Opinion
NO. 2022 CA 0869.
12-22-2022
Alan V. BRUMFIELD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et. al.
Alan Brumfield, Homer, LA, Petitioner-Appellant, Pro Se. Jonathan R. Vining , Baton Rouge, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections. BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
Alan Brumfield, Homer, LA, Petitioner-Appellant, Pro Se.
Jonathan R. Vining , Baton Rouge, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections.
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ. HESTER, J.
Petitioner, Alan Brumfield, appeals the judgment of a district court dismissing his petition for judicial review with prejudice and affirming the administrative decision of the Louisiana Department of Public Safety and Corrections (DPSC). We reverse and render.
FACTS AND PROCEDURAL HISTORY
Pursuant to a grand jury indictment, petitioner was charged with the offense of second-degree murder, which act was committed or about October 13, 2013. Petitioner pled guilty on March 7, 2017 to the reduced charge of manslaughter and was sentenced to serve twenty-four years in the custody of DPSC, with credit for time served.
Petitioner was also charged with one count of home invasion and one count of second-degree kidnapping, which counts were dismissed pursuant to a plea agreement.
Petitioner later initiated an administrative remedy procedure (ARP), bearing number 2017-1201 (ARP-1201), and sought judicial review of ARP-1201 in the case entitled, Alan Virgil Brumfield DOC #720566 v. Department of Corrections et al., Docket No. 675,819, 19th Judicial District Court, Parish of East Baton Rouge. However, the petition for judicial review was dismissed as moot and without prejudice on July 3, 2019. According to petitioner, ARP-1201 related to the issue of whether his parole eligibility date should be calculated at 85% or 75%. Petitioner indicated that, in the judicial review action of ARP-1201, DPSC conceded to his request that his parole eligibility date should be calculated at 75% under Act 509, which was passed by the Legislature in the 2016 Regular Session.
Act 509 refers to 2016 La. Acts 509, Section 3 of Act 509, provided, in pertinent part, that La. R.S. 15:574.4(B)(1) was amended and reenacted to read as follows (with words in struck through type indicating deletions from existing law and words underscored indicating additions):
B.(1) ... Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at leasteighty fiveseventy-five percent of the sentence imposed, before being eligible for parole.
Subsequently, petitioner initiated the ARP presently at issue on October 18, 2021, bearing number 2021-0817 (ARP-0817), in which he alleged that "proper procedures [we]re not being applied regarding his parole eligibility date." According to petitioner, his master prison record was incorrect, as his parole eligibility date should be calculated at 65% pursuant to Act 122, which was made effective on August 1, 2021. Petitioner attached correspondence from Assistant Warden Brenda Acklin to ARP-0817, which stated that petitioner was not eligible for Act 122 because the length of his sentence made him ineligible.
Act 122 refers to 2021 La. Acts 122, § 1 in which La. R.S. 15:574.4(A)(2) and (B)(1) were amended and reenacted, in pertinent part, as follows (with words in struck through type indicating deletions from existing law and words underscored indicating additions):
A.
* * *
(2) ... The provisions of this Paragraph shall not apply to any person who has beenconvicted under the provisions of R.S., 14:64. The provisions of this Paragraph shall not apply to any person who has been convictedof a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 when the offense was committed on or after August 1, 2014 .
...
A. (1) No person shall be eligible for parole consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S. 14:64... Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least sixty-five percent of the sentence imposed, before being eligible for parole....
A copy of Act 122 of the 2021 Regular Session was attached to the correspondence sent to petitioner.
On October 28, 2021, a first-step response was issued by DPSC, which stated as follows:
Dept. Regulation IS-B-6 (B-04-004) 8.C states that an offender serving a sentence for a crime of violence which was committed on or after January 1, 1997 but before August 1, 2016, must serve 85% of the sentence imposed before being eligible for parole. According to the Bill of Information for Natchitoches Dkt. C20890, you committed your offense on or about October 13, 2013 which means you must fulfill the 85% requirement. Your PED was miscalculated at the 75% rate on February 7, 2019. I have now corrected it to reflect the 85% requirement.
The 75% parole consideration you referred to in your ARP applies to those whose crime of violence was committed on or after August 1, 2016 but before November 1, 2017. The 65% parole eligibility rule applies only to those who committed the offense or whose probation or parole is revoked on or after November 1, 2017 and who have no prior convictions for a crime of violence or felony sex offense.
An excerpt of the Department Regulation dated November 1, 2017, the bill of indictment and minutes in docket number C20890 from Natchitoches Parish, the uniform commitment order, and petitioner's master prison record were attached to the first-step response.
