ANTONIO CUZA v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS (2025)

Following a remand by this court for completion of the record by the Department of Public Safety and Corrections (“the Department”),¹ this matter is again before us on appeal by Antonio Cuza, an inmate in the custody of the Department, from a judgment of the district court dismissing his petition for judicial review with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On October 18, 2017, Mr. Cuza was found guilty by a jury of having committed an aggravated battery, a violation of La. R.S. 14:34, on March 15, 2015. He was sentenced on November 9, 2017, to ten years imprisonment.² Mr. Cuza was subsequently billed as a fourth felony offender pursuant to La. R.S. 15:529.1. Pursuant to a plea agreement, Mr. Cuza pled guilty as a second felony offender on May 3, 2018. After Mr. Cuza waived all delays, the district court vacated his ten-year sentence and imposed an enhanced sentence of twenty years at hard labor, without the benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1.³

On May 6, 2020, Mr. Cuza filed a grievance pursuant to the Louisiana Corrections Administrative Remedy Procedure (“CARP”) set forth in La. R.S. 15:1171, et seq., challenging the Department's denial of his parole eligibility, which was assigned Administrative Remedy Procedure (“ARP”) No. RCC-2020-362. Mr. Cuza argued that the Department erroneously changed his offender class from a second to a third felony offender, thereby making him ineligible for parole. Relying on the habitual offender sentencing minutes and transcript, Mr. Cuza argued that he was sentenced as a second felony offender pursuant to La. R.S. 15:529.1(A)(1),⁴ which does not prohibit his parole eligibility. He further contended that it was the sentencing court's “intent” that he be afforded the opportunity for parole because although it restricted his sentence to no probation or suspension, it placed no such restrictions on his parole eligibility.

The Department issued a first-step response on May 20, 2020, determining that Mr. Cuza was not eligible for parole because he was a third felony offender with his instant offense of aggravated battery being his second crime of violence. Its response provided as follows:

Your record was checked for accuracy when you arrived at this facility on February 3, 2020. It was discovered that you had two out of state convictions in Florida. One was a misdemeanor and did not count toward offender class. However, due to the nature of that crime being [a]ggravated [a]ssault, it does make your instant offense a second crime of violence. The other Florida conviction was counted as your [first] felony conviction and with your two convictions in Louisiana you are considered a third offender class.

You are currently serving under [La.] R.S. 15:529.1 as a habitual offender ․ We did not state that you are sentenced under any other statute in previous correspondence. The Louisiana Revised Statute 14:2(8) lists all violent offenses and [La.] R.S. 15:541 lists sex offenses. These statutes are cited in the Department Regulation under the Computation of Parole Eligibility.

When sentenced the judge can order that the sentence be served “without benefit of probation or suspension” of sentence. However, your parole or time calculation must still follow the Louisiana Revised Statutes in place at the time you committed any offense. Your instant offense was committed prior to November 1, 2017, when [La. R.S. 15:574.4] changed under Act 280 for parole eligibility when serving a crime of violence.

Because your commit date is March 15, 2015, and you are currently serving for a crime of violence as a third offender class, you are not eligible for parole. Your requested remedy is denied.

Mr. Cuza then proceeded to step two of the ARP process. On July 10, 2020, the Department issued a second-step response maintaining its determination that Mr. Cuza was not eligible for parole due to his classification as a third felony offender and again rejecting his request for relief. Not satisfied with the Department's response, on July 13, 2020, Mr. Cuza filed a Motion for Clarification of Sentence with the sentencing court in the underlying criminal proceeding.

On August 5, 2020, Mr. Cuza filed a petition for judicial review of his ARP with the Nineteenth Judicial District Court in accordance with La. R.S. 15:1177. Mr. Cuza argued that the Department erred in finding him ineligible for parole consideration when parole restriction was not part of his sentence or his signed plea agreement. Mr. Cuza supplemented his petition with the sentencing court's July 27, 2020 response to his Motion for Clarification of Sentence, which provides that “[t]he defendant's sentence is clearly legal and does not prohibit parole eligibility.”⁵

The Department filed an answer maintaining its determination that Mr. Cuza is a third time offender and is therefore not eligible for parole.

