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
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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
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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
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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
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improper
Mr Black grievance was denied at the first step with the following language
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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
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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
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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
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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
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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
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the commissioner report as its written reasons Mr Black then appealed to this court
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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
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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
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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
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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
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plaintiff Harold Joe Black
AFFIRMED
1 As noted in the commissioner report if Mr Black has concerns that his time under DPSC supervision
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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
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