Opinion
NO. 2012 CA 0750
12-21-2012
RICHARD D. PARKER v. JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS; WARDEN HOWARD PRINCE, ELAYN HUNT CORRECTIONAL CENTER
RICHARD D. PARKER ST. GABRIEL, LA PLAINTIFF-APPELLANT PRO SE WILLIAM L. KLINE BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 599,756
Honorable R. Michael Caldwell, Judge
RICHARD D. PARKER
ST. GABRIEL, LA
PLAINTIFF-APPELLANT
PRO SE
WILLIAM L. KLINE
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
JAMES M. LEBLANC,
SECRETARY, DEPARTMENT OF
PUBLIC SAFETY &
CORRECTIONS
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
PETTIGREW , J .
Petitioner, Richard D. Parker, an inmate in the custody of the Louisiana Department of Public Safety and Corrections ("DPSC"), appeals a judgment affirming DPSC's final agency decision and dismissing the claims alleged in his petition for judicial review. For the following reasons, we affirm the judgment.
BACKGROUND
On October 8, 1993, Parker was sentenced as a second-offense habitual offender to a term of 20 years pursuant to La. R.S. 15:529.1. He was subsequently released by the DPSC Board of Parole on May 15, 2003, and was to remain under supervision until his full term release date of December 14, 2012. At that time he owed a balance on his sentence of approximately 9 years and seven months. In 2005, Parker's parole was revoked for parole violations. DPSC's computation of the remainder of his sentence resulted in a new release date of August 26, 2014.
Although the Commissioner references a full term release date of September 2014 in her report we note that Parker's DPSC master record reflects that his full term release date is August 26, 2014.
Parker filed an Administrative Remedy Procedure ("ARP") at the prison where he was incarcerated, claiming that DPSC did not have the authority to override or amend the original sentence that had been imposed by the judicial branch. Parker asserted that because La. R.S. 15:529.1(G) provides that any sentence imposed under La. R.S. 15:529.1 "shall be at hard labor without the benefit of probation or suspension of sentence," DPSC is without legal authority to stop, start, or enhance the duration of custody on an already imposed judicial sentence. His request was reviewed and denied at the first and second steps of the ARP. Having exhausted his administrative remedies, Parker filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC), challenging DPSC's refusal to consider the legal ramifications of interrupting a judicially imposed penalty pursuant to La. R.S. 15:529.1. DPSC answered the petition and provided a certified copy of the complete record of the ARP and documentation concerning Parker's incarcerations and the computations applied to his sentence. A commissioner at the 19th JDC reviewed the record and recommended to the district court judge that the DPSC decision be affirmed and Parker's petition be dismissed as frivolous for failure to state a cause of action. Parker timely filed a traversal of that recommendation, reiterating his arguments to the court. On August 30, 2011, a judgment was signed, affirming the DPSC decision and dismissing Parker's petition for judicial review, at his costs. This appeal followed.
DISCUSSION
As correctly pointed out by Parker below, the habitual offender statute does in fact provide that "[a]ny sentence imposed under the provisions of [La. R.S. 15:529.1] shall be at hard labor without benefit of probation or suspension of sentence." La. R.S. 15:529.1(G). However, there is no support for Parker's assertion that La. R.S. 15:529.1 does not allow for parole in this case.
At the time that Parker's parole was revoked, La. R.S. 15:574.9(E) delineated the consequences of a parole revocation, as follows:
When the parole of a parolee has been revoked by the board for the violation of the conditions of parole, the parolee shall be returned to the physical custody of the Department of Public Safety and Corrections, office of corrections services, and serve the remainder of his sentence as of the date of his release on parole, subject to consideration by the board of any commutation of the sentence, and any diminution of sentence earned for good behavior while in the institution. The parolee shall be given credit for time served prior to the revocation hearing whether such time is served in a local detention facility, state institution, or out-of-state institution. The parolee shall not receive credit for such time served prior to the revocation hearing where the revocation is based on the subsequent conviction of a crime, in which case the parolee will receive credit for time served for the subsequent conviction pursuant to Code of Criminal Procedure Article 880.