The commissioner issued a report noting that Mr. Cuza was correct in that the sentencing court and La. R.S. 15:529.1 placed no specific restrictions on his parole eligibility, but explained that La. R.S. 15:574.4 restricted his parole eligibility due to the number of his prior felony convictions, and that the restrictions imposed by La. R.S. 15:574.4 are not usurped by La. R.S. 15:529.1.⁶ The commissioner further explained that Mr. Cuza's adjudication as a second felony offender does not mean that he was convicted of only two felonies. Instead, the designation as a second felony offender (under La. R.S. 15:529.1), rather than a third, fourth, or subsequent, only affects sentencing exposure but not parole eligibility. The commissioner thus recommended that the Department's decision be affirmed and Mr. Cuza's suit be dismissed.

The district court signed a judgment on July 1, 2021, adopting the commissioner's report as its reasons, dismissing Mr. Cuza's petition for judicial review with prejudice, and assessing Mr. Cuza with costs.⁷

Mr. Cuza sought review of that judgment,⁸ and, on appeal, another panel of this court determined that the record did not contain sufficient evidence to support the commissioner's finding that Mr. Cuza was a third felony offender who was ineligible for parole as mandated by La. R.S. 15:574.4(A)(1)(a). See Cuza v. Louisiana Department of Public Safety and Corrections, 2022-1286 (La. App. 1st Cir. 6/20/23), 2023 WL 4067498, **1-3 (unpublished). Thus, in an opinion issued on June 20, 2023, this court vacated the July 1, 2021 judgment and remanded the matter to the district court with instructions to “order the Department to produce the entire record in ARP No. RCC-2020-362, to determine Mr. Cuza's third felony offender status and to take whatever further action is necessary based on the information it receives.” See Cuza, 2023 WL 4067498 at *4.

On remand, the Department submitted Mr. Cuza's master prison record. On March 18, 2024, a commissioner issued an amended report finding that: (1) the Department submitted sufficient evidence to establish that Mr. Cuza was a third felony offender who not eligible for parole pursuant to La. R.S. 15:574.4 at the time he was convicted and sentenced; and (2) that Mr. Cuza would not be eligible under the version of La. R.S. 15:574.4 as revised by Acts 2017, No. 280, § 3 (“Act 280”) because La. R.S. 15:574.4(A)(1)(b)(iii) limited application of Act 280 to offenses committed on or after November 1, 2017. The commissioner thus recommended that the Department's decision be affirmed and Mr. Cuza's suit be dismissed with prejudice.⁹ In doing so, the commissioner determined:

[T]he Department provided a rap sheet showing [Mr. Cuza] was (1) convicted in Florida in 2005 for attempted possession of cocaine (which would be a felony in Louisiana), that he was (2) convicted for a felony in Jefferson Parish in 2010 for false imprisonment while armed with a dangerous weapon (R.S. 14:46.1), and that he was (3) convicted for aggravated battery (R.S. 14:34) for his third felony (for which he was adjudicated for sentencing purposes as a second felony habitual offender seemingly to limit his sentencing exposure). Therefore, it is the suggestion of this Commissioner that the Department has supplemented the record with sufficient evidence showing [Mr. Cuza] is a third felony offender for purposes of denying his parole eligibility in accordance with [La.] R.S. 15:574.4 at the time [Mr. Cuza] was convicted and sentenced. This Commissioner notes [Mr. Cuza] would not be eligible under the more forgiving provisions of Act 280 of 2017 as [La.] R.S. 15:574.4(A)(1)(b) as (iii) states the provisions of this subparagraph shall be applicable only to persons who commit an offense or whose probation or parole is revoked on or after November 1, 2017. [Mr. Cuza's] aggravated battery offense was committed on March 15, 2015 requiring a finding of not eligible for parole if convicted of three or more felonies.

Following Mr. Cuza's timely traversal of the commissioner's amended report, the district court rendered a judgment on April 16, 2024, affirming the Department's decision, dismissing Mr. Cuza's petition for judicial review with prejudice, and adopting the commissioner's amended report as its reasons.¹⁰ Mr. Cuza now appeals.

On appeal, Mr. Cuza urges that the district court erred in: (1) affirming the Department's decision by adopting the commissioner's report and assessing him costs; (2) issuing its ruling in retaliation for this court's prior “favorable” ruling; (3) violating the ex post facto clauses of the United States and Louisiana Constitutions; and (4) affirming the Department's conclusion that he had “three violent crimes” on his record.

