Deshawn Branch VS Louisiana Department Public Safety & Corrections
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0749 DESHAWN BRANCH p VERSUS Z LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS Judgment Rendered E 2 12 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 594 360 Honorable Todd Hernandez Judge Presiding Deshawn Branch Farmerville LA Appellee Plaintiff In Proper Person Jonathan R Vining Attorneys for Defendant Appellant Debra A Rutledge Baton Rouge LA Louisiana Department of Public Safety and Corrections BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ HIGGINBOTHAM J Deshawn Branch is an inmate in the custody ofthe Louisiana Department of Public Safety and Corrections the Department Branch initially filed this matter in the Nineteenth Judicial District Court seeking judicial review of the s Department denial of his request for administrative relief regarding the calculation of good time credits after his good time parole was revoked Relying on an amendment to La R 15 by 2010 La Acts No 649 S 571 a 1 B 3 effective October 15 2010 Branch sought thirty days credit for every thirty five days actually served on the period of time from his initial arrest for custody possession of cocaine on November 19 1996 to his release on good time parole supervision on May 4 2008 Branch maintained that the Department had improperly computed his good time credits by only allowing the thirty for five thirty rate on the period of time following his return to actual custody when his good time parole was revoked on September 10 2009 At first the action was refened to a commissioner for review pursuant to La S 1188 R 15 who found merit to s Branch claims The district court then conducted a de novo review of the record and adopted the commissioner s An inmate alleging an error in time computation must pursue his claim through a Corrections Administrative Remedy Procedure CARP with appellate review first at the district court and then with this court Owens v Stalder 2006 La App lst Cir 6 965 So 886 1120 07 8 2d 888 n Branch petition for judicial review was styled as a of Habeas Corpus 5 s Writ Louisiana Revised Statute 15 grants authority to the Department to adopt administrative B 1171 remedy procedures in compliance with federal law to receive hear and dispose of all inmate complaints and grievances The statute further provides that such complaints and grievances include actions pertaining to time computations even though urged as a writ of habeas corpus and that such administrative remedy procedures are to provide the exclusive remedy to the inmate for those complaints Owens 965 So at 888 n 2d 4 We note that La R 15 was amended again by 2011 La Acts No 186 S 5713 a 1 B and 2012 La Acts No 110 2 1 however Act 186 is only applicable to those persons sentenced on or after August 15 2011 and Act 110 is only applicable to those persons sentenced on or after August 1 2012 Thus neither of these additional amendments is relevant to this appeal 3 The office of commissioner of the Nineteenth Judicial District Court was created by La R S 711 13 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state inmates Owens 965 So at 888 n 2d 6 The commissioner written s findings and recommendations aze submitted to a district courtjudge who may accept reject or modify them La R 13 S 713 5 C 2 recommendation agreeing with Branch and finding that the only reasonable interpretation of Act 649 was to apply it to all portions of an inmate sentence s even those time periods served before release on good time parole supervision Consequently on February 14 2012 the distr ctourt signed a judgment reversing the Department decision dditionally the dist court ordered the Department s ict to recalculate Branch sentence after crediting him with five additional days of s good time credit for every thirty days served in actual physical custody prior to s Branch release on good time parole The Department filed a suspensive appeal maintaining that the district s court interpretation of Act 649 is manifestly enoneous The Department specifically asserts that any good time earned by Branch prior to his release on good time parole supervision was utilized to gain his release and that once s Branch parole was revoked he was returned to actual custody to serve the remainder of his sentence as of his release date The Department argues that it has consistently considered any remaining sentence balance upon revocation of an sparole to essentially be a new and separate sentence with regard to newly inmate enacted good time provisions On review of the district court judgment in a suit for judicial review s pursuant to CARP La R 15 no deference is owed by the appellate court S 1177 to the factual findings or legal conclusions of the district court just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal Goodin v Secretary Dept of Corrections 2011 La 0673 App 1st Cir 11 79 So3d 1076 1079 Our de novo review of the record 11 9 reveals that the district court enred in its interpretation of La R 15 as it S 571 3 applies to this particular inmate We make this conclusion based on our finding 4 Louisiana Revised Statute 15 A provides that an aggrieved party may appeal a final ll77 10 judgment of the district court to the appropriate court of appeal 3 that in addition to the initial sentence fox possession of cocaine sentenced on July 10 1997 Branch was alsQ serving one consecutive and one concurrent sentence for two counts of battery of a correctional facility officer sentenced on December 10 2002 which is considered a crime of violence and was specifically designated as a crime of violence by the sentencing judge See La R 15 S 571 iii b 1 B 3 and La R 14 See also La R 14 S2 41 B S 34 A 2 The applicable version of La R 15 and 2 as amended and S 5713 1 B reenacted by Act 649 provides in pertinent part B 1 Excegt as provided in Paragraph B of this Section a 2 every inmate in the custody of the department who has been convicted of a felony except an inmate convicted a second time of a crime of violence as defined by R 14 S2 B may earn in lieu of incentive wages a diminution of sentence by good behavior and performance of work or self activities or both to be known as good improvement time The amount of diminution of sentence allo under the ved provisions of this Section shall be at the rate of thirty days far five every thirty days in actual custody b The provisions of Subparagraph a of this Paragraph shall be applicable to persons convicted of offenses on or after January 1 1992 and who are not serving a sentence for the following offenses i ri rii A sex offense as defined in R I5 S 541 A crime of violence as defined in R 14 S2 B Any offense which would constitute a crime of violence as ned de in R 14 or a sex offense as defined in R S 2 B S 541 15 regardless of the date of conviction 2 An inmate convicted a first time of a crime of violence as defined in R 14 shall earn diminution of sentence at a rate of three S 2 B days for every seventeen days in actual custody including time spent in custody with good behavior prior to sentence for which defendant is given credit as authorized by Code of Criminal Procedure Article 880 Emphasis added The record on appeal shows that Branch was convicted of possession of cocaine for an offense he committed on November 19 1996 and that while serving 5 Louisiana Revised Statute B 142 provides in pertinent part In this Code he t following enumerated offenses are included as of violence 41 Battery of a police officer crimes And in the statute covering the offense of battery of a police officer a officer includes police correctionai officers See La R 1434 Further La R 14 provides that S2 A S 345 2 B the sentence sha11 be consecutive to any ot sentence imposed her 4 the sentence on that particular conviction he was convicted and sentenced on two counts of a crime of violence for battery of a correctional officer Therefore pursuant to clear exclusions in the applicable diminution good for sentence of behavior statute B was ineligible to rthe good time rate of thirty anch ceive five days for every thirty days in actuai custody VVe conclude that the district court s reversal of the Department adxninistrative decision constituted legal error s because it does not comply with the statutory provisions of 2010 La Acts No 649 and therefore must be reversed DECREE For these reasons the February 14 2012 judgment of the district court is hereby reversed Additionally we order that this matter be remanded to the Department to amend the records of Deshawn Branch including his master prison record to accurately reflect good Yime earned and the farfeiture of diminution of or sentence if any in accordance with the applicable versions of La R S a 1 B 5713 15 Tota1 costs of this appeal are assessed to Deshawn Branch REVERSED AND REMANDED 6 It is well settled that the matter of geod rime credits are dizected to the DepartmenY exclusively State v Coleman 2009 La App lst Cir 2 35 So3d 1096 1099 writ denied 1388 10 12 0894 2010 La 4 62 So 103 Therefore this court declines to calculate Branch ll 29 3d s good time credits or a release date 5
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