Opinion
2018 CA 1286
04-12-2019
LORENZO HOGAN v. LOUISIANA DEPARTMENT OF CORRECTIONS SECRETARY JAMES LEBLANC
Lorenzo Hogan Homer, Louisiana Petitioner - Appellant In Proper Person Susan Wall Griffin 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 660778, SECTION 27, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE TODD W. HERNANDEZ, JUDGE Lorenzo Hogan
Homer, Louisiana Petitioner - Appellant
In Proper Person Susan Wall Griffin
Baton Rouge, Louisiana Counsel for Defendant - Appellee
Louisiana Department of Public Safety
and Corrections BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Petitioner, Lorenzo Hogan, is an inmate in the custody of the Department of Public Safety and Corrections (DPSC). He appeals a district court judgment affirming the decision of DPSC denying him credit on his sentence for the time he served out-of-state and dismissing his petition for judicial review, with prejudice. For the following reasons, we affirm.
In 2001, Mr. Hogan was incarcerated in Louisiana as a habitual offender, serving a ten-year sentence for unauthorized use of a motor vehicle. While serving as a trustee, he escaped from DPSC custody on August 9, 2001, by walking away from his outside work assignment. In March 2002, Mr. Hogan was arrested in Texas on a charge of aggravated kidnapping. He was ultimately convicted of kidnapping and sentenced to two years in prison. After being notified of Mr. Hogan's arrest by Texas authorities, DPSC requested that a detainer be placed on Mr. Hogan and advised that he would be extradited to Louisiana when ready for pickup from Texas.
According to Mr. Hogan, Texas authorities notified DPSC several times in 2004 that he was ready for pickup, but DPSC failed to extradite him. Mr. Hogan was "released into society" in March 2004 upon completion of his Texas sentence. On June 23, 2005, Mr. Hogan was again arrested in Texas, this time for possession of a large quantity of marijuana. Subsequently, he was convicted of possession of marijuana and sentenced as a habitual offender to thirty-three years in prison. After serving several years on that sentence, Mr. Hogan was paroled in Texas. In July 2016, he was returned to DPSC custody in Louisiana to begin serving the remainder of his ten-year sentence for unauthorized use of a motor vehicle.
In March 2017, Mr. Hogan filed a request for administrative relief (ARP), DWCC-2017-0248, requesting credit on his Louisiana sentence for the ten and one-half years he served in Texas prison. Mr. Hogan was denied relief by the institution (first step), as well as by the Secretary of DPSC (second step). Thereafter, he filed a petition for judicial review in the 19th Judicial District Court (JDC), reiterating his claim that he was entitled to credit on his Louisiana sentence for the time he served in Texas because it "was not his fault that [DPSC] did not comply with the extradition process" when he was released in 2004. Additionally, Mr. Hogan alleged for the first time in his petition for judicial review that he was also entitled to credit for the time he remained at large from 2004 to 2005, based on the fact that DPSC did not extradite him back to Louisiana at that time.
The matter was assigned to a 19th JDC Commissioner, who issued a report recommending that DPSC's decision be affirmed and Mr. Hogan's petition be dismissed, with prejudice. The Commissioner concluded Mr. Hogan had failed to provide any evidence that DPSC's decision "was arbitrary, capricious, manifestly erroneous, or in violation of [Mr. Hogan's] statutory or constitutional rights." After a de novo review of the record, the district court affirmed DPSC's decision and dismissed Mr. Hogan's petition for review, with prejudice. Mr. Hogan now appeals, raising four assignments of error.
The office of the Commissioner of the Nineteenth Judicial District Court 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 , 03-2549 (La. App. 1st Cir. 10/29/04), 897 So.2d 112, 113, n.1.
DISCUSSION
On appeal of the district court's judgment, 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. Section 1177(A)(9) states, in pertinent part:
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.
Mr. Hogan contends the Commissioner erred in finding that he was seeking credit for the time he served in Texas prison. He asserts his request was actually to "receive credit for the time he was not in the custody of [DPSC] due to the State of Louisiana officials['] failure and/or refusal to return him to [DPSC] to complete his 2001 sentence."
A review of Mr. Hogan's ARP reveals he asserted therein that he "should be credited and awarded the 10 ½ [years] he served in the Texas prison system" and specifically requested that he be given credit for that particular period of time. Thus, the Commissioner did not err in construing the relief Mr. Hogan sought in his ARP as being credit for the time he served in Texas prison.
