage of early release s provisions Stevens then instituted this proceeding seeking judicial review of the s Department decision On September 4 2009 the commissioner assigned to the matter issued a See La Const art I 23 and U Const art I S 2 10 report recommending to the district court that the Department decision be s affirmed and that Stevens petition be dismissed The commissioner noted in her report that the 1995 amendment to La R 15 did not increase the penalty S 571 4 or the prison sentence for the crimes for which Stevens was sentenced in 1994 Stevens was sentenced to 35 years in the custody of the Department for four counts of armed robbery and this sentence has remained the same The further noted that the amendment to La R 15 only affected a prisoner S 571 4 s early release date based on good behavior in prison with early release being a supervised release with conditions for the duration of the sentence Accordingly the commissioner determined that the application of the amended provisions of La S 571 R 15 did not violate the ez post facto clauses of the constitutions of B 4 Louisiana and the United States After considering the entire record of the proceedings on October 19 2009 the district court adopted the commissioner recommendation and rendered s judgment dismissing Stevens petition and affirming the Department decision s After a thorough review of the record of these proceedings we find no error in the judgment of the district court and affirm the district court judgment in s accordance with Uniform RulesCourts of Appeal Rule 2 16 6 7 5 A 2 and 8 Moreover we find the September 4 2009 s commissioner recommendation adopted by the district court in its October 19 2009 judgment 2 Article I 10 of the United States Constitution and Article I 23 of the Louisiana Constitution prohibit applying criminal laws ex postfacto Traditionally Louisiana courts have held that in order for a criminal or penal law to fall within this prohibition the law had to be passed after the date of the offense relate to that offense or its punishment and alter the situation of the accused to his disadvantage State ex rel Olivieri v State 2000 0172 20001767 p 14 La 2 779 So 735 743 744 cert denied 533 U 936 121 S 2566 150 L 01 21 2d S Ct 2d Ed 730 2001 However in Olivieri the supreme court narrowed the focus of ex post facto analyses in Louisiana While the court recognized that in previous ex post facto analysis Louisiana jurisprudence had broadly focused on whether the change in a law operated to the disadvantage of an accused the court adopted the current federal approach to ex post facto analysis which focuses on whether any change in the law altered the definition of criminal conduct or increased the penalty by which the crime was punishable Olivieri 20000172 at pp 14 779 So at 744 16 2d 3 adequately explains discusses and resolves the issues raised by Stevens and therefore we adopt those written reasons and incorporate them into this opinion as Appendix A All costs of this appeal are assessed to the plaintiffappellant Royal Stevens AFFIRMED C NUMBER 576 SECPTON 27 669 ROYAL STEVENS igTH JUDICIAL VERSUS G PMCD DIST PARISH OF EAST BATON ROUGE NOV 2020 STATE OF LOUISIANA ET AL STATE OF LOUISIAN S COMMISSIONER REPORT 10 The Petitioner an inmate in the Department of Public Safety and Corrections filed this appeal of administrative procedure RCCo8 seeking review in accordance with 62 S1 R 15 et seq By it he seeks reversal of the Department authority to forfeit good s time for disciplinary violations if the prisoner was committed to the Department before the 995 1 amendment to R 15 on the basis that the increase in the good time penalty S 57 violates the guarantee against ex post facto law The State filed the entire administrative record of the ARP which has been accepted as Exh A in globo attached to the Defendant Answer Both parties filed argument by s briefs which are in the record for the Court review and convenience s This report is issued on the administrative record alone for the Court de nova s review and final adjudication ANALYSIS OF THE FACTS AND THE LAW Article I 1o of the Constitution prohibits the States from passing any ex post facto Law Prior to 199o the Court analysis of what constituted ex post facto laws s had expanded to include any law that disadvantaged a person However in 199o the Supreme Court decided Collins v Youngbloodi wherein the Court reaffirmed that the Ex Post Facto Clause incorporated a term of art with an established meaning at the time of the framing of the Constitution In accordance with that original understanding the Court once again narrowed the definition holding that the Clause is aimed at laws that either retroactively alter the definition of crimes or increase the punishment for criminal a cts The amendment that is at issue herein is RS 1 4 that authorizes the B 4 57 5 Department to forfeit up to 18o days of good time for certain prison rule violations The Petitioner argues that the application of the 1995 amendment to R 15 increases S 571 4 the punishment for the crimes he originally committed 4 armed robberies and for which he was sentenced to prison for 35 years in 1994 Prior to the 1995 amendment the maximum good time penalty that could be imposed for rule violations was a prospective 497 U 37 110 S 2715 111 L 30 1990 S4 Ct 2d Ed See Collins v Youngblood 497 U 37 41 110 S 2715 111 L 30 1990 See S Ct 2718 2719 2d Ed also California Dept ofCorrections v Morales 514 U 499 S 16oi U 1995 S 115 Ct 1597 S 191h JUDICIAL DISTRICT COUI3 failure to earn 3o days of good time only IN other words earned good time could not be forfeited at all prior to 1995 for rule violations Only the prospective inability to earn it for up to 3o days was the maximum sanction for rule violations The change in the law in 1995 allowed the Department for the first time to forfeit earned good time not deny prospective good time The First Circuit has since held that the Department has no authority to impose the loss