DURET v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY

No. 2016 CA 1214.

MELVIN DURET, JR., v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.

Court of Appeals of Louisiana, First Circuit.


Attorney(s) appearing for the Case

Melvin Duret, Jr. , Cottonport, Louisiana, Petitioner-Appellant, In Proper Person.

Debra A. Rutledge , Baton Rouge, Louisiana, Counsel for Defendant-Appellee, Louisiana Department of Public Safety, and Corrections.

BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ.


NOT DESIGNATED FOR PUBLICATION

CHUTZ, J.

Petitioner-Appellant, Melvin Duret, Jr., an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), filed a petition for judicial review1 of the denial of his Administrative Remedy Procedure (ARP). In his ARP, Mr. Duret complained about his ineligibility for parole and "good time" credits based on his felony-offender classification by DPSC and his adjudication as a habitual offender. Following a de novo review, the district court adopted the reasons stated in the report issued by the commissioner.2 In accordance with the commissioner's recommendation, the district court signed a judgment on July 22, 2015, dismissing Mr. Duret's petition for judicial review with prejudice and at his cost. Mr. Duret now appeals.

We find the commissioner's report, attached herein as "Appendix A," provides a correct analysis of the applicable law regarding Mr. Duret's parole ineligibility. Further, Mr. Duret is not eligible for good time credits under La. R.S. 15:571.3(C)(2) & (3)(b).3 due to his adjudication as a habitual offender. Accordingly, after a thorough de novo review of the record, we conclude the district court properly dismissed Mr. Duret's petition for judicial review. The judgment of the district court is hereby affirmed.4 Mr. Duret is to pay all costs of this appeal.

AFFIRMED.

Appendix "A"

MELVIN DURET NO. C621,413 DIVISION: "D" DOC # 129608 19TH JUDICIAL DISTRICT COURT VERSUS PARISH OF EAST BATON ROUGE LOUISIANA DEPARTMENT OF STATE OF LOUISIANA PUBLIC SAFETY AND CORRECTIONS

COMMISSIONER'S REPORT

The Petitioner, an inmate in the custody of the Department of Public Safety and Corrections, filed this suit for judicial review of Administrative Remedy Procedure No. AVC-2013-14, seeking review in accordance with R.S. 15:1171 et seq. The Department filed the administrative record and both parties were notified of their right to file briefs. Any briefs filed have been considered and are in the record for the court's convenience. This report is issued administrative record alone in accordance with law for the Court's de novo consideration and adjudication on the merits of the Petitioner's claim.

ANALYSIS OF THE FACTS AND LAW

The scope of this Court's review is limited by R.S. 15:1177(A) (5) & (9), which states, in pertinent part, as follows:

(5) The review shall be conducted by the Court without a jury and shall be confined to the record. The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. * * * * * * * * (9) The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are: a. In violation of constitutional or statutory provisions; b. In excess of the statutory authority of the Agency; c. Made upon unlawful procedure; d. Affected by other error of law; e. Arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or f. Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record.

In this case, according to the Petitioner, he was originally sentenced by the trial court as a second habitual offender for a felony drug crime, and the district attorney gave that offer as opposed to seeking to prosecute the petitioner as a fourth felony offender.

The Petitioner was then sent to the Department's custody, whereupon a review of his Master Prison sheet showed that he had convictions prior to the instant felony conviction. Therefore, pursuant to R.S. 15:574.4, which prohibits parole to anyone with three or more felony convictions, the Department classified the Petitioner as parole ineligible on his current drug conviction. The Petitioner complains that the Department has, without authority, classified him as parole ineligible because his habitual offender adjudication by the trial court pursuant to R.S. 15:529.1 specifically did not prohibit parole eligibility.

The Petitioner is correct that the habitual offender statute does not prohibit parole eligibility, but other laws may, and in this case, R.S. 15:574.4 appears to be applicable, based on the evidence in the administrative record, which includes a copy of his Master Prison sheet.1 That Master Prison Record, which is not mentioned or disputed by the Petitioner in this record, shows well more than three felony convictions. The Petitioner has not presented any evidence to show that his Master Prison Record is in error or that he does not have three felony convictions.

