Opinion
DOCKET NUMBER 2023 CA 0688
12-27-2023
Darren MARQUEZ v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Darren Marquez, Angie, Louisiana, Plaintiff-Appellant, In Proper Person Debra A. Rutledge, Baton Rouge, Louisiana, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, SECTION 25, IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, DOCKET NUMBER C716929, HONORABLE WILSON E. FIELDS, JUDGE PRESIDING
Darren Marquez, Angie, Louisiana, Plaintiff-Appellant, In Proper Person
Debra A. Rutledge, Baton Rouge, Louisiana, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
GREENE, J,
2Darren Marquez, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment dismissing his petition for judicial review of Administrative Remedy Procedure (ARP) Number RCC-2021-699 and affirming the DPSC’s final decision in the matter.
Mr. Marquez was previously convicted for a first degree robbery he committed in 1989. He was also previously convicted for a second degree kidnapping and forcible rape he committed in 1998. As of 1998, all three of the above crimes were enumerated as crimes of violence in La. R.S. 14:2(B). Accordingly, when calculating Mr. Marquez’s sentences for the 1998 crimes, DPSC classified him as a second offender of a crime of violence and denied him good time eligibility pursuant to La. R.S. 15:571.3(D), which disallows diminution of sentence (good time) to an inmate "if the instant offense is a second offense of violence as defined by La. R.S. 14:2(B)."
As of August 1, 2015, "forcible rape" is "second degree rape." See La. R.S. 14:42.1(C).
Diminution of sentence for good behavior, as provided for in La. R.S. 15:571.3, is commonly referred to as "good time." Englade v. Louisiana Dep't of Corr., 2021-0132 (La. App. 1 Cir. 12/30/21), 340 So.3d 952, 957, wit denied, 2022-00209 (La. 4/12/22), 336 So.3d 82.
In November 2021, Mr. Marquez filed ARP Number RCC-2021-699, challenging DPSC’s denial of his good time eligibility. Through its two-step administrative procedure, DPSC rejected Mr. Marquez’s argument and denied his request to recalculate his sentences. Mr. Marquez then filed a request for judicial review of DPSC’s decision in the Nineteenth Judicial District Court. In February 2023, a Commissioner issued a report recommending that the trial court affirm DPSC’s decision and dismiss Mr. Marquez’s petition. On March 2, 2023, the trial court adopted the Commissioner’s recommendation and signed a judgment dismissing Mr. Marquez’s appeal.
The Corrections Administrative Remedy Procedure, La. R.S. 15:1171, et seq., authorizes DPSC to adopt a procedure for receiving, hearing, and disposing of inmate complaints and grievances. See La. R.S. 15:1171(A). The adopted procedures are the exclusive remedy for handling the claims to which they apply. See La. R.S. 15:1177(D). An inmate initiates a claim with the DPSC. See La. R.S. 15:1172. He may seek review of an adverse DPSC decision in the Nineteenth Judicial District Court, where a Commissioner hears and recommends disposition of the matter to the district court. See La. R.S. 13:711; La. R.S. 15:1177(A)(1)(a). The district court sits in an appellate capacity, reviews the matter de novo, and may accept, reject, or modify the Commissioner's findings and recommendations. See La. R.S. 15:1177(A)(8); Allen v. Louisiana Department of Public Safety and Corrections, 2020-0443 (La. App. 1 Cir. 2/24/21), 322 So.3d 258, 260. Thereafter, the inmate may appeal the district court’s final judgment to this Court, which also reviews the matter de novo. See La. R.S. 15:1177(A)(10); Allen, 322 So.3d at 260.
3Mr. Marquez appeals the adverse decision. In a single assignment of error, he argues that, because first degree robbery was not enumerated as a crime of violence in 1989 (when he committed the first degree robbery), DPSC erred in denying him good time eligibility based on the 1989 conviction. He contends that classifying first degree robbery as a crime of violence for purposes of denying him good time eligibility on the 1998 sentences violates his right against ex post facto application of the law.
[1–3] The law in effect at the time of the commission of the offense determines the penalty imposed upon a person convicted of that offense. Massey v. Louisiana Department of Public Safety and Corrections, 2013-2789 (La. 10/15/14), 149 So.3d 780, 783. Once a sentence is imposed, any change in the law that later occurs cannot be applied to the convicted person to increase that sentence. Dixon v. Louisiana Department of Public Safety and Corrections, 2014-1400 (La. App. 1 Cir. 4/24/15), 2015 WL 1882609, *1. Here, the denial of good time eligibility while Mr. Marquez serves his kidnapping/forcible rape sentences does not increase the penalty for first degree robbery. Rather, it increases the penalty for the kidnapping/forcible rape convictions. When Mr. Marquez committed the kidnapping/forcible rape in 1998, first degree robbery, second degree kidnapping, and forcible rape were crimes of violence enumerated in La. R.S. 14.2(B). Hence, in 1998, Mr. Marquez was on notice that he would not be eligible for good time if he committed another crime of violence, and DPSC’s de- nial of good time on his kidnapping/rape sentences does not constitute an ex post facto violation. See La. R.S. 15.571.3(D); Victorian v. Louisiana Department of Public Safety and Corrections, 2016-0523 (La. App. 1 Cir. 12/22/16), 2016 WL 7409243, *2, writ denied, 2017-0517 (La. 5/25/18), 242 So.3d 1231; Dixon, 2015 WL 1882609 at *1.
Upon de novo review, we affirm the trial court’s judgment in accordance with Uniform Rules - Courts of Appeal, Rule 2-16.2(A)(2) and (4-8). Although Mr. Marquez pursued this appeal in forma pauperis, costs may nevertheless be taxed against him. See La. C.C.P. art. 5188; State in Interest of EG, 1995-0018 (La. App. 1 Cir. 6/23/95), 657 So.2d 1094, 1098, writ denied, 1995-1865 (La. 9/1/95), 658 So.2d 1263. Accordingly, we assess appeal costs to Darren Marquez.
AFFIRMED.