Alvin Rochelle VS James M. Leblanc, Secretary, Louisiana Department Public Safety & Corrections
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT mij i l NUMBER 2010 CA 1901 Iar ALVIN ROCHELLE VERSUS MES M LEBLANC SECRETARY LOUISIANA DEPARTMENT OF PUBLIC SAFETY CORRECTIONS Judgment Rendered May 6 2011 Appealed from the Nineteenth Judicial District Court In and for the East Baton Rouge State of Louisiana Docket Number 590 569 The Honorable Todd Hernandez Judge Presiding Alvin Rochelle Appellant Plaintiff in Proper Person St Gabriel LA Alvin Rochelle William Kline Counsel for Defendant Appellee Louisiana Department of Corrections Baton Rouge LA BEFORE WHIPPLE McDONALD AND McCLENDON JJ WHIPPLE J This matter is before us on appeal by petitioner Alvin Rochelle an inmate in the custody of the Louisiana Department of Public Safety Corrections DPSC the housed at Hunt Correctional Center in St Gabriel Louisiana from a judgment of the Nineteenth Judicial District Court dismissing with prejudice his petition for judicial review of an adverse decision from the DPSC for failure to state a cause of action For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Petitioner filed an Administrative Remedy Procedure ARP contending that the DPSC unlawfully forfeited his credit for good time while on parole The grievance was assigned ARP No EHCC201097 Therein petitioner contended that because he was technically in the custody of the DPSC while on parole he was entitled to credit for time served for good behavior while on parole even though his parole was eventually revoked Petitioner was denied the relief sought at the first and second levels and on May 12 2010 he filed a petition for judicial review by the Nineteenth Judicial District Court which was assigned number 590569 On May 24 2010 the Commissioner issued a screening report concluding therein that petitioner suit failed to state a cause of action s Specifically the Commissioner noted that in accordance with LSAR 15 petitioner was S 571 5 seeking relief not available under the law i credit for time served while at e liberty under good time parole supervision The Commissioner further relied on At all pertinent times in these proceedings LSAR 15 entitled S 571 5 Supervision upon release after diminution of sentence for good behavior conditions of release revocation provided in part C if such person parole is revoked by the parole board for violation s of the terms of parole the person shall be recommitted to the department for the remainder of the original full term 2 Bancroft v Louisiana Department of Corrections 931135 La App 1 Cir 94 8 4 635 So 2d 738 740 where this court held that parole and probation are acts of grace to the offender and that a violation thereof has consequences such as no entitlement to credit against the offender sentence for time spent on s probation and parole or Accordingly the Commissioner noted although petitioner was correct in his contention that he was still technically in the custody of the DPSC while on parole under Bancroft he was not entitled to credit for the time he was on conditional release Citing Bancroft the Commissioner further observed that LSAR 15 has at all pertinent times herein required S 571 5A that upon revocation the parolee shall serve the remainder of his original sentence due as of the date of release as if on parole On July 19 2010 the district court signed a judgment adopting the s Commissioner report and dismissed petitioner appeal with prejudice without s service on the DPSC and at petitioner costs for failure to state a cause of action s DISCUSSION Although petitioner does not set forth any specific assignments of error he argues in his brief on appeal that since the judgment of the district court was rendered on July 19 2010 finding that his petition failed to state a cause of action the legislature amended and reenacted LSAR 15 effective S 571 C 5 August 15 2010 to provide for the earning of good time credit while on parole even where the parole is revoked for a violation of its terms Petitioner further argues that pursuant to the amendment and reenactment of LSAR 15 S 571 C 5 petitioner was serving his supervised release while being on as if on parole and that his original full term date should not have changed or extended in any way ki Louisiana Revised Statute 15 was amended by Acts 2010 No C 5 571 792 2 1 effective August 15 20 10 to provide as follows C If such person parole is revoked by the parole board for s violation of the terms of parole the person shall be recommitted to the department for the remainder of the original full term subject to credit for time served for good behavior while on parole Emphasis added Nonetheless in order for petitioner to be entitled to the relief sought on appeal this court would be required to conclude the legislature intended for the above amendment to be applied retroactively The legislature is free within constitutional confines to give its enactments retroactive effect Louisiana Revised Statute 1 provides that n 2 o Section of the Revised Statutes is retroactive unless it is expressly so stated However LSAR 1 has been construed as coextensive with LSAC art S 2 C 6 St Paul Fire La 1992 Marine Insurance Company v Smith 609 So 2d 809 816 Louisiana Civil Code article 6 codifies the general rule against retroactive application of