Opinion
2022 CA 0376
11-04-2022
BIENVILLE DAVIS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
Jonathan R. Vinning Baton Rouge, Louisiana Counsel for Defendant-Appellee Louisiana Department of Public Safety and Corrections Bienville Davis Petitioner-Appellant Baton Rouge, Louisiana Pro Se
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA NUMBER 703484, SECTION 21 HONORABLE RONALD R. JOHNSON, JUDGE
Jonathan R. Vinning Baton Rouge, Louisiana Counsel for Defendant-Appellee Louisiana Department of Public Safety and Corrections
Bienville Davis Petitioner-Appellant Baton Rouge, Louisiana Pro Se
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
Petitioner, Bienville Davis, appeals a district court judgment dismissing his petition for judicial review on the grounds of mootness. We affirm, FACTS AND PROCEDURAL HISTORY
Petitioner was sentenced to serve concurrent fifteen-year sentences for two counts of armed robbery and a consecutive twenty-year sentence for attempted second-degree murder in the custody of the Louisiana Department of Public Safety and Corrections (DPSC). He filed Administrative Remedy Procedure (ARP) EHCC-2020-717 contending DPSC and the sentencing court erred in not giving credit on all of his sentences, including the consecutive sentence, for his pre-sentence jail time. In support of his position, petitioner cited this court's decision in Boddye v. Louisiana Department of Corrections, 14-1836 (La.App. 1st Cir. 6/26/15), 175 So.3d 437, writ denied, 15-1688 (La. 10/30/15), 180 So.3d 303. In Boddye, this court held the inmate was entitled to overlapping credits on each of his consecutive sentences for his pre-sentence jail time where he had pled guilty pursuant to a plea agreement and the sentencing court specifically granted him credit for time served on each of his consecutive sentences, even though the sentences imposed were illegal under La. C.Cr.P. art. 880(E). Id. at 441-42.
This provision states: "A defendant shall not receive overlapping jail credit, except in the instance of concurrent sentences and then only for time spent in jail on the instant felony."
In its first-step response, dated October 19, 2020, DPSC granted Davis' ARP, stating:
In reviewing your time computation and your minutes on both dockets, the jail credits on your consecutive sentence per Boddye [v. Louisiana Department of Corrections] stating "If the Court Minutes/Uniform Commitment Order for each consecutive sentence say 'credit for time served' or notated in some way to give credit for time served, then the offender is entitled to the overlapping jail credit..." were applied. Recalculation was completed and a copy of the master prison rap sheet is attached for your viewing.
Your request for Administrative Remedy has been GRANTED.
Davis contends no copy of the amended master prison rap sheet was attached to the first-step response he received, and he did not receive a copy until at least a week later. He claims he discovered at that time that his release date had not been changed. According to Davis, he filed a second-step request for relief on December 1, 2020, a copy of which is not contained in the record. However, the record does contain a DPSC form addressed to Davis, dated December 4, 2020, stating his ARP was accepted in error because it was a duplicate request involving the same issue previously addressed in ARP # EHCC-2020-717. Davis maintains the ARP referred to by DPSC was actually his second-step request.
On January 11, 2021, Jenkins filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) seeking review of DPSC's decision. In the petition, Davis claimed DPSC never recalculated his release date to reflect the jail credits he was granted in DPSC's first-step response. Davis also made an additional claim that since he committed his offenses in 1997, his sentences should be classified under Act 138 (for purposes of good-time credits under La. R.S. 15:571.3), but that DPSC has instead misclassified his sentences under Act 150, thereby improperly increasing the penalty against him. Davis contends he raised this claim in his second-step request, a copy of which is not included in the appellate record.
Louisiana Acts 1994, No. 150, § 1, amended La. R.S. 15:571.3 to provide that diminution of sentence (good time) was not allowed to inmates convicted a second time of a crime of violence as defined by La. R.S. 14:2(B). See Johnson v. Department of Public Safety, 14-0335 (La.App. 1st Cir. 11/7/14) (unpublished), 2014 WL 5800470, at *1, n.1.
Appellate courts are courts of record and may not review evidence not contained in the record. See La. C.C.P. art. 2164; Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88.
After reviewing the petition in accordance with the screening requirements of La. R.S. 15:1178 and 15:1188, a 19th JDC commissioner ordered that DPSC be served with the petition and file any response thereto within thirty days. DPSC initially filed an exception of lack of subject matter jurisdiction alleging Davis failed to exhaust his administrative remedies. The commissioner overruled DPSC's exception, and in the same order stayed the matter for sixty days and remanded the matter "to the second step respondent for consideration. The Department may file an amended answer within said 60 days.'1 Thereafter, DPSC filed an answer conceding Davis had exhausted all available administrative remedies but requesting his petition be dismissed, with prejudice, since DPSC had granted his ARP. Davis filed a motion for contempt in which he argued DPSC should be held in contempt for failing to comply with the commissioner's order to respond to his second-step request within sixty days. The commissioner denied the motion for contempt.