Mr. Hogan asserted in his petition for judicial review that he was also entitled to credit for the time from 2004 to 2005 when he remained at large in Texas. However, Mr. Hogan did not raise this issue in his ARP. Appellate courts will not consider issues raised for the first time on appeal. Jackson v. Home Depot , Inc., 04-1653 (La. App. 1st Cir. 6/10/05), 906 So.2d 721, 725. Further, La. R.S. 15:1177(A)(5) specifically limits judicial review of DPSC administrative decisions to "the issues presented in the petition for review and the administrative remedy request filed at the agency level." See Deemer v. Ramsey , 08-1661 (La. App. 1st Cir. 2/13/09), 2009 WL 368524 at *3 (unpublished), writ denied, 09-0808 (La. 1/29/10), 25 So.3d 827. Therefore, the only issue properly before this court is whether Mr. Hogan is entitled to credit on his Louisiana sentence for the time he served in Texas prison. --------
Generally, credit for time spent while serving a sentence under a conviction in one jurisdiction will not be allowed against a sentence upon another conviction in a different jurisdiction. See State ex rel. George v. Hunt , 327 So.2d 375, 377 (La. 1976); State v. Barnes , 590 So.2d 1298, 1302 (La. App. 1st Cir. 1991). Of course, where a detainer and warrant issued by Louisiana authorities is responsible for confinement in a foreign jurisdiction, credit will be allowed. State v. Duncan , 396 So.2d 297, 300 (La. 1981); State ex rel. George , 327 So.2d at 377. In the instant case, Mr. Hogan's confinement was not caused by a Louisiana detainer, but by his conviction for an offense he committed in Texas.
Nor is Mr. Hogan entitled to credit for the time he served in Texas under La. C.Cr.P. art. 883.1. This provision authorizes a sentencing court in another state to "specify that the sentence imposed be served concurrently with a sentence imposed by a ... court of any other state and that service of the concurrent terms of imprisonment in ... a correctional institution of another state shall be in satisfaction of the sentence imposed in this state in the manner and to the same extent as if the defendant had been committed to [DPSC]." See Dorman v. Ward , 97-1662 (La. App. 1st Cir. 6/29/98), 718 So.2d 474, 476, writ denied, 98-2497 (La. 4/23/99), 740 So.2d 647 (defendant was entitled to credit on his Louisiana sentence for the time he served in Florida since the Florida court expressly ordered that the Florida and Louisiana sentences be served concurrently). In the instant case, the sentencing court in Texas did not specify that Mr. Hogan's Texas sentence run concurrent with his Louisiana sentence.
Finally, we find no merit in Mr. Hogan's argument that he alleged sufficient facts to support a conclusion that the State of Louisiana "has shown such a lack of interest [in extraditing him from Texas] that it would be inconsistent with fundamental principles of liberty and justice to require [Mr. Hogan] to serve the 2001 sentence." The record contradicts Mr. Hogan's contention that DPSC showed a lack interest prior to 2016 in extraditing him to Louisiana to complete his sentence. Specifically, this contention is contradicted by the fact that, upon notification of Mr. Hogan's 2002 arrest in Texas, DPSC requested a hold and advised that Mr. Hogan would be extradited to Louisiana when ready for pickup. It is true that Mr. Hogan was not extradited to Louisiana upon his release from Texas custody in 2004. Nevertheless, there is insufficient evidence in the record to support Mr. Hogan's claims that DPSC was notified of his impending release in 2004 on multiple occasions and unreasonably and without justification failed to extradite him due to a lack of interest.
Moreover, Mr. Hogan has not shown that he suffered any prejudice as a result of DSPC's failure to extradite him to Louisiana upon his initial release from Texas custody. Mr. Hogan argues that had DPSC extradited him in 2004, he would have completed his Louisiana sentence in 2013, and would never have been incarcerated in Texas from 2005 to 2016. In fact, Mr. Hogan's failure to complete his Louisiana sentence at an earlier date is a result of his own action in escaping from DPSC custody. Similarly, his incarceration in Texas was caused by his decision to commit a crime in that state.
Mr. Hogan has established no ground under La. R.S. 15:1177(A)(9) for reversal or modification of DPSC's decision denying him relief on his ARP. DPSC's refusal to give Mr. Hogan credit on his Louisiana sentence for the time he spent in prison in Texas was neither in violation of constitutional or statutory provisions, manifestly erroneous, arbitrary, capricious, or characterized by an abuse of discretion.
CONCLUSION
For the foregoing reasons, the judgment of the district court affirming DPSC's decision and dismissing Mr. Hogan's petition for judicial review is affirmed. Mr. Hogan is to pay all costs of this appeal.
AFFIRMED.