Garry Neil Prater VS C. A. Lowe, Jr. and Lee Hubbard (2010CA0944 Consolidated With 2010CA0945)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0944 GARRY NEIL PRATER VERSUS A C LOWE JR AND LEE HUBBARD CONSOLIDATED WITH NUMBER 2010 CA 0945 GARRY NEIL PRATER VERSUS SUPERVISOR SANDRA ORTEGO AND PAROLE OFFICER LEE HUBBARD Judgment Rendered December 22 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 575 c 577 517 w 340 Honorable Wilson Fields Judge EWWWX3KX3 Garry Neil Prater In Proper Person Appellant Pineville LA Plaintiff James D Buddy Caldwell Attorney General Stacey Johnson Asst Attorney General Baton Rouge LA Attorneys for Defendants Appellees A C Lowe Jr Sandra Ortego Lee Hubbard and Department of Public Safety Corrections Board of Parole BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Gary Neil Prater an inmate appeals a judgment of the district court affirming a decision of the Louisiana Department of Public Safety and Corrections Board of Parole Parole Board to revoke his parole We affirm BACKGROUND While on parole supervision on July 5 2008 Prater was arrested by the DeRidder Police Department and charged with driving without a license not wearing a seatbelt possession of an alcoholic beverage in a vehicle resisting and battery of a police officer possession of marijuana and possession of drug paraphernalia Prater was booked into the Beauregard Parish jail on July 7 2008 Parole revocation proceedings were initiated Prater deferred his right to a preliminary hearing before a hearing officer and agreed to postpone his final parole revocation hearing before the Parole Board until the charges had been disposed of On July 18 2008 the Parole Board ordered that Prater be returned to custody On November 5 2008 Prater entered into a plea agreement with the State of Louisiana in which he entered guilty pleas to the charges of driving without a valid license battery of a police officer and possession of marijuana For those crimes the court sentenced Prater to 180 days in the Beauregard Parish jail and suspended 150 days of the sentence with credit for time served On December 17 2008 Prater wrote a letter to the Parole Board claiming to be a first technical violator entitled to a sentence of ninety days for violating the conditions of his parole He asked the Parole Board to give him credit for time served because he had been in jail for almost six months In a Bill of Particulars Prater was charged with violating Condition 8 of his parole by engaging in the following criminal activity possession of marijuana in I The record reflects that Prater was paroled on April 26 2006 for the offenses of distribution of cocaine and marijuana Oa the 3 offense battery on a police officer resisting an officer possession of drug rd paraphernalia open alcohol container in vehicle no driver license and no seat s belt Prater was also charged with violating Condition 15 of his parole which required that he pay parole supervision fees or alternatively work 20 hours of community service in that the last payment on this account was October 1 2007 and Prater was in arrears on the account in the amount of 954 On December 00 23 2008 Prater waived his right to a preliminary hearing and pled guilty to all violations On January 21 2009 a hearing was held before the Parole Board at which time the violations set forth in the Bill of Particulars were read and Prater again pled guilty to violating the conditions of his parole as outlined in the Bill of Particulars Prater also acknowledged that his signature appeared on the document in which he pled guilty to all charges and waived his right to a preliminary hearing Prater was given an opportunity to speak on his behalf at which time he denied the validity of the marijuana conviction claiming that the drugs were not his but acknowledged that he pled guilty to possession of marijuana in criminal court At the conclusion of the hearing the board members voted unanimously to revoke s Prater parole On February 19 2009 Prater filed a petition seeking judicial review of the Parole Board revocation decision naming as defendant C Lowe Jr the s A chairman of the Parole Board and his parole officer Lee Hubbard In the petition Prater asserted that he was entitled to receive a ninetyday technical violation sentence rather than a revocation of his parole because the criminal activity he pled guilty to constituted his first technical violation of his parole He noted in the petition however that he had been reprimanded in 2007 for a drug paraphernalia charge On April 13 2009 Prater filed a second petition for judicial review naming 3 as defendants Hubbard and parole supervisor Sandra Ortego Prater alleged that Ortego and Hubbard showed favoritism to other parolees charged with drug possession by allowing them to bond out of jail and that such favoritism violated his right to due process He claimed to have evidence showing that Hubbard gave certain parolees ninetyday sentences for drug charges which Prater insisted constituted malfeasance in office In opposition to the petitions for judicial review defendants urged that the court did not have subject matter jurisdiction over the claims asserted by Prater because Prater did not allege due process violations in the revocation process Defendants asked that the petitions be dismissed on that basis On June 23 2009 the district court granted a motion to consolidate the two petitions for judicial review After reviewing the parole revocation record including the audio recording of Prater final revocation hearing a commissioner s for the district court recommended that the petitions for judicial review be dismissed In so doing the commissioner stressed that at the revocation hearing Prater pled guilty to violations of conditions of parole by engaging in criminal conduct and failing to pay supervision fees Additionally the commissioner found that because Prater pled guilty of a violation of Title 40 for possession of marijuana he