Paul Massey VS Louisiana Department Public Safety & Corrections

Annotate this Case

Download PDF

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISTANA COURT OF APPEAL FIRST CIRCl1IT N0 2013 CA 0241 PAUL MASSEY VERSUS LOUISIANA DEPARTMENT OF PUBLIC SAFEfY CORRECTIONS udgment rendered NOV 0 1 2013 Appealed from the 19 Judicial District Court f in and for the Parish of East Baton Rouge Louisiana Trial Court No 606 221 Honorable William A Morvant Judge OVERTON T HARRINGTON JR ORNEY A7l FOR LA GRETNA APPELLANT PLAINTIFF PAUL MASSEY DEBRA A RUTLEDGE BATON ATTORNEY FOR LA ROUGE APPELLEE DEFENDANT LOUISIANA DEPARTMENT OF PUBLiC SAFEfY AND CORRECTIONS BEFORE PETTIGREW McDONALD AND McCLENDON 7 PEITIGREW J Paul Massey an inmate in the custody f the Department of Public Safety and Corrections DPSC appeals a judgment that affirmed DPSG final decision in an s administrative remedy procedure and dismissed his petition for judicial review of that decision We affirm BACKGROUND According to the record Massey committed the ofFenses of indecent behavior with a juvenile and attempted molestatio of a juvenile on August 9 1994 However he was not convicted until February 7 2007 and was sentenced on March 2 2007 The record reflects that Massey had not previously earned or been credited with any good time At some point after his sentencing Massey began to question the correctness of DPSC s calculation and ultimate denial of his good time diminution of sentence eligibility status Massey filed a request for relief pursuant to La R 15 seeking petition for judicial S 1177 review of the final agency decision rendered under Administrative Remedy Procedure ARP No PCC in which he challenged DPSC denial of his good time 302 2011 s eligibility Massey argued that he was entitled to earn good time based on the law that was in effect when the crime was committed See former La R 15 as amended S 571 3 by 1991 La Acts No 138 1 effeetive January 3i 1992 Act 138 He alleged that to apply a later version of the statute albeit the 6aw in effect when he was convicted and sentenced violates his right against expostfactoapplication of Iaws DPSC reviewed Massey ARP according to the procedures provided by law and s denied his requesC for relief at each step Massey then filed his petition for judicial review 1 The computation of good time credits is set out in La R 15 which has been amended numerous S 571 3 times since its enactment One of those amendments Act 138 provided that prisoners could earn diminution of sentence to be known as good time at a rate of thirty days of good time for each thirty days served in actual custody Z DPSC denial of good time in the instant case was based on 2006 La Acts No 572 s Act 1 572 which amended La R 15 to provide as follows S 571 b 2 B 3 If with a person is convicted of or pleads guilty to S 81 R 14 molestation of a 2 juveniles or S 81 R 14 indecent behavior juvenile and is sentenced to imprisonment for a stated number of years or months the person shall not be eligible for diminution of sentence for good behavior 2 in the Nineteenth 7udicial District Co i9th7DC it was assign to a commissioner for rt d evaluation and to make a recommendation to th dis court judge DPSC filed a t ri response to his petition and attach the rtire ad record The cammissioner tive istr i reviewed the record and det t based ac applicabi2 laiv khe DPSC decision rmine raa should be affirmed and Massey petitiar f cia9 revie should be dismissed On June s arjud nr 1 2012 after a de nouo review of the record and tf commissioner e srecommendation the district court judge signed a judgment incorporating the commissioner s recommendation Massey then appealed to this court presenting the same arguments concerning the unconstitutional expostfactoapplication of the law DISCUSSION Article I 10 of the United States Constitution and Article I 23 of the Louisiana Constitution prohibit applying criminal laws expostfacto As noted by the commissioner in his report to the district court judge this court has previously addressed the analysis to be used when evaluating a claim of an ex post facto violation In Wiiliams v Creed 0614 2007 La App 1 Cir 12 978 So 419 writ denied 2008 La 07 21 2d 0433 09 2 3d 10 18 So 111 W like Massey hereir argued that the law in efFect at the Iliams time of commission of the offense contralled the good time eligibifity on his sentence Williams 2007 at 5 978 So at 423 The Williams court concluded as 0614 6 2d 424 follows Traditionally Louisiana courts have held that in order for a criminal or penal law to fall within this prohibition tne law had to be passed after the date of the offense relate to that offense or its punishment and alter the situation of the accused to his disadvantage State ex rel Olivieri v State 0172 00 La 2 779 So 35 743 cert denied 533 U O1 21 2d 44 