PRESTON DEMOUCHETTE JR v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY CORRECTIONS

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Court of Appeal of Louisiana, First Circuit.

PRESTON G. DEMOUCHETTE, JR. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS

2016 CA 0726

Decided: February 17, 2017

BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. Preston Demouchette, Jr., Louisiana State Penitentiary, Angola, LA, Plaintiff/Appellant, Pro Se Terri Cannon, Louisiana State Penitentiary, Angola, LA, Attorney for Defendant/Appellee, Louisiana Dept. of Public Safety & Corrections

Preston Demouchette, Jr., an inmate in the custody of the Louisiana Department of Public Safety and Corrections (Department), appeals a district court judgment dismissing his petition for judicial review, wherein he challenged the Department's denial of his request for administrative relief regarding the calculation of good time credits. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Demouchette is currently serving two consecutive ninety-nine year sentences on two separate counts of armed robbery at the Louisiana State Penitentiary in Angola, Louisiana. Demouchette was sentenced on November 10, 1976 and September 15, 1978. Demouchette filed a request for relief under the Corrections Administrative Remedy Procedure (CARP)1 LSP-2014-0307. Demouchette requested that his good time credits be re-calculated pursuant to La. R.S. 15:571.3(B)(1), as amended and reenacted by 2010 La. Acts, No. 649, eff. Oct. 15, 2010. The Department denied Demouchette's relief requested at the first and second step of CARP because he was serving a sentence for a crime of violence as defined by La. R.S. 14:2(B).2

Demouchette filed a petition in the Nineteenth Judicial District Court, which was assigned to a Commissioner 3 for evaluation and to make a recommendation to the district court judge. Demouchette was seeking judicial review of the Department's denial of his request that his good time credit be re-calculated pursuant to La. R.S. 15:571.3(B)(1), as amended and reenacted by 2010 La. Acts, No. 649.

The Commissioner ordered that the matter be stayed for ninety days so that it could be remanded to the Department for reconsideration of Demouchette's claim in consideration of the Louisiana Supreme Court case Massey v. Louisiana Department of Public Safety & Corrections, 2013-2789 (La. 10/15/14), 149 So.3d 780, 781.4 After reviewing Demouchette's claim again, the Department determined that the Massey decision was not applicable to his case. On June 11, 2015, the Department issued the following “amended response” to Demouchette, stating in pertinent part:

As ordered by the 19th Judicial District Court ․ this matter is being addressed in consideration of the Massey decision. A review of ․ [the] record reveals that the Massey decision is not applicable in this instance. [Demouchette's] time is calculated under Act 739 which has an effective date of anyone committing an offense on or after 7/26/1972 and before 9/09/1977. [Demouchette] correctly falls into this category based on when he committed his offenses, therefore not subject to ex post facto and not applicable to the Massey decision. [Demouchette's] time calculation is considered correct[.]

The Commissioner then reviewed the record and issued his report on November 17, 2015. The Commissioner's report stated in pertinent part:

[Demouchette's] interpretation of Act 649 of 2010 is erroneous and fails to acknowledge that [La.] R.S. 15:571.3(B)(1)(b) provides the exceptions to the beneficiaries of [La.] R.S. 15:571.3(B)(1)(a). The language of [La.] R.S. 15:571.3(B)(1)(b) is clear and [Demouchette's] conviction for Armed Robbery in 1978 makes him an exception to [La.] R.S. 15:571.3(B)(1)(a) and therefore ineligible for the rate of diminution of sentence of 35 days good time for every 30 days spent in actual custody as provided under the provisions of Act 649 of 2010 in that he is currently serving a sentence for Armed Robbery (a crime of violence as defined in [La.] R.S. 14:2(B)). Therefore, the Department's decision to deny relief as requested is correct and must be affirmed.

After receiving the Commissioner's recommendation, the district court conducted a de novo review of the record and adopted the Commissioner's recommendation. Consequently, the district court signed a final judgment dismissing Demouchette's suit with prejudice on December 9, 2015, finding that the Department's decision was in accord with the statutory mandate of La. R.S. 15:571.3(B)(1) as amended by 2010 La. Acts, No. 649. Demouchette then devolutively appealed.5

DISCUSSION

Demouchette argues on appeal that he is entitled to thirty-five days credit for every thirty days served from the date of his initial sentencing pursuant to La. R.S. 15:571.3(B)(1).6 Demouchette's argument on appeal is based on the 2010 amended language of La. R.S. 15:571.3(B)(1), providing in pertinent part:

(a) Except as provided in Paragraph (B)(2) of this Section, every inmate in the custody of the [D]epartment who has been convicted of a felony, except an inmate convicted a second time of a crime of violence as defined by [La.] R.S. 14:2(B), ․ may earn ․ a diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as “good time.” ․ [t]he amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty-five days for every thirty days in actual custody.

(b) The provisions of Subparagraph (a) of this Paragraph shall be applicable to persons convicted of offenses on or after January 1, 1992 and who are not serving a sentence for the following offenses:

(i) A sex offense as defined in R.S. 15:541.