legislative enactments St Paul Fire Marine Insurance Company 609 So 2d at 816 and the exceptions jurisprudentially grafted thereupon providing as follows In the absence of contrary legislative expression substantive laws apply prospectively only Procedural and interpretive laws apply both prospectively and retroactively unless there is a legislative expression to the contrary Louisiana 2 Revised Statute 15 entitled Revocation of parole for violation of 9 574 condition board panels return to custody hearing duration of reimprisonment and reparole after revocation credit for time served revocation for a technical violation was also amended by Act 792 to allow credit for time served for good behavior while on parole Louisiana 3 Constitution Article I section 23 prohibits ex post facto laws and laws impairing obligations of contracts Also no law can be retroactively applied so as to divest a party of a vested right as this would violate the due process clause of the state and federal constitutions These constitutional issues however arise only when retroactive effect is Marine Insurance Company v Smith 609 So 2d 809 given to a new law St Paul Fire 816 n 11 La 1992 M In determining whether a newly enacted provision is to be applied prospectively only or may also be retroactive LSAC art 6 requires a two C fold inquiry First the court must determine whether the amendment to the statute expresses legislative intent application Keith v U Fidelity S 694 So 2d 180 183 regarding retroactive Guaranty Com an or prospective 962075 La 5 97 9 Second if no such intent is expressed the court must determine whether the amendment is substantive procedural or interpretive Keith v U Fidelity S Guaranty Company 694 So 2d at 183 In the instant case Act 792 does not expressly provide for retroactive application nor has the legislature expressly declared the Act to be interpretive or provided for an effective date that would be indicative of retroactive application of the amendments Therefore this court must determine and classify the enactment as either substantive procedural or interpretive Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws Keith v U Fidelity S Guaranty Company 694 So 2d at 183 Substantive laws either establish new rules rights and duties or change existing ones Interpretive laws on the other hand do not create new rules but merely establish the meaning that the interpretive statute had from the time of its initial enactment It is the original statute not the interpretive one that establishes the rights and duties 817 St Paul Fire Marine Insurance Company 609 So 2d at When an existing law is not clear a subsequent statute clarifying or explaining the law may be regarded as interpretive and the interpretive statute may be given retroactive effect because it does not change but merely clarifies pre existing law St Paul Fire Marine Insurance Company 609 So 2d at Jwj E M As noted by the Supreme Court the suggested distinction between interpretive legislation clarifying and substantive legislation amending or changing existing law is an obscure one Landry v Baton Rouge Police Department 20082289 La App lst Cir 5 17 So 3d 991 997 There is 09 8 no bright line between substantive laws which change existing standards and interpretive laws which change existing standards by redefining and returning to their ostensible original meaning St Paul Fire Marine Insurance Company 609 So 2d at 819 As pointed out by petitioner prior to the amendment noted above LSA S 571 R 15 did not provide that an offender would receive credit for time C 5 served for good behavior while on parole when his parole was subsequently revoked for violations thereof In fact until the 2010 amendment of LSAR S C 5 571 15 there was no such entitlement to credit against the offender s sentence for time spent on probation and parole or See Bancroft v Louisiana Department of Corrections 635 So 2d at 740 Thus the amendment is clearly substantive in that it represents a distinct change in the rights and obligations of the parties by allowing credit for good time spent while on parole where no right had previously existed See Landry v Baton Rouge Police Department 17 So 3d at 998 Because a substantive change in the law cannot be applied retroactively petitioner is not entitled to the relief he seeks on appeal See LSAC art 6 and LSAR 1 Thus we find no merit to his arguments on C S 2 appeal Moreover to the extent that petitioner purports to assert any constitutional challenges by his argument in brief that LSAR 15 S 571 C 5 impairs his vested rights we note that this court has previously upheld the constitutionality and applicability of LSA R S 5 571 15 under similar st 00 12 challenges See Frederick v Ie oub 990616 La App 1 Cir 5 762 lei So 2d 144 writ denied 20001811 La 4 789 So 2d 581 and 01 12 st 04 25 Ferrington v Louisiana Board of Parole 2003 2093 La App 1 Cir 6 886 So 2d 455 writ denied 20042555 La 6 904 So 2d 741 05 24 Accordingly on review herein we find no error in the judgment of the district court dismissing his Rochelle for judicial review s CONCLUSION For the above and foregoing reasons the July 19 2010 judgment of the district court adopting the Commissioner report is hereby affirmed Costs of s this appeal are assessed to the petitioner Alvin Rochelle AFFIRMED VA
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