Opinion
2013 CA 0508
02-28-2014
STEPHEN LANPHIER v. JAMES LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, ET AL.
Stephen Lanphier Pine Prairie, LA Plaintiff-Appellant In Proper Person William L. Kline General Counsel Baton Rouge, LA Attorney for Defendant-Appellee Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court
Parish of East Baton Rouge, Louisiana
Docket No. 608,353, Section 25
Honorable Wilson E. Fields, Judge Presiding
Stephen Lanphier
Pine Prairie, LA
Plaintiff-Appellant
In Proper Person
William L. Kline
General Counsel
Baton Rouge, LA
Attorney for
Defendant-Appellee
Louisiana Department of Public
Safety and Corrections
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
application of the law. According to Mr. Lanphier, second degree sexual battery did not become a crime of violence or a sex crime until 2004, when LSA-R.S. 14:43.2 was amended by 2004 La. Acts., No. 676, § 1 (Act 676). The 2011 ARP was rejected at the administrative level, because the issues had already been resolved in his 2008 ARP.
The crime for which Mr. Lanphier is currently imprisoned was committed in 2003.
Mr. Lanphier then filed a petition for judicial review with the district court. After reviewing the 2011 ARP in accordance with the confines of LSA-R.S. 15:1177(A)(5) and (9), the commissioner of the 19th Judicial District Court issued a report recommending that DPSC's decision to reject the 2011 ARP as a duplicate of the 2008 ARP should be affirmed and the appeal dismissed, with prejudice. After a de novo review of the record, the district court signed a judgment on December 21, 2012, adopting the written recommendation of the commissioner and dismissing the appeal, with prejudice. It is from this judgment that Mr. Lanphier has appealed.
DISCUSSION
The ARP has been established to allow an offender to seek formal review of a complaint that relates to any aspect of his incarceration if less formal methods have not resolved the matter. LAC 22:1.325(D)(2). Once a request for an administrative remedy has been filed, the ARP screening officer shall screen all requests prior to assignment to the first step. LAC 22:I.325(I)(1). A request may only be rejected for one of the reasons enumerated in the rules, including that the request is a duplicate request. See LAC 22:I.325(I)(1)(a)(ii)(c).
In this case, Mr. Lanphier filed two ARPs, each seeking to have his release date calculated to include the good time credits he believed he had earned. Although the basis for the claim was different in each ARP, each of his claims sought the same result. Therefore, the 2011 ARP was clearly a duplicate of the 2008 ARP, and we find no error in the district court's decision not to consider it.
In 2008, he claimed that he was entitled to good time credits because the sentencing judge had told him he would only have to serve 85% of his sentence, and in 2011, he contended that application of Act 1209 to his sentence would result in an ex post facto application of the law to his crime.
In addition to discussing the fact that the 2011 ARP was a duplicate of the earlier ARP, the commissioner's report also addressed the merits of the 2011 ARP in the alternative. As noted previously, Mr. Lanphier contended that he was arrested in 2003 and charged with aggravated rape. However, in 2005, he pled guilty to the crime of second degree sexual battery, which, according to Mr. Lanphier, did not become a sex crime until 2004, when LSA-R.S. 14:43.2 was amended by Act 676. Thus, Mr. Lanphier claimed that it would be an ex post facto application of the law to apply Act 1209 to deprive him of good time credits under these circumstances.
The Louisiana Supreme Court has held that in order for a criminal or penal law to fall within the ex post facto prohibition, the focus is on whether any change in the law has altered the definition of criminal conduct or increased the penalty by which the crime was punishable. State ex rel Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d 735, 743-44, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 LEd.2d 730, and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Based on the supreme court's holding, Mr. Lanphier's argument is misplaced.
On August 21, 2003, the time of the commission of Mr. Lanphier's crime, LSA-R.S. 14:43.2 provided for the offense of aggravated sexual battery. In addition, LSA-R.S. 15:537(A) provided:
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), 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).As a provision falling within Subpart C of Part II, of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, LSA-R.S. 14:43.2 met the requirements of LSA-R.S. 15:537(A), and a person convicted of such an offense was not eligible for diminution of sentence for good behavior.
Pursuant to Act 676, LSA-R.S. 14:43.2 was amended to rename the offense of aggravated sexual battery to second degree sexual battery. Nothing else in the statute was amended. The definition of the offense and the penalties remained the same. Furthermore, the statute remained in Subpart C of Part II, of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950 and was, therefore, still within the parameters of LSA-R.S. 15:537(A) as an offense that was not eligible for diminution of sentence for good behavior. In other words, Act 676 did nothing but change the name of the offense from aggravated sexual battery to second degree sexual battery. Thus, there is no ex post facto application of the law in this matter, and we find no error in the district court's judgment dismissing Mr. Lanphier's appeal of DPSC's final decision.
DECREE
After a thorough review of the record, we find no error in the judgment of the district court. Accordingly, we affirm the judgment of the district court. All costs of this appeal are assessed to the plaintiff, Stephen Lanphier.
AFFIRMED.