Robert Johnson VS Department of Public Safety & Corrections Secretary of Said Department
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 CA 0335 ROBERT JOHNSON VERSUS DEPARTMENT OF PUBLIC SAFElY AND CORRECTIONS SECRETARY OF SAID DEPARTMENT Judgment rendered NOV 0 7 2014 ****** Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. C610012 Honorable Wilson Fields, Judge ****** ROBERT JOHNSON HOMER, LA IN PROPER PERSON PLAINTIFF-APPELLANT WILUAM L. KUNE BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE LOUISIANA DEPARTMENT OF PUBUC SAFETY AND CORRECTIONS ****** BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. PETTIGREW, J. Petitioner, Robert Johnson, an inmate in the custody of the Louisiana Department of Public Safety and Corrections ("DPSC"), appeals a judgment affirming DPSC's final agency decision rendered under Administrative Remedy ("ARP") No. HDQ-2012-0112, denying his request for good time eligibility and dismissing his appeal with prejudice. For the reasons that follow, we affirm. DISCUSSIQN According to the record, Johnson was arrested and charged with armed robbery on September 22, 1990. He was sentenced on December 6, 1991, to 50 years with DPSC. At the time of his sentencing, he was given credit for 440 days of presentence time spent in parish jail while awaiting trial and sentencing. Since his sentencing, Johnson has been awarded double good time (30 days for 30 days) for all time served, pursuant to La. R.S. 15:571.14, the statute in effect at the time Johnson committed the armed robbery. In 2011, Johnson initiated ARP No. HDQ-2012-0112, wherein he challenged DPSC's denial of his good time eligibility. Johnson argued that DPSC had violated his right against ex post facto application of laws by depriving him of the right to receive double good time credit for his parish jail time (a total of 14 months jail time) and by applying the "second crime of violence law" to him, as there was no such classification when he was first convicted in the 1980s. 1 DPSC reviewed Johnson s ARP according to the procedures provided by law and denied his request for relief at each step. In the Second Step Response Form, Johnson received the following explanation from DPSC: The offender's issues are sornewhat confusing as he states we have applied the 2nd crime of violence law to him illegally prohibiting him from earning double good time on his jail credit and from qualifying for 35 days of good time for every 30 incarcerated under Act 649. Although the offender does have two crimes of violence, Act 150 of 1994 was not applied to his sentence as his second crime of violence was 2 committed prior to the enactment of this statute. [lJ The offender is sentenced under and receiving good time under Act 376 of the 1988 legislative session.[ 2J This allows the offender to receive double good time (30 days for every 30 incarcerated) from hi.s date of sentence. The offender is not receiving double good time on his pre-trial incarceration time. Act 138 of the 1991 legislature allowed the earning of good time on jail credit. Only those sentenced or re.. sentenced on or after January 01, 1992 are allowed to earn good time on the jail creditP1 As the offender was sentenced prior to this date, his time is considered correct. The offender also mentions eligibility for Act 649 of the 2010 legislative session.[4 J However, the offender is not eligible for this increase in good time as the legislation places restrictions on the eligibility. Offenders convicted of a crime of violence that are now enumerated under 14:2(B) regardless of the date of conviction are not eligible for the increase of good time. Johnson then filed his petition for judicial review in the Nineteenth Judicial District Court (19th JDC); it was assigned to a commissioner for evaluation and to make a 1 The computation of "good time" credits is set out in La. R.S. 15:571.3, which has been amended numerous times since its enactment. One of those amendments, Acts 1994, No. 150, §1, provided that diminution of sentence was not allowed to inmates convicted a second time of a crime of violence as defined by La. R.S. 14:2(B). 2 Prior to its repeal, La. R.S. 15:571.14 (as amended by Acts 1988, No. 376, §1) provided, in pertinent part, · as follows: Notwithstanding any other provision of this Part, inmates who meet the criteria of this Section may receive increased diminution of sentence for good behavior, hereinafter referred to as "good time." 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 Corrections. (2) The inmate must be eligible to receive good time. (6) No inmate shall receive more than thirty days of good time earned for each calendar month. 3 Another amendment to La. R.S. 15:571.3 was Acts 1991, No. 138, §1, which provided that prisoners could earn thirty days of good time for each thirty days served in actual custody. Section 4 of Acts 1991, No. 138 provided as follows: "Section 4. The provisions of the Act shall become effective on January 1, 1992, or thirty days after the effective date of the sentencing guidelines promulgated by the Louisiana Sentencing Commission, whichever is later." The effective date of the sentencing guidelines promulgated by the Louisiana Sentencing Commission was January 1, 1992. Section 5 of said Act provided: "Section 5. The provisions of this Act shall apply only to persons sentenced on or after the effective date of this Act and shall apply prospectively only to the remaining portion of any sentence of any person serving a sentence or sentences on or after the effective date of this Act." 4 Acts 2010, No. 649, §1, amended La. R.S. 15:57L3(B)(1)(a) to provide that prisoners could earn thirty-five days of good time for every thirty days in actual custody. However, subparagraph (B)(l)(b), added by the same legislation, specified that the provisions of subparagraph (a) were only applicable to persons convicted of offenses on or after January 1, 1992, and who were not serving a sentence for the following offenses: a sex offense as defined in La. R.S. 15:541; a crime of violence as defined in La. R.S. 14:2(B); any offense which would constitute a crime of violence as defined in La. R.S. 14:2(B), or a sex offense as defined in La. R.S. 15:541, regardless of the date of conviction. 