Steven F. McLelland VS Jerry Goodwin, Warden and James M. LeBlanc, Secretary
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l AtOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1716 STEVEN F MCLELLAND VERSUS JERRY GOODWIIV WARDEN AND JAMES M LEBLANC SECRETARY Judgment Rendered APR 2 6 2013 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 599 755 The Honorable R Micnael Caldwell Judge Presiding Steven F McLelland Appellant Plaintiff Homer Louisiana Pro Se Susa Wall Griffin Counsel for Defendant Appellee Louisiana Department of Public Safety and Corrections James M LeBlanc Secretary Baton Rouge Louisiana k A k X I Y X iC BEFORE GUIDRY CRAIN A1 THERIOT JJ 1D 7 yrG L G r THERIOT J Steve McLelland an inmate in the custody of the Louisiana Department of Public Safety and Corrections DPSC appeals the judgment of the Nineteenth Judicia District Court affirming DPSC final s administrative decision denying the relief McLelland requested through an administrative remedy procedure ARP For the following reasons we affirm FACTS AND PROCEDURAL HISTORY On November 19 2002 McLelland was convicted of two counts of aggravated incest and one count of attempted aggravated rape He received fifteen 15 years at hard labor for each count of aggravated incest to run consecutively with each other and twenty 25 years at hard five labor for attempted aggravated rape to run concurrently with sentence for the aggravated incest convictions His total sentence befare any computation for good time credit was thirty 30 years at hard labor On November 22 2010 McLelland filed his first ARP complaining that DPSC had incorrectly computed his good time credit toward his date of release He claimed that under Louisiana Legislative Act 138 he was to receive 30 days credit for every 30 days actually served on his consecutive 15 year sentences thereby requiring him to serve 15 years of his 30 year sentence He claimed that prison staff had advised him originally that he was to serve his 30 year sentence under Act 138 but that afterward he was The Commissioner of the 19 JDC noted in his screening recommendation that all of the parties named by McLelland as defendan sexcept for the Secretary of DPSC should be dismissed since only DPSC is a proper party in actions regarding judicial review of ARPs La R 15 Accordingly the S 1177 b Q A court dismissed with prejudice all the named defendants except for DPSC La R 14 S 78 1 La R 14 27 S 42 A The computation of good time credit is set out in La R 15 which has been amended numerous S 571 3 times since its enactment One of those amendments 199i La Acts Na 138 Act 1 138 effective January 31 1992 provided that prisoners could earn diminution of sentence to be known as good time a the rate of thirty days of good time for each thirty days served in acWal custody A later amendment 1995 La Ac No s 1099 Act 1099 effective January 1 1997 provided that an inmate eonvicted a firs time of a crime of violence could earn diminution of sentence at a rate of hree days for every seventeen days in actual cus The date of ody the commission of the crime controls the computation of the diminution of sentence See State ex re Bickman r Dees 367 So2d 283 287 La 1978 2 advised he would not be released until his concurrent 25 year sentence was served which was subject to the time reduction of Legislative Act 1099 incorporated into La R 15 Act 1099 provides that for any S 574 B 4 conviction of a crime of violence eighty percenf of the sentence must five be served after which the offender can receive a diminution of the remainder of the sentence McLelland conviction of attempted aggravated s rape is a crime of violence enumerated under La R 14 McLelland S 2 B claimed that since the 30 year sentence is longer it is the controlling sentence for his release date In response to the first ARP the prison advised that his 25 year sentence is in fact the controlling sentence because according to Act 1099 McLelland is required to serve a minimum 21 years whereas for his 30 25 year sentence he is only required to serve 15 years since aggravated incest is not a crime of violence and is controlled by Act 138 DPSC concurred in the denial when McLelland filed his second ARP McLelland subsequently filed a petition for judicial review of the rulings on his ARP with the 19 JDC The court adopted the commissioner srecommendation reiterating the same reasons DPSC had given in its denial and affirmed DPSC s decision McLelland then timely filed this appeal STANDARD OF REVIEW Inmates aggrieved by a decision rendered by DPSC may seek judicial review pursuant to La R 15 The standard of review is set forth in S 1177 La R 15 as follows S 1177 9 A The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings inferences conclusions or decisions are a n violation of constitutional or statutory provisions b In excess of the statutory authority of the agency c Made upon unlawful procedure 3 d Affected by other error of law e ArbiCrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion fl Manifestly erroneous in view of the reliable probative and substantial evidence on the whole record In the application of the rule where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not due regard shall be given to the agency determination of s credibility issues Victorian v Stalder 1999 p 5 La App 1 Cir 7 770 2260 6 00 14 2d So 382 384 385 DISCUSSION Louisiana Revised Statutes 15 effective January 1 1997 B 4 574 requires inmates convicted of a crime of violence on or after the effective date to serve 85 of their sentence prior to being deemed parole eligible Holmes v Louisiana Dept of Public Safety and Corrections 2011 p 2221 3 2 La App 1 Cir 6 93 So3d 761 763 writ denied 2012 12 8 1788 La 12 14 104 3d So 436 The statute provides that a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least eighty percent of the sentence imposed Emphasis five added Although McLelland could be parole eligible for his aggravated incest sentences after 15 years he is still required to serve 21 years for 25 his attempted aggravated rape charge before becoming parole eligible While McLelland counts two consecutive 15 year sentences as a 30 year sentence he also received a 25 year sentence for a crime of violence Mr McLelland must serve at least 85 of the sentence for attempted aggravated rape therefore that sentence controls his release date Under La R 15 every inmate in the custody of S 571 a 1 B 3 DPSC who has been convicted of a felony and sentenced to a number of years or months may earn a diminution of sentence by good behavior 4 McLelland received two consecutive sentences of 15 years for crimes that are not defined as S crimes of violence under La R B 2 14 However S 4 R 574 La 14 makes it mandatory that McLelland serve 85 of his l B sentence for attempted aggravated rape which is a crime of violence the minimum time of imprisonment being 21 years served concurrently with 25 the sentences for aggravated Thus the shortest amount of time incest McLelland would physically serve in prison is 21 years 25 CONCLUSION The computation of McLelland release date as interpreted by the s prison DPSC and the 19 JDC is correct McLelland cannot be released on parole pursuant to La R 15 until he can be released pursuant to S 571 A 3 La R 574 S 4 1 B DECREE The ruling of the 19 JDC affirming DPSC decision to deny s s McLelland ARP is affirmed All costs in this appeal are assessed to the appellant Steven McLelland AFFIRMED 5
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