Opinion
2016 CA 0091
09-16-2016
TODD GROSSIE v. DEPT. OF PUBLIC SAFETY AND CORRECTIONS
Todd Grossie Tallulah, Louisiana Plaintiff-Appellant Pro Se William L. Kline Baton Rouge, Louisiana Counsel for Defendant-Appellee Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER C632081, SECTION 22, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE TIMOTHY E. KELLEY, JUDGE Todd Grossie
Tallulah, Louisiana Plaintiff-Appellant
Pro Se William L. Kline
Baton Rouge, Louisiana Counsel for Defendant-Appellee
Louisiana Department of Public
Safety and Corrections BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Petitioner-appellant, Todd Grossie, an inmate in the custody of defendant-appellee, the Department of Public Safety and Corrections (DPSC), appeals the judgment of the Nineteenth Judicial District Court, dismissing without prejudice, his petition for judicial review of an adverse decision from the DPSC for failure to state a cause of action. For the following reasons, we affirm.
On appeal of the district court's judgment, an appellate court reviews the administrative 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 Dep't of Pub. Safety and Corrs., 2012-0749 (La. App. 1st Cir. 12/21/12), 111 So.3d 1059, 1060-61. Section 1177(A)(9) states in pertinent part:
Any offender who is aggrieved by an adverse decision ... by [DPSC] ... rendered pursuant to any administrative remedy procedures ... may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court ... in the manner hereinafter provided:
...
The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law.
(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.
Initially we note that in this appeal, petitioner does not challenge the basis for dismissal of his petition for judicial review for the written reasons articulated by the commissioner in his report. The commissioner concluded that petitioner was not entitled to credit for time served while he was on probation because La. Acts 2010, No. 792, § 1, modifying La. R.S. 15:571.5(C), was a substantive change that could not be retroactively applied. Because petitioner has not challenged this legally correct conclusion, see Rochelle v. LeBlanc , 2010-1901 (La. App. 1st Cir. 5/6/11), 65 So.3d 240, 242-43, it is not subject to appellate review. See La. U.R.C.A. Rule 1-3 (courts of appeal will review only issues contained in specifications or assignments of error).
The gist of petitioner's complaint on appeal is that the district court failed to consider the allegations contained in his Administrative Remedy Procedures Action, HDQ-2014-1273 (ARP). He asserts that the full term date set forth on his DPSC Master Docket is incorrect.
In its Second Step Response to his ARP, DPSC found no error in the calculation. In his petition for judicial review, and the briefs he filed in support of relief, as well in his traversal of the commissioner's report and motion for new trial after issuance of the district court judgment, dismissing his claim without prejudice, petitioner consistently maintained that he is entitled to all credit for time served in custody in conformity with Sixteenth Judicial District Court judge's order at the sentencing hearing of his probation revocation. He averred that his probation was revoked on December 3, 2007, and that the sentencing judge stated he was to serve the remainder of his sentence, consisting of twelve years, with credit for time served.
Our review of the record shows that petitioner was credited with 1,044 days of time spent in jail. On the face of the record, we find no error in DPSC's calculation of a release date. We note, however, that petitioner's master docket expressly advises, "Listed below is the information used to calculate your release dates. ... If all the [information] listed is correct, your release dates are correct. If the listed [information] is incorrect, please contact the arresting agency and request that they provide us with the correct information." Petitioner has not averred that he has complied with this directive.
Attached to petitioner's appellate brief is a confidential case history report issued by DPSC, which is not contained either in the DPSC's mandated filing or elsewhere in the record that was transmitted from the district court. According to the signing representative, petitioner was arrested for forcible rape on March 20, 2002, after allegedly raping a fourteen-year-old victim. Petitioner submits that this document shows an error in calculation of the number of days that he has been credited for time served in jail. As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Moore v. Murphy Oil USA , Inc., 2015-0096 (La. App. 1st Cir. 12/23/15), 186 So. 3d 135, 143, writ denied, 2016-00444 (La. 5/20/16), 191 So. 3d 1066. As such, on our de novo review of the record, we find that on the face of the record, which establishes that petitioner has been credited with 1,044 days of jail credit in the execution of the twelve-year sentence he has been ordered to serve subsequent to the revocation of probation on December 3, 2007, petitioner has failed to prove he is entitled to additional relief.
DECREE
For these reasons, we affirm the district court judgment. Appeal costs are assessed against petitioner-appellant, Todd Grossie.
AFFIRMED.