In general, appellate courts will not consider issues raised for the first time on appeal. Taylor v. Louisiana Department of Public Safety and Corrections, 2014-1265 (La. App. 1st Cir. 3/6/15), 2015 WL 998786, *2 (unpublished). In fact, La. R.S. 15:1177(A)(5) specifically provides that judicial review of the Department's administrative decisions “shall be confined to the record” and “shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level.”

Because Mr. Cuza did not raise the retaliation argument at the agency level, it is not properly before this court for review. See La. R.S. 15:1177(A)(5); Taylor, 2015 WL 998786 at *2; Hogan v. LeBlanc, 2018-1286 (La. App. 1st Cir. 4/12/19), 2019 WL 1578101, *2 n.2 (unpublished). Accordingly, we will review Mr. Cuza's remaining assignments of error relating to the Department's determination as to his parole eligibility, which are properly before this court.¹¹ See Hogan, 2019 WL 1578101 at *2 n.2.

DISCUSSION

Judicial review of this matter is governed by La. R.S. 15:1177, which allows the district court to reverse or modify the Department's decision only if substantial rights of the appellant have been prejudiced because the administrative decisions or findings are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or characterized by an abuse of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. La. R.S. 15:1177(A)(9); Woodberry v. Louisiana Department of Public Safety & Corrections, 2023-0203 (La. App. 1st Cir. 9/15/23), 372 So. 3d 373, 376. Judicial review shall be conducted by the district court without a jury and shall be confined to the record and limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. La. R.S. 15:1177(A)(5).

An aggrieved party may appeal a final judgment of the district court to the appropriate appellate court. La. R.S. 15:1177(A)(10). On appeal of the district court's judgment, the appellate court reviews the administrative record de novo applying the criteria of La. R.S. 15:1177(A)(9). Woodberry, 372 So. 3d at 376. The appellate court owes no deference to the district court's factual findings or legal conclusions, just as the Louisiana Supreme Court owes no deference to the factual findings or legal conclusions of the appellate court. Marchand v. Louisiana Department of Public Safety & Corrections, 2020-0747 (La. App. 1st Cir. 2/24/21), 322 So. 3d 269, 273, writ denied, 2021-00457 (La. 9/27/21), 324 So. 3d 104.

On appeal, Mr. Cuza argues that the Department's imposition of a parole restriction when the sentencing court imposed no restrictions on parole was in error. Mr. Cuza argues that although La. R.S. 15:529.1(G) required that his habitual offender sentence be served without benefit of probation or suspension of sentence, neither La. R.S. 15:529.1(G) or La. R.S. 14:34 restricted his parole eligibility.

While that may be true with regard to La. R.S. 15:529.1(G) and La. R.S. 14:34, the relevant statute specifically governing parole eligibility is La. R.S. 15:574.4. And, parole eligibility is determined by the Department and not by the sentencing court. Cuza, 2023 WL 4067498 at *3. The Department administers the standards governing parole eligibility and determines whether a particular inmate is eligible for parole consideration by the parole board. In determining parole eligibility dates, the Department applies the statutory criteria of La. R.S. 15:574.4, as well as other relevant statutes and interpretative jurisprudence, to determine whether or not a particular inmate is eligible for parole consideration by the board. State v. Simmons, 2020-0695 (La. App. 1st Cir. 6/4/21), 327 So. 3d 542, 545, n.5. Accordingly, to the extent that Mr. Cuza relies on the sentencing court's order “clarifying” his sentence, we note that parole eligibility is determined by the Department and find no merit to his argument that an order of the sentencing court can serve to determine his parole eligibility.

Parole eligibility is generally governed by the date of commission of the offense. La. R.S. 15:574.4, et seq.; Tarver v. Louisiana Department of Public Safety and Corrections, 2020-1126 (La. App. 1st Cir. 5/12/21), 326 So. 3d 297, 303. On March 15, 2015, at the time Mr. Cuza committed his offense, La. R.S. 15:574.4(A)(1)(a) provided that “[a] person convicted of a third or subsequent felony offense shall not be eligible for parole” as follows:

Unless eligible at an earlier date and except as provided for in Subparagraph (b) of this Paragraph and Subsection B of this Section, a person, otherwise eligible for parole, convicted of a first felony offense shall be eligible for parole consideration upon serving thirty-three and one-third percent of the sentence imposed. Upon conviction of a second felony offense, such person shall be eligible for parole consideration upon serving fifty percent of the sentence imposed. A person convicted of a third or subsequent felony offense shall not be eligible for parole.

