Harold Joe Black VS H. B. Shaver and Leblanc, Shreveport Probations Officers; James Leblanc, Secretary, Department of Corrections and C. Paul Phelps Correctional Center

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0781 HAROLD JOE BLACK 4 VERSUS DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS ET AL On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 579 Section 26 141 Honorable Kay Bates Judge Presiding Harold Joe Black Plaintiff Appellant Homer LA In Proper Person Jonathan R Vining Attorney for Baton Rouge LA Defendant Appellee James LeBlanc Secretary Department of Public Safety and Corrections BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered October 29 2010 PARRO J Harold Joe Black an inmate in the custody of the Louisiana Department of Public Safety and Corrections DPSC appeals a judgment of the district court affirming s DPSC decision to deny good time eligibility and dismissing his petition for judicial review Based on our review of the record we affirm the judgment BACKGROUND Mr Black was adjudicated a second felony habitual offender under LSAR S 1 529 15 and on August 30 2000 he was sentenced to fifteen years of imprisonment at hard labor as a result of his conviction on the charge of distribution of cocaine a felony violation of the Controlled Dangerous Substances Law At some point Mr Black became aware that he was not accruing good time on his current sentence and he filed a grievance pursuant to the Corrections Administrative Remedy Procedure CARP established by LSAR 15 et seq contending that denial of good time was S 1171 improper Mr Black grievance was denied at the first step with the following language s This is in response to the first step of your ARP where you are requesting your release date be calculated with your being eligible for goodtime sic I have reviewed your time computation court documents contained in the record as well as documents you provided and find that your release dates have been accurately calculated The courts in Caddo Parish provided a copy of the second felony habitual offender bill which indicates you have a prior felony of Distribution of Marijuana In the transcript you provided the Judge made it clear that the offense was well within the 10 year period The fact that you were sentenced as an habitual offender is not something to be challenged with the Department of Corrections as we must follow the order of the courts it is to be challenged with the sentencing courts As a habitual offender with Distribution of Cocaine as your instant offense you are not entitled to earn good time based with either your prior or your instant offense Pursuant to Lonzell Richards v Richard Stalder the use of the instant offense applied to inmates who committed their instant offense on or after 2 therefore either 88 23 charge would deny you good time Relief requested is denied Mr Black was not satisfied with this response and proceeded to step two of the CARP procedure however his grievance was denied at that level as well 2 Thereafter Mr Black filed a petition for judicial review with the district court In his petition Mr Black contended that he had been improperly sentenced as a second felony offender because the sentence on his first offense had been amended erroneously This allegedly improper amendment to his sentence had required him to stay under DPSC supervision longer and had prevented the ten year cleansing period provided by LSAR 15 from elapsing S 529 C 1 Specifically Mr Black notes in the petition that his original full term date on his first offense should have been August 12 1987 however he was not released from DPSC supervision until August 12 1988 Because of that oneyear difference he was still within the tenyear period beyond which the previous offense could not be counted for habitual offender purposes when he was arrested for the second felony in January 1998 The matter was assigned to a commissioner who submitted a report to the district court on the merits of the case The commissioner report determined that Mr s s Black arguments were without merit and recommended that his appeal be dismissed at his cost After a thorough de nouo review the district court rendered judgment denying Mr Black claim for good time eligibility dismissing the appeal and adopting s the commissioner report as its written reasons Mr Black then appealed to this court s DISCUSSION The record indicates that Mr Black was arrested in July 1984 on the charge of distribution of marijuana a felony violation of the Controlled Dangerous Substances Law He pled guilty to that offense and was sentenced to three years imprisonment at hard labor with that sentence being suspended Mr Black was then placed on three years of active supervised probation Nevertheless his probation was revoked after a hearing on August 13 1985 and the court ordered that the sentence which was originally imposed be served in this case The record further indicates that Mr Black was subsequently released on parole on August 12 1986 and that he apparently remained in the legal custody and control of the DPSC while on parole until August 12 1988 when the maximum sentence for the marijuana conviction expired 3 After a thorough review of the record it is clear that Mr Black was not released from DPSC supervision on his first offense until August 12 1988 He was subsequently arrested on the current charge of distribution of cocaine on January 14 1998 Based on those dates Mr Black was clearly within the tenyear period within which the previous and current convictions could be used for habitual offender purposes pursuant to LSAR 15 Moreover once Mr Black was sentenced as a second felony S 529 C 1 offender he was not entitled to diminution of sentence or accrual of good time in accordance with LSA R 15 Therefore we conclude that the evidence S 571 s 1 C 3 supports the recommendation of the commissioner and her conclusions of law which were adopted by the district court after a careful de novo review of the entire record Accordingly we affirm the judgment of the district court in accordance with Uniform RulesCourts of Appeal Rule 2 16A All costs of this appeal are assessed to the B plaintiff Harold Joe Black AFFIRMED 1 As noted in the commissioner report if Mr Black has concerns that his time under DPSC supervision s pertaining to his first offense was erroneously extended those concerns are more properly addressed by the sentencing court or the court of appeal having jurisdiction over that sentencing court 4

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