Hope Weathersby VS Louisiana Department of Safety and Corrections
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NOT FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL G FIRST CIRCUIT 2012 CA 0829 HOPE WEATHERSBY VERSUS LOUISIANA DEPARTMENT OF PUBLIC SAFETY CORRECTIONS JAMES HENRY GOINS LRDC AMES ROGERS LeBLANC WARDEN CHERYL SCHEXNAYDER RECORDS ANALYST LOUISIANA SECRETARY CORRECTIONAL INSTITUTE FaR WOMEN Judgment Rendered pE 2 Z 2012 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No 592 257 Honorable Todd Hernandez Judge Presiding Hope Weathersby Louisiana Correctional Institute Appellant Piaintiff In proper person For Women St Gabriel Louisiana Debra A Baton Rutledge Rouge Counsel for Defendant Appellee Louisiana James M LeBlanc BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM J7 cL lA CS McCLENDON J Hope Weathersby an inmate in the custody of the Department of Public Safety and Corrections DPSC seeks review of a judgment of the Nineteenth Judicial District Court 19th JDC that dismissed her petition for judicial review and affirmed the final agency decision in this matter For the reasons that follow we reverse FACTS AND PROCEDURAL HISTORY In 2003 Weathersby was convicted of issuing worthless checks efferson Parish docket number 026165 and for bank fraud Jefferson Parish docket number 026970 and was placed on probation for five years In 2006 she was arrested on two new felonies Jefferson Parish docket numbers 030677 and 034929 and a probation hold was placed on her on August 7 2006 She was also later arrested on a third felony charge Jefferson Parish docket number 066004 Weathersby was sentenced to eight years at hard labor on each of the three felony charges in docket numbers 030677 034929 and 066004 with the three sentences to run concurrently At a subsequent parole revocation hearing in docket numbers 026165 and 026970 she was sentenced to five years with those sentences to run concurrently with each other but to run consecutively with the sentence on the other three felonies With regard to these two docket numbers 026165 and 026970 the court ordered that credit be awarded for time served DPSC ultimately awarded Weathersby jail credit for time served under Jefferson Parish Docket No 026970 but did not calculate the time as jail credit in docket number 026165 instead crediting the time as awarded credits Weathersby asserting among other things that DPSC failed to properly calculate her pre jail credits in docket numbers 026165 and 02697Q sentence 1 These three docket numbers included charges of bank fraud issuing worthless checks and theft Z The record indicates that the credit to be awarded was 684 days 2 filed a request for administrative remedy in accordance with the Corrections Administrative Remedy Procedure CARP established by LSA 15 et S R 1171 seq Weathersby srequest for an administrative remedy was denied at the first and second step Weathersby subsequently filed a petition for judicial review in the 19th JDC pursuant to S R LSA A 1177 15 In accordance with the screening provisions of LSA 15 Weathersby petition was assigned to a S R 1178 s commissioner at the 19 JDC to be reviewed The commissioner screening s report which was signed on November 21 2011 indicated that there was no error in the DPSC credit calculations In his report the commissioner in finding s no error in the DPSC calculation indicated s The December 30 2010 time computation and jail credit sheet indicates the DPSC declined to award 684 days of credit for time served prior to revocation as credit for time served under Jefferson Parish Docket No 026165 but did credit the time at issue as awarded time credits The DPSC correctly notes that offenders are not entitled to overlapping jail credits on consecutive sentences However where a sentencing court specifies that an offender is to receive credit for time served on a consecutive sentence the time is credited as awarded credits to denote the time was awarded by the sentencing Court In this matter the DPSC has properly calculated the petitioner time served prior to s revocation as awarded credit on Jefferson Parish Docket No 026165 As for the petitioner other revocation term under the s Jefferson Parish Docket No 026970 the Department has not run that term consecutive to the sentences imposed on May 9 2008 Furthermore the Department has given the petitioner 684 days of awarded credit under Jefferson Parish Docket No 026970 The commissioner recommended that the administrative decision be affirmed and that the request for judicial review be dismissed with prejudice Based on the commissioner recommendation the 19 JDC judge signed a judgment s affirming the administrative decision and dismissing Weathersby petition for s judicial review with prejudice Weathersby has appealed seeking review of the district court sjudgment We note that the commissioner refers to consecutive sentences and it is unclear what sentences the commissioner is referring to but the sentences in 026165 and 026970 were ordered to run concurrently 3 DYSCUSSY Weathersby contends that she is entitled to jail credit under both Jefferson Parish Docket Nos Q26165 and 026970 for time served after the probation hold was placed on her on August 7 2006 Weathersby asserts that the sentencing court intended that she receive credit for time served under both Jefferson Parish docket numbers as jail credits Specifically she references the following exchange between counsel and the court when it sentenced her in connection with docket numbers 026165 and 026970 Counsel But I would also ask the Court to recognize that over the past I believe two years she has served in the State correctionat s system and she served that time because of the probation hold that has been on her in this division THE COURT And I will certainly order that she get credit for that time against the five years that I had originally given her THE COURT m I going to order as the last sentencing judge that it run consecutive to the sentence she received in the other division which is my understanding was eight years I going to give her m credit for time served on this charge on these five years I going m to give her credit for time served against that understanding that s she been held on a probation hold So it will reduce the five years that I gave her by the amount of time she been s incarcerated and I so order okay Thank you She gets five years of total incarceration If it is two counts they run concurrent with each other but it runs consecutive to the eight years that she received in Judge McCabe court Emphasis s supplied Weathersby concludes that she is entitled to jail credits in both docket numbers 026165 and 026970 in accordance with the sentencing court ruling s 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 are made by the trial judge not the defendanYs custodian The custodian obligation is to s see that the sentence imposed is the sentence served Pierre v Maggio 445 4 2d So 425 426 La 1984 Thus the DPSC is charged with the responsibility of complying with any conditions placed on a sentence by the trial judge In Williams v Cooper 05 La 1 Cir 10 945 So 48 2360 App 06 6 2d the trial court sentenced a defendant to serve consecutive sentences for armed robbery and attempted armed robbery Specifically the trial court indicated that Said sentences to run consecutive to each other less credit for time served and a minute entry indicated that the court imposed both sentences with credit for time served Williams 945 So at 51 2d Williams filed for a remedy under CARP asserting that the DPSC had not given him credit for time served on both of his convictions Following his denial in the first and second step he filed a petition for review with the 19 JDC which denied relief On appeal this court indicated that the trial court intended that Williams receive served on both sentences s court judgment and Id credit for time Accordingly this court reversed the district remanded the matter to the trial court to compute Williams armed robbery and attempted armed robbery sentence with credit for time served Id While we note that Williams is distinguishable insofar as it involved consecutive sentences it is nevertheless instructive Further in this case the sentencing court although it ordered the sentences in docket numbers 026165 and 026970 be served consecutively with the other three felony convictions clearly indicated that Weathersby be given a for day jail credit for time served for the concurrent sentences in docket numbers 026165 and 026970 Accordingly the ruling of the district court is reversed and the DPSC is ordered to compute Weathersby sentence in s Jefferson Parish docket numbers 026165 and 026970 with credit for time served as jail credit Cost of this appeal in the amount of 1 are assessed to 00 347 DPSC REVERSED 4 To apply the jail credit to only one of the five year concurrent sentences without an equal application to the other five year sentence would essentially negate the effect of the credit awarded by the sentencing court 5
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