This subsection was amended by 2001 La. Acts, No. 608, § 1. Section 2 of Act 608 states that its provisions shall apply to all persons in the custody of DPSC on its effective date, August 15, 2001.
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Parker argued below that DPSC violated his constitutional rights and increased the sentence imposed by the district court. On appeal, he asserts that DPSC was in error by temporarily delaying or interrupting his judicially imposed sentence. He also argues that the Certificate of Parole that he signed was ambiguous and should be interpreted against DPSC, the party who drafted it, and that he was not given proper notice by DPSC of the ramifications of a revocation. We find no merit to any of Parker's arguments.
The jurisprudence is well settled that a parolee is not entitled to credit against his sentence for the time spent free under parole conditions. Bancroft v. Louisiana Dept. of Corrections, 93-1135, p. 3 (La. App. 1 Cir. 4/8/94), 635 So.2d 738, 740. Citing Parkerson v. Lynn, 556 So.2d 91, 95 (La. App, 1 Cir. 1989), writ denied, 563 So.2d 1151 (La. 1990), the Bancroft court noted:
The purposes of parole and probation are for the rehabilitation of the criminal and are acts of grace to one convicted of a crime. Because parole and/or probation are less restrictive on the offender's freedom than penal incarceration, and are acts of grace to the offender, violation of parole and/or probation has consequences such as no entitlement to credit against the offender's sentence for the time spent on probation and/or parole. [Citation omitted.]Bancroft, 93-1135 at 3, 635 So.2d at 740.
As previously indicated, Parker's request for relief was denied at the first and second steps of the ARP. The "First Step Response Form" noted, as follows:
Your sentence has not been extended. You released 5/15/03 with a full term date of 12/14/2012. Upon return you owe the difference which is 9 years, 6 months and 29 days. You were originally arrested 12/14/92 and released 5/15/03. You served 10 years, 5 months and i day. As stated above upon return you owe 9 years, 6 months and 20 days [sic] for a total of 20 years. From date of arrest 1/28/05 until full term date of 9/26/2014 is 9 years, 6 months and 20 days [sic].The "Second Step Response Form" indicated, as follows:
This will advise that your concerns were adequately addressed by the first step respondents at Hunt Correctional Center. ... [Y]ou must serve the balance owed as of release which is 9 years, 6 months, and 29 days. You were aware when you signed the parole certificate that you would be on supervision for that period and agreed to all conditions of release.
At the time of his parole, Parker signed the Certificate of Parole, which outlined the conditions of his parole. Parker agreed to the conditions and signed the certificate on May 16, 2003. The certificate clearly provides that "Parole shall not become operative until the following conditions are agreed to by the inmate." The certificate further declares that Parker understood all of the conditions that had been read to him and that he promised and agreed to conform to the conditions.
We find no evidence in the record that Parker had not been informed or that he did not agree to the conditions of his release on supervised parole. Parker's signature on the certificate outlining the conditions of his parole is evidence that he acknowledged his understanding of all the conditions, that the conditions had been read to him, and that he agreed to conform to the conditions. Given the facts that parole supervision was granted, and Parker was released on May 15, 2003, the record clearly reflects that Parker understood and agreed to the supervised parole conditions set forth in the certificate and to all the conditions associated with his release.
CONCLUSION
After a thorough review of the record, in consideration of Parker's arguments, and applying the relevant law and jurisprudence, we find no error of law or abuse of discretion by the trial court. We, therefore, affirm the August 30, 2011 judgment of the trial court and find that the trial court's reasons for judgment, as set forth in the commissioner's recommendation, adequately explain the decision. All costs associated with this appeal are assessed against petitioner, Richard D. Parker.