Kip London VS Louisiana Department of Correction
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 1718 i KIP LONDON I VERSUS LOUI5IANA DEPARTMENT OF CORRECTIONS Judgment Rendered N 0 3 2013 r Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 599 361 The Honorable William Morvant Judge Presiding Kip London Winnsboro LA Appellant Plaintiff In Proper Person William L Kline Counsel for DefendanUAppellee Baton James M LeBlanc Rouge LA BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J WHIPPLE C J Petitioner Kip London an inmate in the custody of the Louisiana Department of Public Safety and Corrections DPSC housed at the Franklin Parish Detention Center in Winnsboro Louisiana appeals from a judgment of the district court dismissing without prejudice his claim that the Parole Board violated his due process rights and dismissing with prejudice in accordance with the Commissioner Recommendation his remaining claims raised s through administrative remedy procedure number HDQ Finding no 1850 2009 error we affirm DISCUSSION On September 26 1985 petitioner was sentenced to serve twenty five years for his conviction of an armed robbery Petitioner opted to receive double good time credits in lieu ofincentive wages and executed aGood Time Double Option and Approval Form on December 18 1987 pursuant to LSA S R 14 571 15 On Apri127 1997 petitioner became eligible for Louisiana Revised Statute 15 entitled Increased diminution of sentence far 14 571 good behavior was enacted by Acts 1986 No 299 1 effective August 30 1986 afrer s petitioner sentencing herein and was subsequently repealed by Acts 1991 No 138 3 effective January 31 1992 prior to petitioner eligibility for release by diminution of s sentence Nonetheless the version of LSA 15 in effect at the time petitioner S R 57114 opted for double good time which petitioner cites and relies on herein provided as follows Notwithstanding any other provision of this Part inmates who meet the criteria of this Section shall have the option to receive increased diminution of sentence for good behavior hereinafter referred to as good time in lieu of incentive wages The granting of this option shall be governed by the following provisions 1 The inmate must have been committed to the Department of Public Safety and Conections 2 The inmate must be eligible to receive both good time and incentive wages 3 The option must be exercised at the time the inxnate becomes eligible for incentive wages 4 The option must be approved by the secretary of the Depariment of Public Safety and Corrections or his designated representative 5 Once the option is exercised and approved it shall be irrevocable for the sentence for which the inmate is incazcerated 6 The increased good time shall be eamed at twice the rate otherwise provided in this Part 2 release by diminution of sentence in accordance with LSA 15 S 5and R 571 was released on supervised parole However on June 10 2009 petitioner was anested on a parole violation After pleading guilty and waiving a final parole revocation hearing petitioner sparole was revoked on June 16 2009 On appeal petitioner contends that when he agreed to give up incentive wages to earn double good time he entered into a with the contracY Department He further contends the version of LSA 15 in effect S 14 R 571 at the time he opted far good time did not require that he be placed on parole supervision upon his release nor did it provide for the loss of all good time earned prior to a release on parole supervision Petitioner contends that after fulfilling his obligations under the terms of the contract the defendants then recanted on their part of the agreement by changing the governing statute from R 15 to R 15 Petitioner argues that by illegally S 57L14 S 571 5 changing the controlling statutes he was placed under the provision of parole supervision which was not part of the contract that was sign between ed appellant and defendants Instead petitioner contends that the twelve and one half years he initially served in physical custody allowed him to fully satisfy and complete his twenty year sentence and that he should not have been five placed on supervised parole when he reached his good time release date At the outset we note that the law in effect at the time of an offender s release governs the terms of the offender release rather than that in effect at s the time of the offender commission of the offense or at the time of the s 7 Inmates who receive increased good time under this Section sha11 not receive incentive wages and shall not be deemed indigent as defined by the department To Z the extent that petitioner challenges the district cour dismissal without s prejudice of his claim against the Parole Board we find no error As the district court properly concluded petitioner complaint should be addressed in an action against the s Pazole Board as Louisiana Administrative Code Title 22 Part 1 Secrion 325 b 3 F provides that Parole Board decisions are not reviewable through the Administrative Remedy Procedure 3 s offender entry into the good time credits program Bancroft v Louisiana Deparhnent of Corrections La App l Cir 4635 So 2d 738 741 As 94 8 such LSA 15 which unlike LSA 15 was in effect at S 5 R 571 S R 57L14 the time at the time of petitioner release as well as at the time he opted to s receive double good time credits in lieu of incentive wages required among other things that any person released because of diminution of sentence shall be supervised in the same manner and to the same extent as if he were released on parole LSA 15 SB R 5715 2 As noted by the Commissioner relying on Bancroft fter A July 1 1982 the effective date of R 15 S 571 A 5 offenders who are released pursuant to eamed good time credits are to be released as if on parole While there may have been no mention of the requirement of parole supervision on the s petitioner good time approval form the provision of R S 5 571 15 in effect at the time the approval form was signed required the petitioner be placed on parole supervision when he reached his good time release date he T Bancroft decision additionally found that the law in effect at the time of an s inmate release governs the terms of such a release from physical