Opinion
2012 CA 0829
12-21-2012
HOPE WEATHERSBY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, JAMES LeBLANC, SECRETARY & HENRY GOINS, LRDC; JAMES ROGERS, WARDEN & CHERYL SCHEXNAYDER, RECORDS ANALYST LOUISIANA CORRECTIONAL INSTITUTE FOR WOMEN
Hope Weathersby Louisiana Correctional Institute For Women St. Gabriel, Louisiana Plaintiff/Appellant In proper person Debra A. Rutledge Baton Rouge, Louisiana Counsel for Defendant/Appellee James M. LeBlanc
NOT FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 592,257
Honorable Todd Hernandez, Judge Presiding
Hope Weathersby
Louisiana Correctional Institute
For Women
St. Gabriel, Louisiana
Plaintiff/Appellant
In proper person
Debra A. Rutledge
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
James M. LeBlanc
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ .
McCLENDON , J.
Hope Weathersby, an inmate in the custody of the Department of Public Safety and Corrections (DPSC), seeks review of a judgment of the Nineteenth Judicial District Court (19th JDC) that dismissed her petition for judicial review and affirmed the final agency decision in this matter. For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
In 2003, Weathersby was convicted of issuing worthless checks (Jefferson Parish docket number 026165) and for bank fraud (Jefferson Parish docket number 026970), and was placed on probation for five years. In 2006, she was arrested on two new felonies (Jefferson Parish docket numbers 030677 and 034929), and a probation hold was placed on her on August 7, 2006. She was also later arrested on a third felony charge (Jefferson Parish docket number 066004).
Weathersby was sentenced to eight years at hard labor on each of the three felony charges in docket numbers 030677, 034929, and 066004, with the three sentences to run concurrently.
These three docket numbers included charges of bank fraud, issuing worthless checks and theft.
At a subsequent parole revocation hearing in docket numbers 026165 and 026970, she was sentenced to five years with those sentences to run concurrently with each other, but to run consecutively with the sentence on the other three felonies. With regard to these two docket numbers (026165 and 026970), the court ordered that credit be awarded for time served.
The record indicates that the credit to be awarded was 684 days.
DPSC ultimately awarded Weathersby jail credit for time served under Jefferson Parish Docket No. 026970, but did not calculate the time as jail credit in docket number 026165, instead crediting the time as awarded credits.
Weathersby, asserting, among other things, that DPSC failed to properly calculate her pre-sentence jail credits in docket numbers 026165 and 026970, filed a request for administrative remedy in accordance with the Corrections Administrative Remedy Procedure (CARP) established by LSA-R.S. 15:1171, et seq. Weathersby's request for an administrative remedy was denied at the first and second step.
Weathersby subsequently filed a petition for judicial review in the 19th JDC pursuant to LSA-R.S. 15:1177(A). In accordance with the screening provisions of LSA-R.S. 15:1178, Weathersby's petition was assigned to a commissioner at the 19th JDC to be reviewed. The commissioner's screening report, which was signed on November 21, 2011, indicated that there was no error in the DPSC's credit calculations. In his report, the commissioner, in finding no error in the DPSC's calculation, indicated:
The December 30, 2010 time computation and jail credit sheet indicates the [DPSC] declined to award [684] days of credit for time served prior to revocation as credit for time served under Jefferson Parish Docket No. 026165, but did credit the time at issue as awarded time credits. The [DPSC] correctly notes that offenders are not entitled to overlapping jail credits on consecutive sentences. However, where a sentencing court specifies that an offender is to receive credit for time served on a consecutive sentence, the time is credited as awarded credits, to denote the time was awarded by the sentencing Court. In this matter, the [DPSC] has properly calculated the petitioner's time served prior to revocation as awarded credit on Jefferson Parish Docket No. 026165. As for the petitioner's other revocation term under the Jefferson Parish Docket No. 026970, the Department has not run that term consecutive to the sentences imposed on May 9, 2008. Furthermore, the Department has given the petitioner [684] days of awarded credit under Jefferson Parish Docket No. 026970.The commissioner recommended that the administrative decision be affirmed and that the request for judicial review be dismissed with prejudice. Based on the commissioner's recommendation, the 19* JDC judge signed a judgment affirming the administrative decision and dismissing Weathersby's petition for judicial review with prejudice.
