Opinion
2022 CA 0304, 2022 CA 0305.
11-04-2022
Dennis THOMAS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
McCLENDON, J.
Dennis Thomas, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment of the district court that dismissed his petition for judicial review with prejudice. For the following reasons, we affirm.
According to the record, Thomas is currently serving a thirty-three-year sentence for manslaughter that was committed on January 5, 2006. Thomas's sentencing date was on January 4, 2008. DPSC calculated Thomas's incarceration time in accordance with 1995 La. Acts, No. 1099 (Act 1099), effective January 1, 1997, which amended LSA-R.S. 15:571.3 regarding diminution of sentence for good behavior, known as "good time." As amended, LSA-R.S. 15:571.3 provides that an offender convicted for a crime of violence for the first time could earn diminution of sentence at a rate of three days for every seventeen days served in actual custody.
On September 21, 2020, Thomas filed Administrative Remedy Procedure (ARP) No. LSP-2020-2305, alleging that he should receive good time at a rate of thirty days for every thirty days he serves, as provided in LSA-R.S. 15:571.3, as amended by 1991 La. Acts, No. 138 (Act 138), rather than as provided in Act 1099. DPSC denied Thomas's ARP at both the first and second steps. In the First Step Response Form, Thomas received the following explanation from DPSC:
You have requested an Administrative Remedy for review for a Good-Time rate of 30 days for 30 days served.
After review of your file, your offense was committed on January 05, 2006, which is your first crime of violence. Pursuant to Department Regulation B-04-001 Section 9.K(1), Good Time Ineligibility, Page 7[,] offenders convicted for the first time of a crime of violence as defined in [LSA-R.S.-] 14:2 (B), which is committed on or after January 1, 1997, and who are otherwise eligible to earn good time, shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody, including time spent in custody.
You are eligible for Good Time at eighty-five percent. Your earliest release date is April 26, 2034. Your time computation has been checked and been found to be correct.
Thereafter, Thomas filed two petitions for judicial review in the Nineteenth Judicial District Court, in accordance with LSA-R.S. 15:1171, et seq., regarding ARP No. LSP-2020-2305. Both petitions contested the calculation of his good time. In the interest of judicial economy and at Thomas's request, the matters were consolidated on April 8, 2021. Pursuant to a service order, DPSC filed an answer denying Thomas's allegations and asserting that Thomas's time was calculated correctly. DPSC also included the entire administrative record for ARP No. LSP-2020-2305.
On September 20, 2021, the commissioner issued a report, finding that Thomas is eligible for good time under Act 1099, and as such, DPSC's decision to deny relief was neither arbitrary or capricious, nor manifestly erroneous. Accordingly, the commissioner recommended that DPSC's decision be affirmed and Thomas's suit be dismissed. On October 4, 2021, the district court adopted the commissioner's recommendation, affirmed DPSC's decision, and dismissed Thomas's petition for judicial review with prejudice at his costs. Thomas appealed.
The office of commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. LSA-R.S. 13:713(A). The district judge "may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions." LSA-R.S. 13:713(C)(5); Bell v. Louisiana Department of Public Safety and Corrections, 2020-0067 (La.App. 1 Cir. 11/6/20), 315 So.3d 301, 303 n.2.
On review of the district court's judgment under LSA-R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Bell, 315 So.3d at 303-04.
In his appeal, Thomas asserts that the sentencing court had the discretion to condition eligibility for diminution of a sentence for sentences imposed on crimes of violence. He further asserts that the district court did not designate his manslaughter offense as a crime of violence and did not place any conditions on his eligibility for diminution of sentence. Therefore, he contends, he should receive thirty days of good time for every thirty days served. Initially, we point out that the date of the commission of the offense controls the computation of the diminution of sentence. Montecino v. Louisiana Department of Public Safety and Corrections, 2017-0735 (La.App. 1 Cir. 12/21/2017, 240 So.3d 229, 230, writ not considered, 2018-1039 (La. 9/21/18), 252 So.3d 493. Thus, at the time Thomas committed the crime of manslaughter, LSA-R.S. 15:571.3(B), as amended by Act 1099 provided, in pertinent part:
The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty days for every thirty days in actual custody except for an inmate convicted a first time of a crime of violence as defined in R.S. 14:2(13), who shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody, including time spent in custody with good behavior prior to sentence for which defendant is given credit.
(Emphasis added). Although Thomas argues that the exception in the statute is inapplicable to him because the district court failed to specifically designate his conviction for manslaughter as a crime of violence, LSA-R.S. 15:571.3(B) does not allow for discretion in any manner for an inmate convicted a first time of a crime of violence as defined in LSA-R.S. 14:2(13). The legislature has unambiguously enumerated manslaughter as a crime of violence. The word "shall" is mandatory. LSA-C.Cr.P. art. 5. Therefore, because Thomas is serving a sentence for manslaughter, a crime of violence, he is not entitled to earn diminution of sentence at the increased rate under Act 138, an older version of the statute. Accordingly, under the plain language of LSA-R.S. 15:571.3, as amended by Act 1099, Thomas shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody, as computed by DPSC.
Louisiana Revised Statutes 15:571.3A(1) currently provides, in relevant part:
The amount of diminution of sentence allowed under this Paragraph shall be at the rate of thirty days for every thirty days in actual custody, except for a prisoner convicted a first time of a crime of violence, as defined in R.S. 14:2(B), who shall earn diminution of sentence at the rate of three days for every seventeen days in actual custody held on the imposed sentence, including, in either case, time spent in custody with good behavior prior to sentencing for the particular sentence imposed as authorized by Code of Criminal Procedure Article 880.
After a thorough review of the record and the commissioner's report, we find no error in the district court's October 4, 2021 judgment that adopted the commissioner's recommendation. Accordingly, we affirm the district court's judgment dismissing Thomas's petition. All costs of this appeal are assessed against Dennis Thomas.
Although Thomas filed this appeal in forma pauperis, since we find no merit in his appeal, the appellate costs may be assessed against him. See Montecino, 240 So.3d at 231-32.