of good time that is not yet earned The issue raised in this appeal is whether DPSC can impose a forfeiture of unearned or prospective good time as a sentence in a disciplinary matter Concluding there is no statutory authority for such a forfeiture we reverse the judgment and remand this matter to the DPSC with instructions Considering the holding in Cao above that prohibits prospective losses of good time the Petitioner contention that R 15571 is an ex post facto imposition s S 4 would if adopted apparently prohibit the Department from imposing any loss of good time sanctions for prison rule violations if the prisoner involved also committed his criminal offense prior to 1995 But more importantly the 1995 amendment does not increase the penalty for the crimes for which the Petitioner was sentenced in 1994 and therefore is simply not encompassed in the definition of ex post facto laws The prospective loss or a retrospective loss of good time does not increase the penalty for the crime committed by the offender In fact the earning of distinguished from eligibility to earn good time is at best speculative but the loss of good time never increases one sentence The penaltyin this case 35 years in the Department s s custody remains the same even though one custody status within the Department may s change from physical to constructive the latter including supervised release with conditions for the duration of the sentence based on good behavior Thus good time whether earned or lost does not increase the penalty for the crime To say it another way the sentence imposed in 1994 did not guarantee that the prisoner would actually earn any or all of the good time that he may become eligible forbut only that he would be good time eligible He was on notice from the law and the s Department promulgated rules that he could lose good time for misbehavior While good time eligibility may be a significant consideration to the offender at his plea and in sentencing whether one will actually earn it or lose it once incarcerated does not change the actual sentence that was imposed for the crime n Cao v Stalder 915 Se 851 853 La App Cir 2005 2d 1 4 Cao v Stalder 915 So 851 La App Cir 2005 2d 853 1 2 19th JUDICIAL DISTRICT COURT Under the post1990 interpretation of ex post facto law discussed at length by the Supreme Court in Collins v Youngblood and California Dept of Corrections v Morales the challenged legislation must either change the definition of the crime which it clearly does not in this case or it must increase the penalty attached to crime to violate to the constitution The Petitioner conclusion that the change in R 15 increases his sentence s S 571 4 is faulty and is not line with the cases that he cites in support The Petitioner relies primarily on the holding in Weaver v Graham a notably pre andor Morales Collins decision and one that included a broader definition of ex post facto including any law that disadvantaged the Defendant The Petitioner herein argues that R 15 as S 571 4 amended changed the standard of punishment that was effective when he committed his crime in 1994 Even if Weaver has survived the narrower ex post facto definition in Collins and Morales which is not entirely certain it is distinguishable in that it did not involve a good time statute at all On the contrary the Court found that the new law effected a substantive change in the sentencing formula the court was forced to use to determine the minimum sentencing range for the Defendant crime Thus it effectively s increased the minimum punishment for the crime and violated the constitution The circumstances in the Weaver case differ significantly from the factual or legal situation in this case In this matter the Petitioner sentences of 35 years remain the s same before and after commission of the crime and before and after the law being assailed The speculative loss of good timebased on a prisoner behavior after s sentencing does not in any way increase the original 35 year penalty imposed by the Court The Petitioner does not even allege that he will have to serve more than 35 years In 2001 the Louisiana Supreme Court in State ex rel Olivieri v State 8 adopted the Collins analysis of ex post facto and found that it and the Morales line of jurisprudence made Louisiana jurisprudential interpretation of ex post facto laws no s longer viable 9 After Collins the focus of the ex pastfacto inquiry is not whether a legislative change produces some ambiguous sort of disadvantage nor on whether an amendment affects a prisoner opportunity to take advantage of s provisions for early release but on whether any such change alters the definition of criminal conduct or increases the Denalty by which the crime is punishable s See Collins v Youngblood 497 U 37 110 S 2715 111 L 30 i99o See S 41 Ct 2d Ed also California Dept ofCorrections v Morales 514 U 499 S 16oi U 1995 S 115 Ct 1597 S 6 lot S 96o 1981 Ct 7 See Williams v Creed 978 So 419 La App i Cir and State ex rel Olivieri v 2d 2oo7 21 12 State 779 So 735 2000 0172 La 2 2d 21101 8 State ex rel Olivieri v State 779 SO 735 744 La 2001 2d Sid 33 19th JUDICIAL DISTRICT COURT 3 Therefore we adopt the Collins and Morales line of jurisprudence which significantly narrows the definition of an ex post facto law from the disadvantage line of jurisprudence to whether the change alters the definition of criminal conduct or increases the penalty Emp mine Additionally the ease of Williams v Creed involves an ex post facto analysis wherein a prisoner contended that a change in the law that denied him good time eligibility was ex post facto In denying relief the First Circuit found that since Olivieri good time changes no longer fit the definition of ex post facto because they do not increase the penalty for the crime charged Traditionally Louisiana courts have held that in order for a criminal or penal law to fall within this feX post facto prohibition the law had to be passed after the date of the offense relate to that