3 recommendation to the district court judge. 5. DPSC. filed a response to his petition and attached the entire administrative record, The· commissioner reviewed the record and determined that, based on applicable !aw, PPSCs qecision to deny Johnson's good time eligibility should be affirmed, and Johnson's petition for judicial review should be dismissed. On September 17, 2013, after a de novo review of the record and the commissioner's recommendation, the district court judge signed a judgment incorporating the commissioner's recommendation. The commissioner's screening report noted, in pertinent part, as follows: The Petitioner's complaint is that [DPSC] erred in denying him retroactive double good time on prior jail credits (served in 1991). The Petitioner argues that since R.S. 15:571.14 was repealed, it is null and void and without any effect on his sentence, thus making Act 138 the only applicable statute, thus making it retroactiv:ely applicable. This argument is without legal merit because of the specific legislative directive to limit the applicability of the Act to those sentenced after its 1992 effective date, ' with one exception hereinafter discussed. The Petitioner's argument is that to ,deny retroactive effect (i.e. double good time) for time spent in a parish jail prior to sentence is a violation of equal protection. This argument is again without merit. There is no equal protection violation because the Act affected all inmates serving sentences at the time of its enactment the same. It did not adversely affect the good time that those inmates then currently serving sentences had previously earned, as they were not ever entitled to double good time on jail credits, but only on the time served after sentenced to [DPSC]. (See R.S. 15:571.14(1.)[)]. Contrary to the Petitioner's argument that Act 138 should be interpreted to be procedural and/or interpretive and thus, applied retroactively, the very Act itself contradicts that argument. Subsection 5 thereof states that it does not apply to sentences imposed prior to 1992, except prospectively from the effective date only ... [.] The Legislature in this case clearly del.ineated the effective date of Act 138, and how it was to eff~ct pr()spective as. well.· .as then current ~ontradiction· here created by Act sentences, ... [T]here is no ambigt,Jity 138. Further, the equal . protection Clause does not require absolute equality or precisely equal advantages, Considering the legislature's authority and the presumptiveness of c·onstitutionality of the statute, I suggest that the restriction therein does ·not violate the equal protection clause for reasons previously stated. or 5 The office of commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The commissioner's written findings and recommendations are submitted to a district co~rt judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(S). 4 Also, jurisprudence is consistent and longstanding that the award of good time is not a federal constitutional right, but is, instead, a matter of state law. Clearly, the legislature had and has Ule authority (which it has used extensively over the years) to change the go(!d time laws, without each change applying to all inmates, retroactively. In this case, there is no suspect class or fundamental right invo!vedr since the Petitioner does not allege that he ever had any vested interest in double good time for time spent in a parish jail. Consequently, any conceivable, reasonable state interest in the disparate treatment is sufficient to satisfy the constitutional inquiry. The fact that other inmates sentenced after the Petitioner (and after the effective date of the Act) are aHoV\fed additional good time credits (i.e. good time on parish prison time) is n,ot a ground for declaring the statute unconstitutional as written or applied in this case or for granting retroactive application of it. As stated, there is nothing in the allegations or record to suggest that any prisoners sentenced prior to the effective date of Act 138 are treated differently with respect to its applicability, and thus, there is no equal protection violation. Act 138 contains specific restrictions as to the effective dates of applicability, restricting the applicability of double good time on jail credits only to those persons sentenced after the effective date of January 1992. Based on the facts of this case, this Court is required to give efficacy to a completely unambiguous good time law even with certain limitations of applicability to those sentenced prior to its effective date. Likewise, [DPSC] also is bound by the law as written, and since the Petitioner makes no valid argument that the statute is either unconstitutional or that it should be interpreted retroactively, [DPSC'S] decision denying relief must be upheld as not manifestly erroneous, arbitrary or in violation of any of the Petitioner's constitutional or statutory rights and it must be upheld. [Footnotes omitted.] This appeal by Johnson followed. After a thorough review of the record, in consideration of Johnson's arguments on appeal, and applying the. relevant law and jurisprudence, we find no error of· law or abu~e of discretion by the district court in adopting, as its own, the commissioner's report> Thus, we affirm the September 17, 2013 judgment of the district court a·nd find that the district court's reasons for judgment, as set forth in the commissioner's recommendation, adequately explain the decision. All costs associated with this appeal are assessed against petitioner, Robert Johnson. AFFIRMED. . .5
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