S 936 121 S 2566 150 L 730 2001 However the Louisiana Ct 2d Ed Supreme Court narrowed the focus of ex post facto analysis in Louisiana in the Olivieri case While the court recognized that in previous ex post facto analysis Louisiana jurisprudence had broadly focused on whether the change in a law operated to the disadvanta of an accused the e 3 The office of commissioner of the 19th JDC was created by La R 13 to hear and recommend S 711 disposition of criminai and civil procee arising out of the incarceration of state prisoners The iings s commissioner written findings and recommendations are submitted to a district court judge who may accept reject or modify them La R 13J13 SC 5 Although the authoring judge may not agree with the legai analysis of State ex rel Olivieri v State 0172 2000 La 2 779 So 735 cert denied 533 U 936 121 S 2566 15Q LEd 730 OS 21 2d S Ct 2d 2001 he is constrained to follow same 3 Olivieri court adopted the current fed approach to ex post facto rai analysis which focuses on whether any change in the law altered the definition of criminal conduct or increased tne penaity by which the crime was punishable Olivieri 779 So at 743 State v Smith 794 So 2d 44 2d 41 45 La App Sth Cir svrit denr O1 La 817 Ol 30 S ed 1921 6 02 7 2d So 1145 Having reviewed the cited jurisprudence we note that all the cases cited by Williams well as many other cases support his as unequivocally argument However none of these cases were decided after the Olivieri court narrowed the principles to be used in an ex post facto analysis Moreover our research has revealed no reported cases applying the Olivieri ex post facto analysis to the issue before this court namely whether the application of a version of LSA 15 that was S 3 R 571 amended after commission of the offense but before conviction of the offense and which removed the eligibility for early release that was available to the defendant through good time at the time the offense was committed violates the prohibition against a change in the law that increases the penalty by which the crime is punishable Therefore this is a res noua issue for this court Having reviewed the cases cited by Williams as well as many other cases applying an ex post facto analysis to situations involving the numerous amendments to the good time statute we conclude that this line of cases does not comply with the narrower Olivieri criteria After Olivieri the only relevant issues regarding a legislative change are whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable Olivieri 779 In other words in a post context once a sentence sentence has been imposed on a defendant any change in the law that 2d So at 744 later occurs cannot be applied to that defendant to increase that sentence or penalty Anything other than or less than this is not protected by the expostfactoclauses in the United States and Louisiana Constitutions In the matter before us the defin of the criminal conduct tion committed by Williams was not changed by the amendment to the good time statute that occurred after he committed that crime The only question therefore is whei ti change could be applied to Williams in her at such a way that it increased the penalty by which his crime as a multiple offender was punishable The district court imposed on him a sentence or penalty of twenty years forthe second count of attempted aggravated five rape The court advised that pursuant to the plea agreement the sentence would not be increased even if the state filed a multiple offender charge against Williams After Williams was charged as a multiple offender the original sentence on the second count was vacated and a new sentence was imposed based on the multiple ofFender adjudication That sentence was also twenty years five There was no increase in the penalty imposed on him Rather the change in the good time statute simply removed the opportunity to take advantage of provisions for early release Williams 2007 at 4 978 So at 422 0614 9 2d 425 4 In the matter before us as in Williams the definition of the criminal conduct committed by Massey was not changed by the amendment to La R 15 that S 571 3 occurred after he committed the crimes for which he was convicted and sentenced Nor did the application of the amended versions of La R 15 increase the penalty by S 571 3 which his crimes were punishable Therefore the application of Act 572 to Massey did not violate the expostfacto provisions of the Louisiana and United States Constitutions CONCLUSION After a thorough review of the record and relevant jurisprudence we find no error of law or abuse of discretion by the district courk Accordingly we affirm the district s court June 1 2012 judgment and assess all costs associated with this appeal against Paul Massey AFFIRMED 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.