Carson v. La. Dep't of Pub. Safety & Corr.

Full title: RANDY RAY CARSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Nov 9, 2015

NUMBER 2015 CA 0609 (La. Ct. App. Nov. 9, 2015)

Opinion

NUMBER 2015 CA 0609

11-09-2015

RANDY RAY CARSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Randy Ray Carson Cottonport, LA Plaintiff/Appellant Self-Represented Litigant Debra A. Rutledge Deputy General Counsel Dept. of Public Safety and Corrections Baton Rouge, LA Counsel for Defendant/Appellee Louisiana Dept. of Public Safety and Corrections

GUIDRY, J.

NOT DESIGNATED FOR PUBLICATION

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Suit Number C630121
Honorable Todd Hernandez, Presiding Randy Ray Carson
Cottonport, LA
Plaintiff/Appellant
Self-Represented Litigant
Debra A. Rutledge
Deputy General Counsel
Dept. of Public Safety and Corrections
Baton Rouge, LA
Counsel for Defendant/Appellee
Louisiana Dept. of Public
Safety and Corrections
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.

Petitioner, Randy Carson, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (Department) housed at Avoyelles Correctional Center, appeals from a judgment of the district court dismissing his petition for judicial review. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 31, 2008, Carson was convicted on count 3 of possession of a schedule II controlled dangerous substance, oxycodone, and was sentenced to five years imprisonment on April 6, 2009.¹ Carson earned and was awarded good time credit on his sentence and, on January 20, 2010, received a diminution of sentence certificate from the state indicating his eligibility to be released from custody on that date. However, because the state had filed a multiple offender bill of information as to count 3 on November 3, 2009, Carson was released from Elyan Hunt Correctional Center to St. Tammany Parish Prison pending hearing on the multiple offender charge. On April 13, 2010, the district court adjudicated Carson a second-felony habitual offender in accordance with La. R.S. 15:529.1. The district court vacated the five-year sentence previously imposed on April 6, 2009, as to count 3 and sentenced petitioner to nine years imprisonment. The district court ordered that Carson receive credit for time served and ordered that the sentence imposed run concurrently with the sentences previously imposed on counts 1 and 2 on April 6, 2009.

1 Carson was charged with the following: (1) Count 1, possession of a schedule II controlled dangerous substance, cocaine; (2) Count 2, possession of a schedule III controlled dangerous substance, hydrocodone; and (3) Count 3, possession of a schedule II controlled dangerous substance, oxycodone; and (4) Count 4, possession of a schedule IV controlled dangerous substance, clonazepam. Carson was convicted as charged and was sentenced to five years on each conviction, to run concurrently. Carson's argument on appeal is limited to the conviction and subsequent habitual offender adjudication as to count 3.

Thereafter, Carson filed an Administrative Remedy Procedure, challenging the denial of good time eligibility as to the time previously served on his original sentence. Specifically, Carson asserts that at the time the good time credits were earned and he received a diminution of sentence certification and was released, he had not been sentenced as a habitual offender. Therefore, according to Carson, he completed five years of his nine-year sentence, and the remaining time on his habitual offender sentence is only four years.

In its first step response, the Department found that Carson was re-sentenced on April 13, 2010, to nine years on count 3 as a multiple offender and that all credit that was served was applied to his time. The Department noted that Carson received diminution of sentence when he was released on January 20, 2010, and that the time computed on the instant sentence was correct. Accordingly, the Department denied relief.

Unsatisfied with the Department's response, Carson sought review at the second step. In its second step response, the Department noted that prior to Carson's diminution of sentence on January 20, 2010, he had served nine months, twenty-seven days. However, the district court then vacated the sentence on count 3 and re-sentenced Carson as a multiple offender on April 13, 2010. Accordingly, the Department stated that Carson is not eligible to earn good time on the current sentence, but he was entitled to receive an additional 372 days of jail credits for time served, which have been applied. Therefore, the Department denied relief.

Thereafter, Carson filed a petition for judicial review in the district court. Following a hearing,- the Commissioner recommended that the Department's decision to deny relief in the form of good time eligibility be affirmed and that the appeal be dismissed, because the language of La. R.S. 15:571.3 is clear that if the three prerequisites exist, the Department must deny good time. The Commissioner noted that the denial of good time credits applied to the sentence that the defendant is serving and must be applied to the total sentence, which makes the decision retroactive. After a careful de novo review of the administrative record and traversal, the district court signed a judgment adopting the Commissioner's reasons, affirming the Department's decision to deny Carson good time eligibility, and dismissing Carson's appeal with prejudice.

Carson now appeals from the district court's judgment

DISCUSSION

Louisiana Revised Statutes 15:571.3 governs eligibility for diminution of sentence (known as "good time"). At the time that Carson committed the offense of possession of a schedule II controlled dangerous substance, oxycodone,² La. R.S. 15:571.3(C) provided, in pertinent part:³

2 The charged offense was committed on July 10, 2007.

3 See Massey v. Louisiana Department of Public Safety and Corrections, 13-2789, p. 6 (La. 10/15/14), 149 So. 3d 780, 783 (wherein the Louisiana Supreme Court noted that it was the law in effect at the time of the commission of the offense that is determinative of the penalty which the convicted accuser must suffer); see also Lewis v. Day, 97-0111, p. 5 (La. App. 1st Cir. 2/20/98), 708 So. 2d 1152, 1154. --------

Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:

(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:


* * *

(s) A violation of the Louisiana Controlled Dangerous Substances Law which is a felony ...;


* * *

(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and

(3) The inmate's last conviction for the purposes of the Habitual Offender Law, was for a crime: ... (b) committed on or after September 10, 1977. ...

(Footnote omitted.)

This circuit has consistently held that under the clear wording of this statute, a petitioner is not entitled to earn diminution of his sentence through good time credit if: (1) the present conviction is for one of the enumerated crimes specifically listed under paragraph (C), subpart (1) of the statute as an offense for which no good time credit may be earned; (2) he was sentenced as an habitual offender under La. R.S. 15:529.1; and (3) the last conviction was for a crime committed on or after September 10, 1977. See Nicholas v. Phelps, 521 So. 2d 636, 637 (La. App. 1st Cir. 1988).

Accordingly, because Carson's present conviction is for violation of a provision of the Louisiana Controlled Dangerous Substance Law, La. R.S. 40:967(C), which is one of the enumerated crimes in La. R.S. 15:571.3(C)(1) for which no good time credit may be earned, he was sentenced as a habitual offender under La. R.S. 15:529.1, and his last conviction was for a crime committed on or after September 10, 1977, he is clearly not entitled to earn good time credit under La. R.S. 15:571.3(C). Furthermore, because the language in La. R.S. 15:571.3 is mandatory, the Department has no discretion in this matter to allow Carson to earn good time. See Day, 97-0111 at p. 6, 708 So. 2d at 1155.

Also, we find no merit in Carson's argument that the good time credits previously earned on his five-year sentence must be applied to his present nine-year sentence. As noted by the Department, these good time credits were applied to Carson's previous five-year sentence, which resulted in his receipt of a diminution of sentence certificate and early release. Furthermore, Carson's ineligibility for good time on the nine-year habitual offender sentence applies to the total sentence, including time already served.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court, affirming the Department's decision to deny Carson good time eligibility and dismissing his appeal with prejudice. All costs of this appeal are assessed to Randy Ray Carson.

AFFIRMED.