Petitioner submitted his second-step request for relief on October 30, 2021, alleging that Department Regulation IS-B-6 (B-04-004) was in error and that, under the provisions of Act 509, anyone convicted of a crime of violence after August 1, 2016 is eligible for parole consideration after serving 75% of their sentence, regardless of the date the offense was committed. Petitioner further argued that Act 122 does not mention any date and states that anyone convicted of a crime of violence and eligible for parole shall serve 65% of the sentence imposed before parole consideration. Petitioner's second-step relief was denied on November 15, 2021.
On January 7, 2022, petitioner filed a petition for judicial review in the 19th Judicial District Court (19th JDC) seeking review of DPSC's decisions. Petitioner noted that he filed an ARP requesting a 65% parole eligibility date calculation based on Act 122, and was told that he must fulfill the 85% parole eligibility date calculation of Act 1099. Petitioner maintains that neither Act 122 nor La. R.S. 15:574.4(B)(1) make any mention of a date such that DPSC's reliance on the date of the commission of the offense is misplaced. According to petitioner, the language of La. R.S. 15:574.4 references the date of conviction and not the date the offense was committed. Petitioner further argues that Department Regulation IS-B-6 (B-04-004) 8.C is contrary to law (Acts 509 and 122) and cannot be enforced. Moreover, petitioner submits that DPSC's reversal of its "position of petitioner's 75% parole consideration after filing an Exception of Lack of Subject Matter Jurisdiction to induce this Honorable Court to dismiss the prior suit, should be considered an act of fraud on this court."
Act 1099 refers to 1995 La. Acts 1099, § 1, effective January 1, 1997, which amended and reenacted La. R.S. 15:574.4(B) to require that persons convicted of a crime of violence serve 85% of their sentence prior to being eligible for parole.
DPSC answered the petition and denied the claims made by petitioner. Specifically, DPSC stated that "as a violent offender with an October 13, 2013 offense date, [petitioner] must serve 85% of his sentence before gaining eligibility for parole release."
Thereafter, the 19th JDC commissioner, in accordance with the procedures set forth in La. R.S. 15:1177 through 1179, issued a report in which she recommended that petitioner's judicial review action be dismissed with prejudice and the DPSC's decision be affirmed. Relying exclusively on Department Regulation IS-B-6 (B-04-004) 8.C, the 19th JDC commissioner stated that "an offender serving a sentence for a crime of violence, which was committed on or after January 1, 1997 but before August 1, 2016, must serve 85% of the sentence imposed before being eligible for parole." The 19th JDC commissioner, therefore, concluded DPSC correctly determined that petitioner must serve 85% of his sentence before he is eligible for parole consideration. Thereafter, the district court affirmed DPSC's decision and dismissed petitioner's judicial review action with prejudice in a judgment dated April 8, 2022. It is from this judgment petitioner appeals.
The office of the 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. The commissioner's written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. Hakim-El-Mumit v. Stalder, 2003-2549 (La. App. 1st Cir. 10/29/04), 897 So.2d 112, 113 n.1.
LAW AND ANALYSIS
Louisiana Revised Statutes 15:1177(A)(9) sets forth the appropriate standard of review by the district court, which functions as an appellate court when reviewing DPSC's administrative decisions. Judicial review shall be conducted by the district court without a jury and must be confined to the record. La. R.S. 15:1177(A)(5). Specifically, the district court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative 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 or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9); Wallace v. LeBlanc, 2017-1551 (La. App. 1st Cir. 6/21/18), 255 So.3d 613, 615, writ denied, 2018-1322 (La. 5/28/19), 273 So.3d 312. On review of the district court's judgment under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Wallace, 255 So.3d at 616.
Petitioner asserts that Department Regulation IS-B-6 (B-04-004) 8.C is incongruous with La. R.S. 15:574.4 and that DPSC applied an incorrect version of La. R.S. 15:574.4(B) in calculating his parole eligibility date. Parole eligibility is generally governed by the date of commission of the offense. Tarver v. Louisiana Dep't of Pub. Safety & Corr., 2020-1126 (La. App. 1st Cir. 5/12/21), 326 So.3d 297, 303 (relying on State v. Johnson, 98-0427 (La. 7/2/98), 721 So.2d 901; Billard v. Kling, 2010-0352 (La. App. 1st Cir. 2/11/11), 2011 WL 497175, at *1 n.1, writ denied, 2011-0406 (La. 3/2/12), 83 So.3d 1033. Applying the general rule to petitioner, whose offense was committed on October 13, 2013, the applicable version of La. R.S. 15:574.4(B), as modified by Act 1099, provided that persons convicted of a crime of violence must serve at least 85% of their sentence prior to being eligible for parole.
Pursuant to Section 2 of Act 1099, the act became effective on January 1, 1997. Section 3 of Act 1099 specifically states that the "provisions of this Act shall apply only to persons convicted of offenses on or after the effective date of this Act."