(ii) A crime of violence as defined in R.S. 14:2(B).

(iii) Any offense which would constitute a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541, regardless of the date of conviction.

In accordance with the general rules of statutory interpretation, the interpretation of any statutory provision begins with the language of the statute itself. In re Succession of Faget, 2010-0188 (La. 11/30/10), 53 So.3d 414, 420. Further, when the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. C.C. art. 9; La. R.S. 1:4; In re Clegg, 2010-0323, (La. 7/6/10), 41 So.3d 1141, 1154. Accordingly, we are bound to a strict interpretation of the plain language of La. R.S. 15:571.3 and apply the law as written.

Demouchette was convicted of and is currently serving two ninety-nine year consecutive sentences for armed robbery, which is a crime of violence pursuant to La. R.S. 14:2(B)(21).7 Relevant to Demouchette's circumstances, Act 649 of 2010 amended La. R.S. 15:571.3(B)(1) prohibit offenders who were convicted of a crime of violence from earning good time at the increased rate of thirty-five days good time for every thirty days spent in actual custody. Thus, Demouchette is considered an exception under La. R.S. 15:571.3(B)(1) and is ineligible for the rate of diminution of sentence he requests. Accordingly, we find that the judgment of the district court was correct and should be affirmed and we find no error in the Department's decision to deny Demouchette's request that his good time credits be re-calculated pursuant to La. R.S. 15:571.3(B)(1), as amended and reenacted by 2010 La. Acts, No. 649.8

CONCLUSION

For all of the foregoing reasons, we find no error of law or abuse of discretion by the district court in adopting, as its own, the Commissioner's report. Thus, we affirm the judgment of the district court dismissing Preston Demouchette, Jr.'s petition for judicial review with prejudice. See La. R.S. 15:1177. We decline to assess costs in this pauper suit.

AFFIRMED.

FOOTNOTES

1.   Inmates who allege an error in computation of good time credits are required to pursue the claim through the Corrections Administrative Remedy Procedure (CARP). Owens v. Stalder, 2006-1120 (La. App. 1 Cir. 6/8/07), 965 So.2d 886, 888 n. 5. Louisiana Revised Statutes 15:1171(B) grants the Department the authority to adopt administrative proceedings to receive, hear, and dispose of all inmate complaints and grievances. The statute also provides that such administrative proceedings are to provide the exclusive remedy to the inmate for those complaints. Owens, 965 So.2d at 888 n. 4.

2.   Demouchette previously filed a Petition for Habeas Corpus in the Nineteenth Judicial District Court in October of 2014 after being denied relief in the first and second steps of CARP. Demouchette was seeking release from custody. The commissioner's report recommended that Demouchette's petition be dismissed for failure to state a claim and the district court rendered a judgment accordingly. On appeal, this court affirmed the district court's judgment dismissing Demouchette's petition with prejudice. See Demouchette v. Louisiana Department of Public Safety and Corrections, 2015-0968 (La. App. 1 Cir. 2/24/16)(unpublished).

3.   The office of Commissioner of the Nineteenth Judicial District Court 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. La. R.S. 13:713(A). The district judge “may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions.” La. R.S. 13:713(C)(5); Abbott v. LeBlanc, 2012-1476 (La. App. 1 Cir. 3/25/13), 115 So.3d 504, 505 n. 1.

4.   In Massey, 149 So.3d at 783, the Louisiana Supreme Court held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer.

5.   While Demouchette appears in proper person and has failed to specifically identify any assignments of error, we accept his brief as an appeal of the December 9, 2015 judgment.

6.   Louisiana Revised Statutes 15:1177(A)(10) provides that an aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal. Demouchette applied for a supervisory writ, which this court granted for the limited purpose of remanding the case to the district court with instructions to grant Demouchette an appeal. SeeDemouchette v. Louisiana Department of Public Safety and Corrections, 2016-0063 (La. App. 1 Cir. 4/21/16)(unpublished writ action).

7.   1992 La. Acts, No. 1015 amended La. R.S. 14:2 to add subparagraph 2(13), “crime of violence,” which is a list of crimes of violence, including armed robbery. We note that Demouchette was sentenced on November 10, 1976 and September 15, 1978. Although La. R.S. 14:2(B) was not enacted at the time of his conviction, the law states that persons convicted of crimes of violence (now enumerated under La. R.S. 14:2(B)), regardless of the date of conviction, are not eligible for an increase of good time credit. See Gilmer v. Louisiana Department of Public Safety & Corrections, 2015-0134 (La. App. 1 Cir. 9/18/15), 181 So.3d 746, 750.

8.   We note that the Commissioner's report, which the Nineteenth Judicial District Court adopted as judgment, did not consider the “Good Time Rate Option and Approval Form” that Demouchette signed in 1992, pursuant to La. Acts 1991, No. 138, which revealed that he opted to receive thirty days good time for every thirty days in actual custody. Because this would not change the result of this opinion, we decline to address this issue.

HOLDRIDGE, J.

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