As noted by the Department, that Master Prison Record bears the Petitioner's name (Melvin Duret), his social security number, other personal identifying information and his DOC number (which does not change). In addition, R.S. 15:574.4 prohibits parole eligibility to anyone with three or more felony convictions, regardless of whether he was adjudicated an habitual offender or not. The Petitioner's claim that the Department is bound by the trial court's adjudication of him as a second felony offender, and his alleged parole eligibility argument is without any legal basis.

The Department is bound by the statutory law applicable herein, and that law prohibits parole eligibility for any person convicted three or more times of a felony. The fact that the sentence imposed did not prohibit parole is irrelevant for the purpose of parole eligibility classifications by the Department. A similar issue was decided by the Supreme Court in Townley v. Department of Public Safety and Corrections.2

"This writ, therefore, presents two issues: 1) whether a conviction must have become final before it can serve as the basis for the imposition of an enhanced sentence under the Habitual Offender Law, LSA-R.S. 15:529.1; and 2) whether the Department is bound in its calculations for determining parole eligibility under LSA-R.S. 15:574.4 by the court's adjudication of an offender as an habitual offender under LSA-R.S. 15:529.1. . . . the Department is not bound by the district court's adjudication of Townley's habitual offender status under LSA-R.S. 15:529.1 when the Department is making its calculations to determine parole eligibility under LSA-R.S. 15:574.4."3 (emp. mine)

In this case, the administrative record shows, without contradiction by the Petitioner, that he has four felony convictions on his record. Even if he only has three—which he does not contend — statutory law makes him parole ineligible. The Petitioner completely ignores the clear language of R.S. 15:574.4 (A)(1) which states in pertinent part the following:

"A person convicted of a third or subsequent felony offense shall not be eligible for parole."

Thus, unless the Petitioner can allege (and show), in a traversal of this Report, that he has only been convicted of two felonies, he does not state a cause of action for any relief from this Court and this appeal is frivolous and without any legal merit.

COMMISSIONER'S SCREENING RECOMMENDATION

Therefore, after careful consideration of the entire administrative record, together with the facts and applicable law, for reasons hereinabove stated, I find that the Petitioner does not state a claim for which any relief is due under the law, and that the Department's decision is correct and must be affirmed. Therefore, I recommend dismissal of this appeal with prejudice at the Petitioner's costs.

Respectfully recommended this 1st day of July 2015, at Baton Rouge, Louisiana.

QUINTILLIS K. LAWRENCE COMMISSIONER, SECTION "B" NINETEENTH JUDICIAL DISTRICT COURT

FootNotes


1. Although the petition is captioned as a "Petition In Suit For Damages And/Or Injury," it is substantively a petition for judicial review. A pleading is construed for what it really is, not for what it is erroneously called. Buras v. Parish of Tangipahoa, 08-2429 (La. App. 1st Cir. 9/23/09), 28 So.3d 1066, 1070.
2. 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. 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) See also Abbott v. LeBlanc, 12-1476 (La. App. 1st Cir. 3/25/13), 115 So.3d 504, 505 n.1.
3. The reference herein is made to this provision as it existed at the time of Mr. Duret's conviction and sentencing on June 21, 2010.
4. As the commissioner's report correctly notes, the district court's adjudication of Mr. Duret's habitual offender status under La. R.S. 15:529.1 is not binding on DPSC in determining Mr. Duret's eligibility for parole. See Riggins v. Kaylo, 05-1900 (La. App. 1st Cir. 9/15/06), 943 So.2d 1154, 1155-56.
1. See Exh. A.
2. 681 So.2d 951 (La. 1996), wherein the Supreme Court held that the Department is not bound by the Trial Court's adjudication of offender status under R.S. 15:529.1 when it determines parole eligibility under R.S. 15:574.4, and it may consider all convictions, not just those considered by the Trial Court.
3. Id. @ pp 952-53.

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