At 3 the rime of petitioner release Louisiana Revised Statute 15 entitled s 5 571 Superoision upon release afrer diminution of sentence for good behavior conditions of release revocation provided in part as follows A When a prisoner committed to the Department of Public Safety and Conections is released because of diminution of sentence pursuant to this Part he shall be released as if released on parole B 1 Before any prisoner is released on parole upon diminution of sentence he shall be issued a certificate of parole that enumerates the conditions of parole These conditions shall be explained to the prisoner and the prisoner shall agree in writing to such conditions prior to his release on parole 2 The person released because of diminufion of sentence pursuant to this Part shall be supervised in the same manner and to the same extent as if he were released on parole The supervision shall be for the remainder of the original full term of sentence If a person released because of diminution of sentence pursuant to this Part violates a condition imposed by the pazole committee the committee shall proceed in the same manner as it would to revoke parole to determine if the release upon diminution of sentence should be revoked C If such person parole is revoked by the committee board for violation of s the terms of parole the person shall be recommitted to the department for the remainder of the original full term 4 custody The provisions of R 15 applied to this S 571 A 5 s petitioner release and required that he satisfy and complete his sentence by remaining under parole supervision until he reached his full term date Emphasis added Thus to the extent that petitioner argues LSA 15 does not S 5 R 571 apply herein we disagree Alternatively petitioner argues that if LSA 15 does apply S 5 R 571 then he is entitled to credit for time served for good behavior while on parole under the current version of LSA 15 The provision entitling S 5 R 571 C offenders to credit far time served for good behavior on parole was added by Acts 2010 No 792 1 effective August 15 2010 and was not in effect at the time of petitioner parole eligibility or subsequent revocation This Court has s previously determined that the 2010 amendment to LSA 15 is a S5 R 571 C substantive change in the law that cannot be applied retroactively See Rochelle v LeBlanc 2010 La App l Cir 5 65 So 3d 240 243 As such 1901 11 6 petitioner is not entitled to relief under this provision Nonetheless under the applicable version of LSA 15 to S 5 R 571 C the e that petitioner contends that he was in the Department ent scustody while under supervised parole and accordingly that those years spent on the street should count toward or be applied to the remainder of his sentence we note that the purposes of parole and probation are for the rehabilitation of the criminal and are acts of grace to one convicted of a crime Because parole or and probation are less restrictive on the offender freedom than penal s incarceration and are acts of grace to the offender a violation of parole and ar probation has consequences such as no entitlement to credit against the s offender sentence for the time spent on probation or parole See Bancroft v Louisiana Department of Corrections 635 So 2d at 740 citin State v Gordon 214 La 822 38 So 2d 794 795 Manuel v Stalder 2004 La App 796 1920 5 1 Cir 12 928 So 2d 24 26 When an inmate is released on parole OS 22 27 due to diminution of sentence and is subsequently reincarcerated for violating the terms of his parole the person shall be recommitted to the D epartment far the remainder of the original full term LSA 15 Manuel v S 5 R 571 C Stalder 928 So 2d at 26 27 Moreover an offender released under parole supervision due to diminution of sentence and subsequently reincarcerated is not entitled to restoration of good time earned or accumulated prior to his release Manuel v Stalder 928 So 2d at 26 As correctly noted by the Commissioner petitioner is not entitled to any good time earned prior to his release on parole as he utilized his prior good time to obtain his early release With reference to petitioner argument that he entered into a binding s contract with the Department by signing the Double Good Time Option and Approval Form this court has previously held that an offender entry into the s good time credits program is only an option the offender can choose to exercise which can result in his eligibility for early release and is not a contract See Bancroft v Louisiana Department of Corrections 635 So 2d at 741 Petitioner further argues that in any event the penalty portion of his armed robbery sentence precluded him from being subject to parole supervision because the penalty provision of his sentence precluded parole eligibility In urging this argument petitioner ignores the distinction that he was not released by the granting of parole but rather by diminution of sentence with parole conditions See Bancroft v Louisiana Department of Corrections 635 So 2d at 740 On review we note that petitioner spenalty provision only precludes the Parole Board from consideration of early release on parole supervision The without benefit provisions of his sentence do not preclude good time eligibility Specifically LSA 15 provides that an offender S 5 R 571 A 6 released because of diminution of sentence pursuant to earned good time credit is released as if on parole and LSA 15 provides that such an S 5 R 571 2 B offender shall be supervised in the same manner and to the same extent as offenders released pursuant to a decision rendered by the Parole Board Thus s petitioner argument i that the district court decision was enoneous e s because the without benefiY provisions of petitioner ssentence preclude good time eligibility likewise fails CONCLUSION After thorough review of the record in its entirety and considering the relevant 1aw and jurisprudence we find no merit to petitioner assignments of s error Accordingly the June 21 2012 judgment of the district court is hereby affirmed in accordance with Uniform Rules Louisiana Courts of Appeal Rule B 1 16 2 Costs of this appeal are assessed to the petitioner Kip appellant London AFFIRMED 7
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