(Emphasis added.)

Mr. Cuza's master prison record indicates that he was convicted of the following felonies: (1) attempted possession of cocaine in Florida in 2005; (2) false imprisonment while armed with a dangerous weapon (a violation of La. R.S. 14:46.1) in 2010; and (3) aggravated battery (a violation of La. R.S. 14:34) committed on March 15, 2015.

The record establishes that Mr. Cuza committed the third felony offense of aggravated battery on March 15, 2015. Thus, under the general rule that parole eligibility is governed by the date of commission of the offense, at the time of this offense, the version of La. R.S. 15:574.4(A)(1)(a) in effect did not allow parole eligibility for Mr. Cuza as a third felony offender.¹² See Campbell v. Louisiana Department of Public Safety & Corrections, 2023-1097 (La. App. 1st Cir. 4/19/24), 389 So. 3d 860, 864-865, writ denied, 2024-00649 (La. 9/17/24), 392 So. 3d 893.

We next determine whether Act 280 applies herein to allow Mr. Cuza consideration for parole eligibility. This court has held that, relative to the amount of time required to be served prior to being eligible for parole, Act 280 constituted a substantive amendment and contained no expression that it is to be applied retroactively. See Brumfield v. Louisiana Department of Public Safety & Corrections, 2022-0869 (La. App. 1st Cir. 12/22/22), 358 So. 3d 70, 75. In the absence of contrary legislative expression, substantive laws apply prospectively only. La. C.C. art. 6. Moreover, no Section of the Revised Statutes is retroactive unless it is expressly so stated. La. R.S. 1:2.

Turning to the language of the statute, we note that La. R.S. 15:574.4 was amended by Act 280 to allow consideration for parole eligibility to a person whose instant offense is a second crime of violence as defined by La. R.S. 14:2(B), upon serving 75% of the sentence imposed. See La. R.S. 15:574.4(A)(1)(b)(i). As set forth herein, Mr. Cuza was convicted of false imprisonment with a dangerous weapon (La. R.S. 14:46.1) and aggravated battery (La. R.S. 14:34). Both of these offenses are defined as crimes of violence, with his instant offense of aggravated battery serving as his second conviction for a crime of violence. See La. R.S. 14:2(B)(5) and (25).

However, the legislature has expressly limited retroactive application of La. R.S. 15:574.4(A)(1)(b)(i), to persons who committed an offense on or after November 1, 2017, by La. R.S. 15:574.4(A)(1)(b)(iii), which provides as follows:

The provisions of this Subparagraph shall be applicable only to persons who commit an offense or whose probation or parole is revoked on or after November 1, 2017. [Emphasis added.]

Thus, to the extent that Mr. Cuza argues that he is eligible for parole under La. R.S. 15:574.4 as amended by Act 280, because Mr. Cuza's second crime of violence was committed on March 15, 2015, and not on or after November 1, 2017, he is ineligible for parole under the plain language of La. R.S. 15:574.4(A)(1)(b).

Accordingly, under the version of La. R.S. 15:574.4 in effect at the time he committed the instant offense and the version as amended by Act 280, Mr. Cuza is not eligible for parole consideration. For these reasons, we affirm the judgment of the district court dismissing Mr. Cuza's petition for judicial review with prejudice.

CONCLUSION

For the above and foregoing reasons, the April 16, 2024 judgment of the district court is affirmed. Costs of this appeal are assessed to the appellant, Antonio Cuza.

AFFIRMED.

FOOTNOTES

1.   See Cuza v. Louisiana Department of Public Safety and Corrections, 2022-1286 (La. App. 1st Cir. 6/20/23), 2023 WL 4067498 (unpublished).

