Opinion
NO. 2011-KA-0510
10-12-2011
STATE OF LOUISIANA v. JOEY BRELAND
Leon A. Cannizzaro, Jr. District Attorney Matthew Caplan Assistant District Attorney COUNSEL FOR THE STATE OF LOUISIANA Jonathan P. Lemann COUHIG PARTNERS, LLC New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLEE, JOEY BRELAND
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 498-125, SECTION "D"
Honorable Frank A. Marullo, Judge
Judge Dennis R. Bagneris , Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard, and Judge Paul A. Bonin)
Leon A. Cannizzaro, Jr.
District Attorney
Matthew Caplan
Assistant District Attorney
COUNSEL FOR THE STATE OF LOUISIANA
Jonathan P. Lemann
COUHIG PARTNERS, LLC
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE, JOEY BRELAND
REVERSED AND REMANDED
The State filed a bill of information charging Joey Breland with possessing contraband - a cellular phone - in Orleans Parish Prison, a violation of La. R.S. 14:402(B). After a December 15, 2010 hearing, the trial court denied a motion suppress evidence, but granted a motion to suppress statement. The State filed a writ to this Court from this decision. This Court granted the writ in a written opinion. State v. Breland, 2011-0148 (La. App. 4 Cir. 1/31/11), unpub. Breland filed a motion to quash the bill of information on May 31, 2011. Breland asserted that the prosecution amounted to double jeopardy because the State Department of Corrections had revoked ninety days of reduced sentence after a hearing on the cell phone incident. The trial court granted the motion on March 14, 2011. The State now appeals. For the following reasons, we hereby reverse the judgment of the trial court and remand this matter for further proceedings. FACTS
There has been no trial in this case. However, evidence was entered at the December 15, 2010 hearing. This Court summarized the facts as follows in its January 31, 2011 opinion:
Defendant is currently serving a six year sentence in the custody of the Louisiana Department of Corrections. Defendant was assigned toBreland, 2011-0148, p. 1, unpub. DISCUSSION
work in the maintenance department of Plant Control at the Orleans Parish Prison as part of his work-release program. Deputy Frye, with the Orleans Parish Sheriff's Office, received information that Defendant may have a cellular phone on his person. Deputy Frye was called into his Major's office, located in the maintenance building, where Defendant was already waiting along with the Major. Deputy Frye then conducted a search of Defendant and found a cell phone in Defendant's pocket. Deputy Frye placed the phone on the desk and continued to search Defendant. Defendant was read his Miranda rights after the search was completed. At some point, Defendant told the deputies that his mother gave him the phone before he began working for the maintenance department.
The State argues that the trial court erred in quashing the bill of information based on an alleged double jeopardy violation because the loss of "good time" is not "criminal punishment" for purposes of double jeopardy.
La. Const. Art. I, §15 and U.S. Const. Amend. V protect against being twice placed in jeopardy for the same offense. These clauses protect against three abuses: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. State v. Johnson, 94-0596, 94-1077, p. 6 (La. 1/16/96), 667 So.2d 510, 514. In Johnson, the Court concluded that, "the drafters and ratifiers of the state constitution did not intend for this court to define 'punishment' for purposes of double jeopardy analysis any more broadly in favor of individuals subject to the civil forfeiture of property than 'punishment' has been construed by the United States Supreme Court in its recent cases." 94-0596, 94-1077, p. 5, 667 So.2d at 513.
Louisiana jurisprudence has historically held that prison disciplinary board actions provide no foundation for double jeopardy because they are not courts, and "[i]n order to constitute former jeopardy, a proceeding relied on must have been in a court." State v. Green, 301 So.2d 590, 591 (La. 1974). The Court has provided the following explanation:
Disciplinary Board is a body authorized to enforce discipline among the inmates of the Louisiana State Penitentiary by the imposition of punitive sanctions. It is not vested with jurisdiction in criminal cases under the cited constitutional provision. Hence, it is not a Court within the intendment of the codal provision, and the proceedings of the Board do not constitute former jeopardy. We conclude that the plea of former jeopardy is without merit and that the trial court properly rejected the evidence pertaining to it.Id. at 591, quoting State v. Turner, 127 So.2d 512, 513 (La. 1961); see also State v. Coney, 246 So.2d 793, 796-797 (La. 1971), also quoting Turner.
More recently, the U.S. Supreme Court has noted that double jeopardy protects only against "the imposition of multiple criminal punishments for the same offense." Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 493 (1997). The Hudson Court enunciated the following test to determine if a punishment is criminal:
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering [v. Mitchell, 303 U.S. 991, 399, 58 S.Ct. 630, 633]. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." [United States v.]Ward, 448 U.S. [242, 248], 100 S.Ct. [2636,] 2641. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," id., at 248-249, 100 S.Ct., at 2641, as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956).522 U.S. at 99-100, 118 S.Ct. at 493.
In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter "; (4)
"whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face," id., at 169, 83 S.Ct., at 568, and "only the clearest proof " will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249, 100 S.Ct., at 2641-2642 (internal quotation marks omitted).
The First Circuit addressed an issue identical to the one presented here in State v. Duncan, 98-1730 (La. App. 1 Cir. 1/25/99), 738 So.2d 706. As here, Duncan was punished by the Louisiana Department of Corrections and lost good time for escaping from the Dixon Correctional Institute. Id., 98-1730, p. 2-3, 738 So.2d at 709. Duncan was also criminally charged with simple escape, a violation of La. R.S. 14:110. The First Circuit concluded that administrative disciplinary proceedings that resulted in forfeiture of good time credits were civil in nature. Id., 98-1730, p. 8, 738 So.2d at 711. The First Circuit reasoned:
Louisiana Revised Statutes 15:571.4(B)(1) provides that an inmate who escapes from a DOC correctional facility or from the lawful custody of a law enforcement or DOC officer may forfeit all good time earned on that portion of his sentence served prior to the escape. Louisiana Revised Statutes 15:571.4(C) further provides that the DOC shall adopt rules and regulations in accordance with the Administrative Procedure Act and that a hearing shall be conducted as a disciplinary proceeding. Such an administrative disciplinary proceeding would clearly be analogous to the one present in Butler, Green, Coney, and the other cited jurisprudence.Id., 98-1730, p. 5, 738 So.2d at 710.
No other Louisiana court has addressed the issue of whether Department of Corrections disciplinary sanctions constitute criminal punishment for purposes of double jeopardy after the U.S. Supreme Court decided Hudson. However, the U.S. Eleventh Circuit upheld criminal prosecution after inmates had been sanctioned with "disallowance of ... accrued good conduct time" in United States v. Mayes, 158 F.3d 1215, 1217 (11th Cir. 1998). The U.S. Second Circuit did the same in Porter v. Coughlin, 421 F.3d 141 (2nd Cir. 2005).
Based on the foregoing, we find that Department of Corrections disciplinary proceedings do not constitute criminal prosecutions for purposes of double jeopardy and that the trial court erred in concluding that the instant proceedings violated Breland's rights against multiple prosecutions or multiple punishments. Accordingly, we hereby reverse the trial court's decision and remand the case for further proceedings.
REVERSED AND REMANDED