Opinion
2011 CA 2376
09-21-2012
MARK GIBBS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Mark Gibbs Dequincy, Louisiana Plaintiff/Appellant Pro Se Debra A. Rutledge Baton Rouge, Louisiana Counsel for Defendant/Appellee James M. Leblanc, Secretary, Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 600,190, Section 22
The Honorable Timothy E. Kelley, Judge Presiding
Mark Gibbs
Dequincy, Louisiana
Plaintiff/Appellant
Pro Se
Debra A. Rutledge
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
James M. Leblanc, Secretary,
Louisiana Department of Public
Safety and Corrections
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
HUGHES , J.
Mark Gibbs, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment that affirmed DPSC's decision in an administrative remedy procedure and dismissed his petition for judicial review. For the reasons that follow, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Mr. Gibbs filed a petition for judicial review of the final agency decision of DPSC in Administrative Remedy Procedure No. PCC-2010-0547. Therein, he challenged DPSC's denial of his eligibility for diminution of sentence (good time). Mr. Gibbs pled guilty to the crime of forcible rape, a violation of LSA-R.S. 14:42.1, and was sentenced to 10 years of imprisonment at hard labor. The offense occurred on February 12, 2007; he entered his guilty plea on April 22, 2009.
We note that in the traverse to the commissioner's report, Mr. Gibbs alleged that he pled guilty to aggravated incest. However, the master prison sheet and other pleadings in the record indicate that he pled guilty to forcible rape. Both aggravated incest and forcible rape are listed under LSA-R.S. 15:537. Therefore, the result reached in this opinion would not change regardless of which violation occurred. Pursuant to LSA-R.S. 15:537, Mr. Gibbs is not eligible to earn good time.
Mr. Gibbs was remanded to the custody of DPSC and began serving his sentence. He received a Master Prison Record with a time computation worksheet that indicated he was not eligible to earn good time. Mr. Gibbs filed a request for administrative relief on July 30, 2010, contending that the sentencing court failed to articulate that he was statutorily precluded from earning diminution of sentence pursuant to LSA-R.S. 15:537. As such, he concluded that DPSC had exceeded its authority in applying that statute to his sentence.
Mr. Gibbs pursued the administrative remedy procedure through the required steps, but was denied relief at each level. On March 21, 2011 Mr. Gibbs filed a petition for judicial review of the final decision of DPSC in the Nineteenth Judicial District Court, pursuant to LSA-R.S. 15:1177. The court ordered that the parties submit the case on briefs. After review, the commissioner prepared a recommendation for the district court judge in which she concluded that the DPSC decision was correct and the petition for judicial review should be dismissed. Thereafter, the district court judge accepted the commissioner's recommendation and dismissed Mr. Gibbs's petition with prejudice in a judgment dated September 12, 2011. Mr. Gibbs appeals and assigns error to the interpretation of the relevant statutes, such that he is not eligible to earn diminution of sentence.
Pursuant to LSA-R.S. 15:1171, DPSC has adopted and promulgated administrative remedy procedures for receiving, hearing, and disposing of complaints and grievances by offenders against the state which arise while an offender is within the custody or under the supervision of the DPSC. Under those rules, an offender who disputes a time computation must first submit a written complaint to the warden. LAC 22:I.325(J)(1). If the offender is dissatisfied with the first step response, he may appeal to the secretary of DPSC. LAC 22:I.325(J)(2). Only after he has completed the second step may he seek review by the district court. LSA-R.S. 15:1177; LAC 22:1.325(J)(2)(a).
The office of the commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. LSA-R.S. 13:713. The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. LSA-R.S. 13:713(C)(5).
In the district court, Mr. Gibbs alleged error in the court's failure to apply the "rule of lenity," While not specifically stated as an assignment of error in his appeal, we find that the argument is vaguely referenced in the body of his brief. As such, we note that based on the language of the statute, neither the sentencing court nor the 19th JDC in its appellate capacity had any discretion to grant Mr. Gibbs eligibility for diminution of sentence.
LAW AND ANALYSIS
Louisiana Revised Statutes 15:537, amended by Acts 1999, No. 1209, states, in pertinent part:
A. If a person is convicted of or pleads guilty to, or where adjudication has been deferred or withheld for a violation of R.S. 14:78 (incest), R.S. 14:78.1 (aggravated incest), R.S, 14:80 (felony carnal knowledge of a juvenile), R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.2
(molestation of a juvenile or a person with a physical or mental disability), R.S. 14:81.3 (computer-aided solicitation of a minor), R.S. 14:89(A)(1) (crime against nature), R.S. 14:89.1 (aggravated crime against nature), R.S. 14:93.5 (sexual battery of the infirm), or any provision of Subpart C of Part II of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, 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. (Emphasis added).
B. The court shall sentence a person who has on two or more occasions previously pleaded guilty, nolo contendere, or has been found guilty of violating R.S. 14:42, 42.1, 43, 43.1, 43.2, 43.3, 43.4, 43.5, 78, 78.1, 80, 81, 81.1, 81.2, 89.1, or 107.1(C)(2) to life imprisonment without the benefit of parole, probation, or suspension of sentence.
The offense of forcible rape is listed in Subpart C of Part II of Chapter 1 of Title 14 of the Louisiana Revised Statutes. Thus, under the clear wording of the statute in effect at the time Mr. Gibbs committed his offense, he "shall not be eligible for diminution of sentence for good behavior." It was not necessary that the court reference the wording of the statute applicable to his sentence, DPSC correctly calculated Mr, Gibbs's sentence pursuant to LSA-R.S. 15:537, which was amended in 1999 and in effect at the time Mr. Gibbs committed the offense, as well as at the time that he was sentenced.
This is not a matter of first impression. This court has previously held that a sentencing court's failure to articulate a statutory denial of entitlement to diminution of sentence in pronouncing sentence is irrelevant. Jackson v. Phelps, 506 So.2d 515, 518 86-0633 (La. App. 1 Cir. 1987), writ denied, 508 So.2d 829 (La. 1987), Nicholas v. Phelps, 521 So.2d 636, 637 (La. App. 1 Cir. 1988). We can find no basis for Mr. Gibbs's argument that he should be eligible for diminution of sentence simply because the sentencing court did not specifically reference the statute, applicable as a matter of law, in pronouncing his sentence.
CONCLUSION
For the foregoing reasons, Mr. Gibbs is statutorily ineligible to earn diminution of sentence pursuant to LSA-R.S. 15:537(A). The sentencing court's failure to articulate that ineligibility is irrelevant. The judgment of the district court dismissing Mr. Gibbs's claim with prejudice is affirmed. All costs of this appeal are to be assessed against plaintiff/appellant, Mr. Mark Gibbs.
AFFIRMED.