was not eligible for a ninetyday revocation sentence for technical violators provided for in La R 15 S 574 G 9 The commissioner ultimately found that Prater failed to show a violation of his due process rights in the revocation process or that the Parole Board decision to revoke his release on s parole was an abuse of discretion or that the Parole Board was required to impose a ninetyday revocation term under La R 15 S 574 9 Adopting the commissioner reasons as its own the district court entered s judgment affirming the Parole Board revocation decision s Prater appealed urging four assignments of error in which he claims that 1 his parole officer 11 committed malfeasance in office by letting other parolees with drug offenses out on bond and giving them ninetyday sentences 2 his due process rights were violated when his petitions for judicial review were consolidated on June 23 2009 with favoritism and discrimination 3 defendants violated a mandatory statutory provision which violated his constitutional rights as a parolee and 4 he suffered cruel and unusual punishment due to the defendants wrongful allegations and that his punishment is excessive for the crime committed An inmate has a limited right to appeal a decision of the Parole Board revoking his parole A district court is vested with jurisdiction over a revocation decision of the Parole Board where the pleadings allege that the parolee right to a s revocation hearing has been denied or a violation of La R 15 which sets S 574 9 La R S forth certain procedures in parole revocation cases has been violated A 11 574 15 and C Leach v Louisiana Parole Board 20070848 p 7 n 4 La App I Cir 6 991 So 1120 1124 n writs denied 2008 2385 La 08 2d 4 09 12 8 17 So 378 and 20082001 La 12 23 So 947 3d 09 18 3d In his third assignment of error Prater claims that his mandatory statutory rights were violated in connection with the parole revocation determination Apparently this is a continuation of Prater argument that he should have received s a ninetyday sentence as provided for in Subsection G of La R 15 rather S 574 9 than a revocation of his parole for engaging in criminal activity Pursuant to La S 574 R 15 certain offenders are entitled to a ninetyday technical revocation 9 sentence where the parole supervision is revoked for a first technical violation of parole conditions Prater Louisiana is not Revised entitled Statutes to a ninetyday technical iii a 2 G 9 574 15 plainly revocation states sentence that a first technical violation for which the imposition of a ninetyday sentence is authorized in Paragraph G shall not include being arrested charged or convicted 5 of a intentional misdemeanor directly affecting the person ny Prater pled guilty in criminal court and before the Parole Board to the crime of battery of a police officer Battery of a police officer is listed as a crime of violence in the Louisiana Criminal Code La R 14 The crime can be either a felony S 2 41 B or a misdemeanor depending on the circumstances of the offense 14 34 2 La R S Battery by definition is the intentional use of force or violence upon the person of another La R 14 S 33 Battery of a police officer is a non technical violation falling under La R 15 because it is an intentional S 574 iii a 2 G 9 crime directly affecting the person Therefore as Prater is not eligible to receive a ninetyday technical violation sentence the Parole Board could not have violated La R 15 by failing to impose a ninetyday sentence S 574 G 9 In his second assignment of error Prater apparently contends that the district court violated his due process rights by consolidating his petitions for judicial review on June 23 2009 We find no merit in this claim In both petitions Prater attacked the merits of the Parole Board decision to revoke his parole Therefore s we find no error in the consolidation of Prater petitions for judicial review of the s Parole Board decision to revoke his parole s Additionally Prater argues that the defendants discriminated against him in violation of the 14 amendment because they allowed some parolees with drug offenses to have ninetyday sentences but did not afford him the same treatment He also contends that his parole officer committed malfeasance in office for giving parolees ninety day sentences on drug offenses in violation of the probation and parole laws and that the Parole Board revocation of his parole constitutes cruel s 2 By virtue of La Acts 2010 No 510 1 La R 15 which had at the S 574 ii a 2 G 9 time of Prater parole revocation provided that a violation of Title 40 of the Louisiana Revised s Statutes was not a technical violation as used in Subsection G was repealed Louisiana Revised Statutes 15 was not affected by the 2010 legislation Since we have iii a 2 G 9 574 found that Prater was not entitled to ninetyday first technical violation sentence because he pled guilty to a crime falling under La R 15 it is unnecessary to address the S 574 iii a 2 G 9 impact of the repeal La R 15 on the Parole Board revocation decision in this S 574 ii 2 G 9 s case 7 C and unusual punishment Prater has not alleged the revocation proceedings were faulty or that he was denied due process therein Instead Prater remaining assignments attack the s merits of the Parole Board revocation of his parole These allegations are outside s the limited scope of review authorized by La R 15 S 574 11 Moreover the Parole Board is vested with virtually total discretion when rendering a decision to revoke a release on parole Harris v Louisiana Department of Public Safety and Corrections 20082295 p 3 La App 1 Cir 8 St 09 6 15 So 385 3d s unpublished The district court found no abuse of the Parole Board discretion in revoking Prater parole We find no error in this determination s CONCLUSION For the foregoing reasons the judgment appealed from is affirmed costs of this appeal are assessed to appellant Garry Neil Prater AFFIRMED 7 All
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