offense or its punishment and alter the situation of the accused to his disadvantage State ex rel OIivieri v State o0 0172 La 2 oil 779 Se d 745 74 21 1 44 cert denied o U 9j6 121 5 Ct 2s66 15o L 2d 8 Ed 7q0 20011 However the Louisiana Supreme Court narrowed the focus of ex post facto analysis in Louisiana in the Olivieri case While the court recognized that in previous ex postfacto analysis Louisiana jurisprudence had broadly focused on whether the change in a law operated to the disadvantage of an accused the Ol court adopted the current federal approach to ex post facto analysis which focuses on whether any change in the law altered the definition of criminal conduct or increased the penalty by which the crime was punishable Oiivieri 779 So at 743 2d A41 Sta v Smith 794 29 41 4s LaApp 5th Cir s ao oi writ denied m 1921 A 817 59 02 7 6 2d 3 1145 Williams points out that the court did not order that he was to be denied good time on the multiple offender conviction Therefore he contends that his sentence should be computed with tune off for good behavior The statute was amended in 1977 to provide that multiple offenders convicted and sentenced after September 9 1977 shall in no case be entitled to diminution of sentence for good behavior Williams contends that although he was sentenced after September 9 1977 the application of this amendment to him violates the ex post facto clauses Williams also claims the version of the good time statute in effect when the crimes were committed must be applied 4 Noting that the Petitioner argument correctly stated the jurisprudence before s OIivieri the First Circuit stated the following After Olivieri the only relevant issues regarding a legislative change are whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable Olivieri 779 So at 744 2d In other words in a post sentence context once a sentence has been imposed on a defendant any change in the law io State ex rel Oliuieri V State 779 So 735 La 2001 744 798 So 419 1 Cir 2007 2d 12 Emp mine 13 Id at P 423 14 Id at pp 423 424 4 79th JUDICIAL DISTRIC CRT o 2 stoad that later occurs cannot be applied to that defendant to increase that sentence or penalty Anything other than or Iess than this is not protected by the ex postfacto clauses in the United States and Louisiana Constitutions In the matter before us the definition of the criminal conduct committed by Williams was not changed by the amendment to the good time statute that occurred after he committed that crime The only question therefore is whether that change could be applied to Williams in such a way that it increased the penalty by which his crime was punishable The district court imposed on him a sentence or penalty of twentyfive years for the second count the of attempted aggravated rape The court advised that sentence would not be increased After Williams was charged as a multiple offender the original sentence was vacated and a new sentence was imposed That sentence was also twentyfive years There was no increase in the penalty imposed on him Rather the change in the good time statute simply removed the opportunity to take advantage of provisions for early release 16a Having reviewed the cited jurisprudence we note that all the cases cited by Williamsas well as many other cases unequivocally support his argument However none of these cases were decided after the Olivie court narrowed the principles to be used in an ex postfacto analysis 17 In conclusion the First Circuit specifically noted in a footnote that changes in the laws governing possible early release would no longer fit the definition of ex post facto laws FN8 In Olivieri the Louisiana Supreme Court cited Califo Dealt of Corrections u Morales rm U S a4u 5o6 n 14 115 S Ct rFgv 111 L Ed 2d 1 figas in which 88 the United States Supreme Court had stated that the focus of the ex post facto inquiry is not whether a legislative change produces some ambiguous sort of disadvantage nor as the dissent seems to suggest on whether an amendment affects a prisoner opportunity to take s advantage of provisions for early release but on whether any such change alters the definition of crimin conduct or increases the penalty by which the crime is punishable Olivieri 779 2d at 74g emphasis added Thus to the question before the Courtwhether the statute giving authority to forfeit good time instead of denying prospective good time is an ex post facto law the answer must be no because it does not increase the sentence at all Only the early release date may be affected based on the Petitioner behavior record while in prison Therefore s based on the jurisprudence interpreting the constitutional parameters for ex post facto laws a change in prison sanctions involving discipline and behavior of prisoners that does 1s Id Emp mine 1 Id at P 424 1d 17 1e Id 3S 19th JUDICIAL DISTRICT COURT 5 not increase the actual penalty imposed by the trial court does not appear any longer to be subject to a claim of ex post facto violation For reasons stated the Departmenfs decision to deny restoration of all good time the Petitioner has forfeited in disciplinary board hearings while incarcerated should be affirmed as not in violation of the constitution or any of the Petitioners statutory rights MO therefore after careful consideration of the administrative record together with the memoranda filed and the law applicable for reasons stated it is the recommendation of this Commissioner that the Department decision be affirmed and the appeal dismissed s with prejudice at the Petitioner costs s Respectfully recommended this I day of September aoog at Baton Rouge Louisiana 6an4l RACHEL P MORGAM COMMISSIONER SECTION A NINETEENTH JUDICIAL DISTRICT COURT I HEREBY CERTIFY THAT ON THIS DAY A COPY OF ORDER y E S MMISSiONER r SMAILED XED TO FILED BH I A PARTIES DO 20 NU SIGNED THIS OF DAY YSl I 4 DY CLERK 09 U COMMISSIONER CT SEC A 4 DEPUTY CLERK OF COURT R 191d 0 3 19th JUDICIAL DISTRICT COURT 6
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