Michelle Nicks VS James Leblanc, Secretary, Department of Corrections and Risk Review Panel of State of Louisiana
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 2171 MICHELLE NICKS VERSUS JAMES LEBLANC SECRETARY DEPARTMENT OF CORRECTIONS RISK REVIEW PANEL OF STATE OF LOUISIANA Judgment Rendered May 7 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge In J State of Louisiana Suit Number 565 101 Honorable Kay Bates Judge Michele Nicks In Proper Person Angola LA Plaintiff Appellant William L Kline Counsel for Baton Rouge LA Defendant Appellee Louisiana Department of Public Safety and Corrections HEMME 3 BEFORE CARTER C GUIDRY AND PETTIGREW JJ J According to the record it appears that the proper spelling of Mr Nicks first name is Michele GUIDRY J Michele Nicks an inmate in the custody of the Department of Public Safety and Corrections DPSC and housed at the Louisiana State Penitentiary in Angola Louisiana filed a petition with the Nineteenth Judicial District Court seeking issuance of a writ of mandamus and judicial review of an administrative remedy procedures ARP request against the DPSC and the Louisiana Risk Review Panel wherein he contested the refusal to provide him with a hearing before the Louisiana Risk Review Panel A commissioner assigned by the district court to review the matter recommended that Nicks petition for judicial review be dismissed for failure to state a cause of action In his recommendation the commissioner found in part that there is no authority for this Court to review a recommendation rendered by a risk review panel or that mandamus relief is available to compel a response from a risk review panel Accordingly the commissioner recommended that the district court sua sponte raise the objection of no cause of action and dismiss Nicks petition with prejudice The district court accepted the recommendation and sua sponte peremptorily excepted to Nicks petition on the basis of no cause of action to dismiss the action with prejudice Nicks appealed In his petition Nicks asserted that he was eligible to be allowed a hearing before the Louisiana Risk Review Panel pursuant to La R 15 to seek S 308 application of the more lenient penalty provisions of the amended version of La S 529 R 15 1 habitual offender statute under which he had previously been sentenced Nicks alleged that he applied to the Louisiana Risk Review Panel five times with no response at all Louisiana Revised Statutes 15 provides in pertinent part 308 2 See Corrections Administrative Remedies Procedures Act La R 15 S 11771184 2 B In the interest of fairness in sentencing the legislature hereby further declares that the more lenient penalty provisions provided for in Act No 403 of the 2001 Regular Session of the Legislature and Act No 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes who were convicted or who were sentenced according to the following provisions R 15 1 A S 529 1 iiand c prior b ii to June 15 2001 provided that such application ameliorates the s person circumstances C Such persons shall be entitled to apply to the Louisiana Risk Review Panel pursuant to R 15 Emphasis added S 574 22 Thus in order to be entitled to apply to the Louisiana Risk Review Panel and thus mandamus relief Nicks would have to establish that his application would ameliorate his circumstances Based on the nature of Nicks felony offenses his application would not ameliorate his circumstances In 2001 the Louisiana Legislature amended subparagraphs A iiand b 1 ii c of La R 15 S 529 1which had read respectively ii If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R 14 or as a S 2 13 violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years the person shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence ii If the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime of violence under R 14 S 2 13 or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or of any other crime punishable by imprisonment for more than twelve years the person shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence Emphasis added The amended versions of those subparagraphs now read respectively ii If the third felony and the two prior felonies are felonies defined as a crime of violence under R 14 a sex offense as S 2 B defined in R 15 et seq when the victim is under the age of S 540 eighteen at the time of commission of the offense or as a violation of the Uniform Controlled Dangerous Substances Law punishable by 3 It should be noted that in Weaver v LeBlanc 09 0244 p 5 La App 1st Cir 922 So 09 14 3d 1014 1017 this court held that the only duty that the law clearly states that the Louisiana Risk Review Panel must perform is to review applications and t is no legal authority for here us to compel any other action by it 3 imprisonment for ten years or more or any other crimes punishable by imprisonment for twelve years or more or any combination of such crimes the person shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence ii If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R 14 a sex S 2 B offense as defined in R 15 et seq when the victim is under the S 540 age of eighteen at the time of commission of the offense or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more or any combination of such crimes the person shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence Emphasis added At the time Nicks was adjudicated a habitual offender he was sentenced based on a conviction of second degree battery in violation of La R 14 S 34 1 and three predicate offenses comprised ofterrorizing burglary of a residence and possession of cocaine in violation of La R 14 S 40 1La R 14 62 and La S 2 S 967 R 40 respectively In order for Nicks to be subject to a sentence of life imprisonment as a fourth felony offender under the prior version of La R S ii c A 1 529 15 the State only had to establish that at least one of the felonies for which he was convicted was a crime of violence under R 14 or S 2 13 a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or of any other crime punishable by imprisonment for more than twelve years a much lesser burden of proof Under the amended version of La R 15 1 A the State bears S 529 1 ii c a heavier burden of proof but even under the more restrictive application Nicks would still be subject to the same punishment The amended statute requires that the fourth felony and two of the prior felonies be any of the following a crime of violence under R 14 a sex offense as defined in R 15 et seq when S 2 B S 540 the victim is under the age of eighteen at the time of commission of the offense or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by 1 imprisonment for twelve years or more or any combination of such crimes Nicks fourth felony of second degree battery is defined as a crime of violence under La R 14 and two of the predicate offenses terrorizing and S 2 6 B burglary of a residence are both crimes punishable by imprisonment for twelve years or more See La R 14 and 62 Hence due to the nature of S 40 B 1 2 Nicks felony convictions even under the amended version of La S R iihe c 1 would still be subject to a sentence of life imprisonment A 5291 15 without benefit of parole probation or suspension of sentence Accordingly Nicks application to the Louisiana Risk Review Panel would not ameliorate his circumstances and thus he is not entitled to apply to the Louisiana Risk Review Panel See La R 15 and C S 308 B As such the district court correctly determined that Nicks had no cause for requesting a writ of mandamus Thus we affirm the judgment of the district court All costs of this appeal are assessed to the appellant Michele Nicks AFFIRMED 5
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