Opinion
NUMBER 2016 CA 0545
02-17-2017
RON KIRK THOMPSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Ron Kirk Thompson Angola, LA Plaintiff/Appellant Pro Se Terri L. Cannon Angola, LA Counsel for Defendant/Appellee Louisiana Department of Public Safety & Corrections
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 C640945 Honorable Timothy Kelley, Presiding Ron Kirk Thompson
Angola, LA Plaintiff/Appellant
Pro Se Terri L. Cannon
Angola, LA Counsel for Defendant/Appellee
Louisiana Department of Public
Safety & Corrections BEFORE: WHIIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. GUIDRY, J.
Ron Kirk Thompson, an inmate in the custody of the Department of Public Safety and Corrections (Department), appeals from a judgment of the district court affirming the Department's decision denying Thompson's request for administrative remedy and dismissing his petition for judicial review of that decision with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Thompson, who is serving a sentence for forcible rape, filed a request for administrative remedy on July 20, 2015, contending that the Department had been holding him illegally past his parole release date of March 9, 2009. In its first-step response, the Department noted that because Thompson is classified as a sex offender, having been convicted of forcible rape, he must comply with Department regulations requiring registration and approval of a residence plan prior to his release. Because Thompson's prior residence plan had been denied by the Department, the Department requested that Thompson submit another residence plan to be forwarded to the Probation and Parole District Office for review and denied Thompson's request for administrative remedy.
Thereafter, Thompson filed an application for writ of habeas corpus and mandamus in the Nineteenth Judicial District Court requesting that the court declare that his custody had become unlawful and illegal due to the Department's holding him past his release date. In particular, Thompson asserted that such action by the Department unconstitutionally enforces a law ex post facto and violates due process, double jeopardy, and the Eighth Amendment prohibition against cruel and unusual punishment. Thompson also asserted that the Department's decision violates La. R.S. 15:571.4 and his double good time designation.
A commissioner appointed by the district court to hear the matter considered Thompson's action as a petition for judicial review of the Department's decision denying his request for administrative remedy. After reviewing the pleadings submitted by the parties, the commissioner recommended affirming the Department's decision and dismissing the appeal, as Thompson is admittedly serving a sentence for a sex offense that requires him to obtain an approved residential plan prior to early release from that sentence, and his claims of unconstitutionality of the statute or its application are without merit and have been addressed and determined adversely by the First Circuit Court of Appeal in Kozlowicz v. State, Dept. of Public Safety and Corrections, 08-1806 (La. App. 1st Cir. 3/27/09), 9 So. 3d 1000.
After a careful de novo consideration of the administrative record, together with the traversal to the commissioner's recommendation filed by Thompson, the district court signed a judgment affirming the Department's decision and dismissing Thompson's appeal with prejudice. Thompson now appeals from the district court's judgment.
DISCUSSION
Thompson asserts on appeal that the district court erred in failing to order his immediate release on good time parole supervision based on a claim that the Department's adherence to La. R.S. 15:574.4(S) and its regulations implementing that statutory provision unconstitutionally enforces a law ex post facto and violates his constitutional right to due process. Thompson also asserts that the Department's decision violates La. R.S. 15:571.4 and his double good time designation.
Louisiana Revised Statute 15:574.4(S) provides, in pertinent part:
This subsection was redesignated as La. R.S. 15:574.4.3(E) by 2010 La. Acts 241, § 1.
(1) In cases where parole is permitted by law and the offender is otherwise eligible, the committee on parole shall not grant parole to any sex offender either by an order of the committee on parole or office of adult services pursuant to R.S. 15:571.3 until the [Department] has assessed and approved the suitability of the residence plan of such offender. In approving the residence plan of the offender, the department shall consider the likelihood that the offender will be able to comply with all the conditions of his parole.
(2) For purposes of this Section, "sex offender" shall mean any offender who has been convicted of ... the perpetration or attempted perpetration of a violation of a sex offense as defined in R.S. 15:541.
Thompson does not contest the Department's determination that he is a sex offender as defined by La. R.S. 15:574.4(S)(2), nor does he assert that he has an approved residence plan. Rather, Thompson's argument centers around his contention that because he pled guilty to a sex crime in 1985, the new requirement for parolees and good time parolees enacted in 20 06 constitutes a retroactive application of a law in violation of his constitutional rights.
