Douglas Sneed VS State of Louisiana
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1853 v DOUGLAS SNEED VERSUS STATE OF LOUISIANA 1 7udgment Rendered N J p 7 2013 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No 603 675 Honorable Todd W Hernandez Judge Presiding Douglas C Sneed Winn Correctional Center Appellant Plaintiff In Proper Person Winnfield Louisiana Jonathan R Counsel for Defendant Appellee Baton James M LeBlanc and Vining Rouge Louisiana Department of Public Safety and Corrections BEFORE WHIPPLE C McCLENDON J AND HIGGINBOTHAM J McCLENDON Douglas Sneed an inmate in the custody of the Louisiana Department of Public Safety and Corrections DPSC seeks review of a district court judgment affirming a final agency decision regarding his sentence computation For the reasons that follow we reverse and remand to the district court with instructions FACTS AND PROCEDURAL HISTORY Sneed is currently serving several sentences Sneed was first convicted and sentenced on June 24 2009 to five years for violating LSA 14 S 1 R 95 possession of a firearm by a convicted felon under Vernon Parish docket number 73888 Subsequently on December 22 2009 Sneed was sentenced in Vernon Parish docket number 75787 to 25 years for armed robbery and twenty five years for attempted armed robbery which were to run concurrently He was also sentenced to 5 years for use of a firearm which was to run consecutive to the other two sentences for a total of thirty years Also on December 22 2009 Sneed was sentenced to 5 years for possessing a controlled dangerous substance under docket number 74842 and fifteen years for illegal possession of a firearm under Vernon Parish docket number 75777 These sentences were to run concurrently with the sentence in docket number 75787 so that Sneed would serve a total of thirty years After the DPSC computed the sentences in docket numbers 74842 75777 and 75787 to run consecutive with the sentence in docket number 73888 or five thirty years total Sneed sought administrative review with the DPSC Sneed contended that the sentence in docket number 73888 was to run concurrently with his sentences in 74842 75777 and 75787 such that he should be required to serve a thirty sentence His request was denied in the first and second year steps In denying Sneed request in the second step the DPSC noted that s here is t no transcript attached to your complaint 2 Sneed subsequently filed a petition for judicial review with the district court Attached to his petition for judicial review was a purported transcript from the December 22 2009 hearing in which the trial judge states On the conviction under docket number 74842 five years at hard labor with the Louisiana Department of Public Safety and Corrections with credit for time served since the date of your arrest concurrent with those other sentences I imposing today m and I will impose these sentences concurrent with any other sentence that you may have to serve I don know if you t on if re you going to be revoked on probation or if you serving re another sentence or not but what this means is you going to do re 30 years from today So I running all this concurrent with each m other and any other sentence The matter was initially referred to a Commissioner who issued a report and recommended the petition be dismissed reasoning in part as follows The DPSC is correct that the minutes of the 30 Judiciaf District Court dated June 24 2009 and December 22 2009 clearly show that the Court was silent at sentencing on December 22 2009 as to docket number 73888 and the five year sentence imposed thereunder for attempted possession of a firearm by a convicted felon If the sentencing court intended for the sentence under 75787 to run concurrent with the 73858 sentence previously imposed the Court was required to state that during sentencing in 75787 The Petitioner did not provide any proof in the administrative record to support his claim that the December 2009 court intended that all of his sentences be concurrent including the one under 73888 Thereafter the district court adopting the reasons set forth in the s Commissioner report affirmed the DPSC decision and dismissed Sneed s s petition for judicial review Sneed has sought review with this court contending that the district court erred in affirming the DPSC decision and dismissing his suit s DISCUSSION It is well settled that the determination of the sentence a defendant is to serve and what if any conditions are to be imposed on that sentence is made by the trial judge not the defendanYs custodian The custodian sobligation is to The offices of commissioner of the 19th Judicial District Court were created by LSA 13 S R 711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners LSA 13 The district judge may accept reject or S A R 713 modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions R 713 LSA S 13 C5 3 see that the sentence imposed is the sentence served State ex rel Pierre v Maggio 445 So 425 426 La 1984 2d Sneed contends that the sentencing judge was not silent regarding whether his sentences imposed on December 22 2009 were to run concurrent with his sentence imposed on June 24 2009 In the purported transcript of the December 22 2009 hearing the sentencing judge stated plainly I will impose these sentences concurrent with any other sentence that you may have to serve what this means is you going to do 30 years from today So I running re m all this concurrent with each other and any other sentence Sneed concludes that the sentencing judge intentions reflected in the purported December 22 s 2009 transcript were clear that the prior conviction in docket number 73888 was to run concurrently with the convictions in docket numbers 74842 75777 and 75787 The purported transcript of the December 22 2009 hearing although it was attached to Sneed petition for judicial review was not introduced into s evidence during the course of the DPSC proceedings The district court review s of the DPSC decision is confined to the record LSA 15 The s SA R 1177 5 district court may affirm the decision of the agency or remand the case for further proceedings or order that additional evidence be taken S R LSA 8 A 1177 15 The opportunity for parties to present evidence occurs at the administrative level LightFoot v Stalder 00 La 1 Cir 6 1120 App 01 22 808 So 710 715 writ denied O1 La 8 823 So 957 If the 2d 2295 02 30 2d court decides that additional evidence must be taken such shall be accomplished upon conditions determined by the court LSA 15 A district SA R 1177 4 court exceeds its authority under the Corrections Administrative Procedure Act by expanding the record and allowing evidence to be introduced at the district court level Curry v Cain 05 La 1 Cir 10 944 So 635 639 2251 App 06 6 2d In the interest of justice and in accordance with LSA 15 SA R 1177 8 we thus remand this matter to the district court to order that additional evidence including but not limited to the actual transcript of the December 22 4 2009 hearing be taken and considered by the DPSC If Sneed is not satisfied with the DPSC response he may again seek judicial review s CONCLUSION The district court judgment affirming the DPSC decision and dismissing s s s Sneed suit with prejudice is reversed This matter is remanded to the district court with instructions to remand the case for further proceedings in order that additional evidence may be taken in accordance with LSA 15 S A R 1177 8 Costs of this appeal in the amount of 957 are assessed equally between the 50 DPSC and Sneed REVERSED AND REMANDED WITH INSTRUCTIONS 2 Sneed also attempted to introduce a copy of aclarification with the district court sentence However the district court noted that it could not consider same insofar as it was not part of the administrative record 5
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