2.   Mr. Cuza's conviction and sentence were affirmed on appeal. See State v. Cuza, 2018-187 (La. App. 5th Cir. 11/28/18), 260 So. 3d 754, 762, writ denied, 2019-00017 (La. 11/12/19), 282 So. 3d 232.

3.   Mr. Cuza's multiple offender adjudication and sentence were affirmed on appeal and, following a patent error review, the matter was remanded to the district court to correct the Uniform Commitment Order to reflect that Mr. Cuza's enhanced multiple offender sentence be served in its entirety without the benefit of probation or suspension of sentence in accordance with the sentencing transcript. See State v. Cuza, 2018-716 (La. App. 5th Cir. 4/24/19), 271 So. 3d 369, 376, writ denied, 2019-00885 (La. 11/12/19), 282 So. 3d 228.

4.   At the time of Mr. Cuza's sentencing, La. R.S. 15:529.1(A)(1), which provides the sentencing guidelines for second felony offenders, provided as follows:A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.

5.   The sentencing court's order provides in full as follows:This matter comes before the court on defendant's MOTION FOR CLARIFICATION OF SENTENCE, STAMPED AS FILED JULY 13, 2020.The defendant was convicted by jury of aggravated battery and the conviction was upheld on appeal. State v. Cuza, 260 So.3d 754 (La. App. 5 Cir. 11/28/18). He then was charged with being a four-time felony offender and he admitted in open court to the reduced charge of being a double felony offender.The defendant now appears to argue that his enhanced (sic) should not prohibit parole or that the court should issue a statement regarding parole eligibility. On his second appeal, the Fifth Circuit conducted patent error review and noted that the “Uniform Commitment Order (UCO) of defendant's multiple offender sentence contains a discrepancy with the transcript that requires correction. The UCO fails to reflect the restriction of benefits of probation or suspension of sentence for the entirety of defendant's enhanced sentence.” State v. Cuza, 271 So.3d 369 (La. App. 5 Cir. 4/24/19).Pursuant to the directive of the Fifth Circuit, this court issued a nunc pro tunc entry on May 2, 2019 to provide that the multiple offender sentence is to be served without probation or suspension. The defendant's sentence is clearly legal and does not prohibit parole eligibility. The defendant is not entitled to any correction or clarification of this legal sentence.Accordingly,IT IS ORDERED BY THE COURT that the defendant's motion be and is hereby DENIED.

6.   The offices of commissioner of the Nineteenth Judicial District Court were 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. A commissioner's proposed written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them in whole or in part. La. R.S. 13:713(C)(2) & (5); Barnes v. Louisiana Department of Public Safety and Corrections, 2024-0042 (La. App. 1st Cir. 9/20/24), __ So. 3d __, __ n.2, 2024 WL 4245564, *1 n.2, writ denied, 2024-01339 (La. 1/28/25), 399 So. 3d 415..

7.   Mr. Cuza filed a traversal to the commissioner's recommendation, conceding that he is a third felony offender and acknowledging that La. R.S. 15:574.4 determines parole eligibility for offenders in the custody of the Department, but maintaining that his parole eligibility was part of his plea agreement with the State. However, because the commissioner's report was mailed on February 17, 2021, and Mr. Cuza's traversal was filed on March 5, 2021, more than ten days after this transmittal, his traversal was untimely. See La. R.S. 13:713(C)(3).

8.   Mr. Cuza initially filed an application for supervisory writs. However, on July 5, 2022, this court issued an order granting the writ and remanding the matter to the district court with instructions to grant Mr. Cuza an appeal of the district court's July 1, 2021 judgment. On July 21, 2022, the order of appeal was entered by the district court and Mr. Cuza's appeal followed.

9.   In doing so, the commissioner again noted that the sentencing court's adjudication of Mr. Cuza as a second felony offender merely limits Mr. Cuza's sentencing exposure and cannot erase the fact that he possesses three felony convictions.

10.   Mr. Cuza's traversal of the March 18, 2024 amended commissioner's report was filed on March 26, 2024, and is thus timely. See La. R.S. 13:713(C)(3).

11.   Although Mr. Cuza does not mention Act 280 in his appellate brief, we will construe his pro se brief liberally and assume his third assignment of error seeks retroactive application of Act 280.

12.   Mr. Cuza concedes in his brief on appeal that he is a third felony offender.

MILLER, J.