2006 La. Acts 26, §1 added Subsection S to La. R.S. 15:574.4. --------
The district court correctly noted that this identical issue was previously considered by this court in Kozlowicz, wherein this court affirmed the Department's decision, finding that the retroactive application of La. R.S. 15:574.4(S) did not violate the petitioner's constitutional rights. Kozlowicz, 08-1806 at pp. 9-12, 9 So. 3d at 1005-1007. In Kozlowicz, the petitioner, who was also convicted of a sex offense in 1985, reached his anticipated good time release date, but the Department refused to release him due to his failure to have an approved residency plan. Kozlowicz, 08-1806 at pp. 2-3, 9 So. 3d at 1001-1002. Like Thompson, the petitioner in Kozlowicz asserted that La. R.S. 15:574.4(S), as applied, violated his due process rights and violated his interest in not having good time forfeited except pursuant to La. R.S. 15:571.3. Kozlowicz, 08-1806 at p. 7, 9 So. 3d at 1004.
In addressing the petitioner's argument regarding due process, this court in Kozlowicz, 08-1806 at p. 10, 9 So. 3d at 1006 stated:
We recognize that the petitioner was not released on the date, February 23, 2007, that the Department's master record indicated he could have been discharged pursuant to diminution of sentence. However, this was not due to an action, or omission, by the Department resulting in a violation of due process because it was deprivation without a hearing. As has already been established, the reason petitioner was not released on his good time discharge date is because he did not have an approved residence plan as required by La. R.S. 15:574.4(S). The fact that he has a constitutionally protected interest in good time does not deprive the legislature of the right to enact legislation that possibly has the effect of impacting that statutorily created interest. Further, the fact that the Department may not deprive a prisoner of good time without a hearing does not have any legal relevance to the situation here, because the Department did nothing to deprive the petitioner of his good time. Rather, the Department was prohibited by statute from releasing the petitioner.
Further, with regard to the petitioner's argument that he had a contractual interest in good time that was impaired by the passage of La. R.S. 15:574.4(S) in 2006, this court found that it was bound by Bancroft v. Louisiana Dept. of Corrections, 93-1135 (La. App. 1st Cir. 4/8/94), 635 So. 2d 738 and noted that:
[E]ntry into the good time credits program was only an option he chose to exercise that resulted in his eligibility for early release. ...Kozlowicz, 08-1806 at p. 11, 9 So. 2d at 1007.
[Bancroft] makes clear that any conditions imposed on a prisoner released via diminution of sentence are valid as long as they are lawful on the date of release. The fact that those conditions may not have been required at the time the prisoner chose to earn good time credit is not legally relevant. [Emphasis in original.]
Further, with regard specifically to ex post facto application of laws, this court held in Williams v. Creed, 07-0614, p. 8 (La. App. 1st Cir. 12/21/07), 978 So. 2d 419, 425, writ denied, 08-0433 (La. 10/2/09), 18 So. 3d 111 that after the Louisiana Supreme Court's decision in State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So. 2d 735, cert. denied, 533 U.S. 936, 121 S. Ct. 2566, 150 L. Ed. 2d 730 (2001):
[T]he only relevant issues regarding a legislative change are "whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable." Olivieri, 779 So. 2d at 744. In other words, ... once a sentence has been imposed on a defendant, any change in the law that later occurs cannot be applied to that defendant to increase that sentence or penalty. Anything other than or less that this is not protected by the ex post facto clauses of the United States and Louisiana Constitutions.This court also noted:
In Olivieri, the Louisiana Supreme Court cited California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995), in which the United States Supreme Court had stated that "the focus of the ex post facto inquiry is not whether a legislative change produces some ambiguous sort of 'disadvantage,' nor, as the dissent seems to suggest, on whether an amendment affects a prisoner's opportunity to take advantage of provisions for early release ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable." [Emphasis in original.]Williams, 07-0614 at p. 9 n.8, 978 So. 2d at 425 n.8.
Accordingly, because the requirement of La. R.S. 15:574.4(S) that Thompson obtain an approved residence plan prior to his release, while adding a condition to his early release because he is a sex offender, does not alter the definition of criminal conduct or increase Thompson's sentence, it does not result in an ex post facto application of law in violation of the Louisiana or United States Constitution.
Therefore, from our careful review of the entire record, we find that Thompson, as a sex offender, is required to submit an approved residence plan to the Department prior to his release as required by La. R.S. 15:574.4(S). Furthermore, because Thompson failed to submit an approved residence plan, the Department was correct in denying his administrative request for immediate release.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court affirming the Department's decision and dismissing Thompson's petition with prejudice. All costs of this appeal are assessed against Ron Kirk Thompson.
AFFIRMED.