However, by the time petitioner pled guilty on March 7, 2017 and was sentenced on March 14, 2017, La. R.S. 15:574.4(B)(1) had been amended by Act 509, made effective on August 1, 2016, and provided that "persons convicted of a crime of violence and not otherwise ineligible for parole shall serve at least seventy-five percent of the sentence imposed, before being eligible for parole." Section 3 of Act 509 amended and reenacted the relevant portion of La. R.S. 15:574.4(B)(1) by substituting "seventy-five" for "eighty-five." Section 6 of Act 509 explicitly provided that "[t]he provisions of Sections 3 and 5 of this Act shall have prospective application only and shall apply only to persons convicted on or after the effective date of this Act." (Emphasis added.) Therefore, petitioner, who pled guilty and was sentenced on March 7 and 14, 2017, was a "person[] convicted on or after the effective date" of Act 509.
These are the dates reflected in the uniform commitment order and the minutes in docket number C20890 from Natchitoches Parish; however, we note that petitioner's master prison record reflects that his sentence date was March 7, 2017.
Subsection B of La. R.S. 15:574.4 became Subsection B(1) through 2012 La. Acts 401, § 1, which added Subsection B(2).
We find that the version of La. R.S. 15:574.4(B)(1), as amended by Act 509, in effect at the time of petitioner's conviction in March of 2017 is applicable to petitioner. Louisiana Revised Statutes 15:574.4(B)(1) stated, in pertinent part, "Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least seventy-five percent of the sentence imposed, before being eligible for parole." Accordingly, petitioner must serve 75% of the sentenced imposed prior to being eligible for parole consideration. See Bosworth v. Whitley, 627 So.2d 629, 631 (La. 1993) (parole eligibility, which is determined by the sentence, and eligibility for parole consideration, which is dependent on meeting certain criteria and conditions specified by statute, are closely regulated by the Legislature).
While petitioner argued in ARP-0817 and in his petition for judicial review that Act 122 further reduced the amount of time he was required to serve to 65%, we note that 2017 La. Acts No. 280, § 3, effective November 1, 2017, reduced the applicable requirement from 75% to 65% of the sentenced imposed and is the operative legislative amendment. Relative to the amount of time required to be served prior to being eligible for parole, Act 280 constituted a substantive amendment and contained no expression that it is to be applied retroactively. In the absence of contrary legislative expression, substantive laws apply prospectively only and procedural and interpretive laws apply both prospectively and retroactively. La. Civ. Code art. 6; see Tarver, 326 So.3d at 303. Pursuant to La. R.S. 1:2, "[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated." Accordingly, Act 280 can only be applied prospectively and does not apply to petitioner who committed his offense over four years prior and was convicted eight months prior to Act 280's effective date.
We further find that DPSC's exclusive reliance on Department Regulation IS-B-6 (B-04-004) 8.C, providing that "[o]ffenders who are serving a sentence for a crime of violence ... committed on or after January 1, 1997 but before August 1, 2016, and otherwise eligible for parole, must serve eighty[-]five percent of the sentence imposed, before receiving any parole consideration being eligible for parole consideration [sic]" is in error as to petitioner herein, as its terms conflict with the conditions and criteria set forth by the Legislature in Act 509. Petitioner's eligibility for parole consideration is to be determined pursuant to La. R.S. 15:574.4. See St. Amant v. 19th Judicial Dist. Court, 94-0567 (La. 9/3/96), 678 So.2d 536.
Even when the legislature has properly delegated to an agency certain administrative or ministerial authority, the regulations promulgated by the agency may not exceed the authorization delegated by the legislature. State v. Domangue, 93-1953 (La. App. 1st Cir. 12/22/94), 649 So.2d 1034, 1038.
Moreover, we have noted that, in determining parole eligibility dates, DPSC looks to the applicable statutory criteria set out in La. R.S. 15:574.4, and administers these standards and criteria by applying them, as well as other relevant statutes and interpretative jurisprudence, to determine whether or not a particular inmate is parole eligible, i.e., eligible for parole consideration by the board. See State v. Simmons, 2020-0695 (La. App. 1st Cir. 6/4/21), 327 So.3d 542, 545 n.5.
Upon our de novo review, we conclude that DPSC's determinations as to the percentage of sentence petitioner must serve prior to being eligible for parole consideration were in violation of applicable statutory provisions and affected by error of law.
CONCLUSION
For the above and foregoing reasons, the April 8, 2022 judgment affirming the decision of the Department of Public Safety and Corrections and dismissing Alan Brumfield's judicial review action with prejudice is reversed, and we hereby render judgment in favor of Alan Brumfield and against the Department of Public Safety and Corrections, ordering the Department of Public Safety and Corrections to amend Alan Brumfield's records to reflect that 2016 La. Acts 509 §§ 3 and 6 apply to his rate for parole eligibility consideration at seventy-five percent in accordance with the terms of Act 509. Costs of this appeal in the amount of $808.00 are assessed to the Department of Public Safety and Corrections.