At a status conference on October 14, 2021, the commissioner advised Davis he should seek separate relief for his complaint concerning his good time classification since that was not the complaint raised in his ARP. Davis thereafter filed a motion for rehearing and/or reconsideration on the grounds the commissioner erred in finding he had not raised the issue of his good time act classification "in the petition [ARP]." The commissioner denied the motion for rehearing. On November 16, 2021, the commissioner issued a written recommendation to the district court to dismiss Davis' petition for judicial review, without prejudice. The commissioner concluded Davis' claims were moot because DPSC had already granted the relief sought in his ARP and, therefore, no further relief was available.
Following a de novo review, the district court signed a judgment on January 11, 2022, adopting the commissioner's written recommendation and dismissing Davis' petition for judicial review, without prejudice. Davis has appealed, arguing in three assignments of error that the district court erred in dismissing his petition for judicial review, in denying his motion for rehearing, and in denying his motion for contempt.
DISCUSSION
On appeal of a district court judgment on a petition for judicial review of DPSC's decision on an ARP, an appellate court reviews the record de novo under the criteria of La. R.S. 15:1177(A)(9), owing no deference to the factual findings or legal conclusions of the district court. See Branch v. Louisiana Department of Public Safety and Corrections, 12-0749 (La.App. 1st Cir. 12/21/12), 111 So.3d 1059, 1060-61. Under La. R.S. 15:1177(A)(9), a reviewing court may reverse or modify an agency 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 agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by an abuse of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
In his ARP, Davis sought credits on his consecutive sentences for pre-sentence jail time pursuant to Boddye v. Louisiana Department of Corrections. DPSC granted those credits to Davis in its first-step response. While Davis contends there was no change in his release date after DPSC granted his ARP, he has provided no evidence supporting this contention. Conversely, DPSC's first-step response indicates Davis was given credits in accordance with Boddye v. Louisiana Department of Corrections and the "[recalculation was completed." Further, the master prison rap sheet reflects it was amended on October 15, 2020, in close temporal proximity to DPSC's first-step response granting Davis' ARP. The rap sheet also contains the following comment: "CREDIT FOR TIME SERVED (BODDYE)."
In her written recommendation, which was adopted by the district court, the commissioner concluded this matter was moot, considering that DPSC had granted Davis credit for his pre-sentence jail time as requested in his ARP. In reaching this conclusion, the commissioner noted Davis apparently had confused the issue of pre-sentence jail credits under Boddye v. Louisiana Department of Corrections with the issue of an inmate's classification for good time purposes under a particular legislative act, which is an entirely separate issue. At the status conference, the commissioner advised Davis he needed to raise the issue of his good time act classification in a separate proceeding.
Based on our thorough de novo review, we find no error in the district court's dismissal of Davis' petition for judicial review on the grounds of mootness. As the commissioner noted, DPSC had already granted Davis all the jail credits he was entitled to receive under Boddye v. Louisiana Department of Corrections. Although Davis contends he also raised an issue as to his alleged good time misclassification in his purported second-step request, as well as in his petition for judicial review, this complaint was not raised in his original ARP and, therefore, was not before the district court on judicial review.
Further, the commissioner did not err in denying Davis' motion for rehearing, which was based on his erroneous contention that the issue of his good time act classification was properly before the district court. We observe that even if Davis had raised the issue of his allegedly erroneous good time classification in his second-step response, there is a prohibition against multiple complaints being raised in a single ARP. See LAC 22:I.325(I)(1)(c)(i)(g); Gibbs v. Leblanc, 13-0454 (La.App. 1st Cir. 11/1/13) (unpublished), 2013 WL 5916718, at *2, writ denied, 14-0376 (La. 10/24/14), 151 So.3d 596; Lewis v. Cain, 324 F.R.D. 159, 166 (M.D. La. 2018). Thus, as the commissioner indicated to him, Davis needed to raise that complaint in a separate ARP.
Lastly, Davis argues the district court erred in denying his motion to hold DPSC in contempt for failing to comply with the commissioner's order to respond to his second-step request within sixty days. Davis argues he should be granted the relief he requested as a result of DPSC's failure to comply with a valid court order, asserting that if he had ignored a court order he would "automatically [be] held in contempt."
A party's wilful disobedience of a lawful court order is a constructive contempt of court. La. C.C.P. art. 224(2). To find a party guilty of constructive contempt, it is necessary to find he violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Moreover, contempt proceedings are designed for the vindication of the dignity of the court rather than for the benefit of a litigant. A trial court is vested with great discretion in determining whether circumstances warrant holding a party in constructive contempt of court for wilful disobedience of a court order. Berthelot v. Berthelot, 17-1331 (La.App. 1st Cir. 7/18/18), 254 So.3d 730, 733.
In this case, Davis sustained no prejudice from DSPC's failure to issue a second-step response, since his ARP was granted at the first step and DPSC conceded in its answer that he had exhausted all available administrative remedies. Even if DPSC failed to comply with the commissioner's order, the commissioner obviously did not find the circumstances warranted a conclusion that DPSC did so intentionally, knowingly and purposefully, without justifiable excuse. Therefore, we are unable to say the denial of Davis' motion for contempt constituted an abuse of discretion.
CONCLUSION
For these reasons, the judgment of the district court dismissing Davis' petition for judicial review, without prejudice, is affirmed. All costs of this appeal are assessed to petitioner, Bienville Davis.
AFFIRMED.