We note that the commissioner refers to consecutive sentences, and it is unclear what sentences the commissioner is referring to, but the sentences in 026165 and 026970 were ordered to run concurrently.
Weathersby has appealed, seeking review of the district court's judgment.
DISCUSSION
Weathersby contends that she is entitled to jail credit under both Jefferson Parish Docket Nos. 026165 and 026970 for time served after the probation hold was placed on her on August 7, 2006. Weathersby asserts that the sentencing court intended that she receive credit for time served under both Jefferson Parish docket numbers as jail credits. Specifically, she references the following exchange between counsel and the court when it sentenced her in connection with docket numbers 026165 and 026970:
[Counsel]:Weathersby concludes that she is entitled to jail credits in both docket numbers 026165 and 026970 in accordance with the sentencing court's ruling.
...But I would also ask the Court to recognize that over the past, I believe, two years she has served in the State's correctional system, and she served that time because of the probation hold that has been on her in this division.
THE COURT:
And I will certainly order that she get credit for that time against the five years that I had originally given her.
***
THE COURT:
I'm going to order as the last sentencing judge, that it run consecutive to the sentence she received in the other division which is my understanding was eight years. I'm going to give her credit for time served on this charge, on these five years I'm going to give her credit for time served against that understanding that she's been held on a probation hold. So it will reduce the five years that I gave her by the amount of time she's been incarcerated, and I so order, okay. Thank you.
She gets five years of total incarceration. If it is two counts they run concurrent with each other, but it runs consecutive to the eight years that she received in Judge McCabe's court. [Emphasis supplied.]
It is well settled that the determination of the sentence a defendant is to serve, and what, if any, conditions are to be imposed on that sentence are made by the trial judge, not the defendant's custodian. The custodian's obligation is to see that the sentence imposed is the sentence served. Pierre v. Maggio, 445 So.2d 425, 426 (La. 1984). Thus, the DPSC is charged with the responsibility of complying with any conditions placed on a sentence by the trial judge.
In Williams v. Cooper, 05-2360 (La.App. 1 Cir. 10/6/06), 945 So.2d 48, the trial court sentenced a defendant to serve consecutive sentences for armed robbery and attempted armed robbery. Specifically, the trial court indicated that "Said sentences to run consecutive to each other less credit for time served," and a minute entry indicated that the court imposed both sentences with credit for time served. Williams, 945 So.2d at 51. Williams filed for a remedy under CARP, asserting that the DPSC had not given him credit for time served on both of his convictions. Following his denial in the first and second step, he filed a petition for review with the 19th JDC, which denied relief. On appeal, this court indicated that the trial court "intended that Williams receive credit for time served on both sentences." Id. Accordingly, this court reversed the district court's judgment and remanded the matter to the trial court to compute Williams' armed robbery and attempted armed robbery sentence with credit for time served. Id. While we note that Williams is distinguishable insofar as it involved consecutive sentences, it is nevertheless instructive.
Further, in this case, the sentencing court, although it ordered the sentences in docket numbers 026165 and 026970 be served consecutively with the other three felony convictions, clearly indicated that Weathersby be given a day-for-day jail credit for time served for the concurrent sentences in docket numbers 026165 and 026970. Accordingly, the ruling of the district court is reversed and the DPSC is ordered to compute Weathersby's sentence in Jefferson Parish docket numbers 026165 and 026970 with credit for time served as jail credit. Cost of this appeal in the amount of $1,347.00 are assessed to DPSC.
To apply the jail credit to only one of the five year concurrent sentences, without an equal application to the other five year sentence, would essentially negate the effect of the credit awarded by the sentencing court.
REVERSED.