Opinion
NO. 2013 CA 0953
01-07-2014
ALAN V. LEE v. DEPARTMENT OF CORRECTIONS, ELAYN HUNT CORRECTIONAL CENTER
Alan Victor Lee St. Gabriel, Louisiana Plaintiff/Appellant Pro Se William L. Kline Baton Rouge, Louisiana Counsel for Defendant/Appellee James M. LeBlanc, Secretary, Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C611540
The Honorable, Kay Bates, Judge Presiding
Alan Victor Lee
St. Gabriel, Louisiana
Plaintiff/Appellant
Pro Se
William L. Kline
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
James M. LeBlanc, Secretary,
Louisiana Department of Public
Safety and Corrections
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
THERIOT, J.
Appellant, Alan V. Lee, seeks reversal of the judgment rendered in the Nineteenth Judicial District Court (19 JDC) which upheld the denial of administrative relief by the Department of Public Safety and Corrections (DPSC). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Lee was placed on a parole detainer after having been charged with federal crimes. Lee filed an administrative remedy procedure (ARP) with DPSC on December 26, 2011, in which he complained that the calculation of time he must serve on his parole violation was incorrect. Lee argued that pursuant to La. R.S. 15:574.10, his parole was deemed revoked on the date he committed the new felony, which he claimed was September 13, 2005, but that the credit toward his parole violation sentence was being calculated from January 14, 2009, the day he pled guilty.
In DPSC's first step response to the ARP, Lee's relief was denied on the basis that his jail credit began on December 18, 2008, when a parole detainer was placed on him. The second step response was in agreement with the first response and denied the relief Lee requested. Lee filed for judicial review with the 19 JDC.
On May 29, 2012, DPSC issued an amended second step response for the purpose of clarifying the denial of Lee's relief. In this amended response, DPSC stated that Lee could not receive jail credit on his parole revocation until he was physically detained and jailed, similar to the way an offender cannot receive credit for time served on a sentence until he begins to serve time in jail in relation to that offense. Since Lee was detained on December 18, 2008, his jail credit was to begin on that date.
The 19 JDC accepted the amendment over Lee's objection that it improperly expanded the record and that his legal argument was in response to DPSC's original reason for denying him relief. Lee further noted that he was not given an opportunity to answer DPSC's amended second response. DPSC responded to Lee's objection by asserting that the amended second response did not introduce any new legal or factual issues, but simply clarified what was already before the court in the record. The 19 JDC dismissed Lee's appeal with prejudice on March 18, 2013, and Lee timely filed the instant appeal.
ASSIGNMENT OF ERROR
Lee contends that his credit toward his sentence was erroneously calculated. Specifically, he contends credit shall be calculated from the date his parole was revoked. Lee further contends DPSC's amended second response should have been stricken from the record.
STANDARD OF REVIEW
Louisiana Revised Statutes 15:1177 sets forth the appropriate standard for judicial review of administrative decisions by DPSC and limits judicial review to issues presented in the petition for judicial review and the administrative remedy request. McCoy v. Stalder, 1999-1747, pp. 6-7 (La. App. 1 Cir. 9/22/00), 770 So.2d 447, 451. Furthermore, a reviewing court may reverse or modify the administrative 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 abuse of discretion, or (6) manifestly erroneous in view of the reliable, probative substantial evidence on the whole record. Id.; La. R.S. 15:1177(A)(9).
DISCUSSION
Both Lee and DPSC are in agreement with the meaning of the language found in La, R.S. 15:574.10, i.e., that upon the commission of a new felony, parole is deemed revoked as of the date of the commission of the new felony. Lee is correct that his parole was revoked in September of 2005. However, the statute must be read in conjunction with La. R.S. 15:574.9(E), which dictates how the parole violator's sentence is to be served; the parolee shall be given credit for time served in jail prior to the revocation hearing.
According to La. R.S. 15:574.9(E), when a parolee commits a new felony, time served in jail is credited toward the sentence on the new felony and not parole, pursuant to La. Code Cr. P. art. 880. The record does not indicate that Lee served any time in jail in relation to his commission of mail fraud on September 13, 2005 until his conviction on January 14, 2009. Louisiana Code of Criminal Procedure article 880, which addresses sentencing in general, states that a defendant shall receive credit toward service of his sentence for time spent in actual custody prior to imposition of sentence. Since Lee received a jail sentence for violating his parole, and since he spent time in jail on a parole detainer prior to the revocation hearing, we find that La. Code Cr. P. art. 880 requires that Lee receive credit on his parole sentence for the time he spent in jail stemming from the parole detainer of December 18, 2008.
As for Lee's objection to DPSC's amended second response, we find that it did not alter the facts or legal issue of the instant case, but rather served as a clarification. Lee was not prejudiced by the amended second response, and Lee never gave a sufficient explanation as to how the amended second response had prejudiced him.
CONCLUSION
The 19 JDC was not manifestly erroneous in its dismissal of Lee's petition for judicial review, DPSC was not in violation of La. R.S. 15:1177(A)(9) in denying the relief Lee requested. The record shows Lee was arrested and jailed for a parole violation on December 18, 2008, and it is from this date that his jail credit began to run,
DECREE
The judgment of the 19 JDC to dismiss with prejudice Alan Lee's petition for judicial review is affirmed. All costs of this appeal are assessed to the appellant, Alan Lee.
AFFIRMED.