Anthony Gallo v. Louisiana Department of Public Safety & Corrections

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 1049

ANTHONY GALLO

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS

Judgment Rendered: JUN O4 2024

On Appeal from the

19th Judicial District Court In and for the Parish ofEast Baton Rouge State of Louisiana

District Court No. 706284

Honorable Beau M. Higginbotham, Judge Presiding

Anthony Gallo Plaintiff-Appellant, Angie, LA Pro Se

Jonathan R. Vining Attorney for Defendant-Appellee, Baton Rouge, LA Louisiana Department ofPublic Safety Corrections

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

p;F fl l, {./ f-,J"" 1 :( { 0' 1 wr~ ~(" ./1..e flt/J(Jri ) t?,~~,r-/1/~.

b1 5111/YJ

HESTER,J

Petitioner-appellant, Anthony Gallo, an inmate in the custody of the

Department ofPublic Safety and Corrections (" the Department"), filed a petition for

judicial review of a final agency decision ( ARDC-2020-83) under the Corrections

Administrative Procedure Act, La. R.S. 15: 1171 et seq., regarding the applicability

of the sex offender registration and notification requirements. The Department

submitted the record of the administrative proceedings relative to ARDC-2020-83.

The Department also answered the petition, denying all allegations therein and

stating that Gallo was required to " address any issues regarding his sex offender

registration and the Parole Board's decision with the Committee on Parole."

The Commissioner for the Nineteenth Judicial District Court1 issued a

recommendation on May 17, 2023 to affirm the Department's decision to deny

Gallo's request for administrative remedy in ARDC-2020-83 and to dismiss Gallo's

judicial review action. On June 14, 2023, the district court issued judgment

dismissing Gallo's judicial review action of ARDC-2020-83, with prejudice and

assessing costs to Gallo. This appeal followed.

BACKGROUND2

On September 25, 1986, Gallo was convicted of " 14:27 [ Attempted]

Aggravated Rape," and he was sentenced to ten years at hard labor on October 30,

1986, which was prior to the enactment of the sex offender registration and

3

notification statutes. Gallo " was committed to Rayburn Correctional Center to

1 The Office of Commissioner ofthe Nineteenth Judicial District Court was created by La.

R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5).

2 In the limited record ofthis case, the only information provided regarding Gallo's arrest, convictions, incarcerations, and sex offender registration and notification requirements was in Gallo's own statements in his request for administrative remedy, petition for judicial review, and briefin support ofjudicial review.

3 Louisiana's sex offender registration and notification provisions were originally enacted in 1992 and are codified in La. R.S. 15:540 et seq. See 1992 La. Acts No. 388, § 1. Louisiana's

3

continue his sentence" on or about January 22, 1993. He was released in June 1995

on '" Good Time' parole supervision for the remaining 2 ½ years and was not

4

require[ d] to register on the grounds of ex post facto[]." According to Gallo,

however, he served the remainder ofthis sentence while incarcerated for possession

of marijuana.

5

Gallo stated that he was released from custody in June 2001 and was provided

with the registration and notification requirements for sex offenders by his parole

officer. Gallo further stated that the parole officer informed him that he was required

to register as a sex offender for life. Gallo maintained that he " signed under duress

ofnot being release[ d] from custody as was stated by his parole officer." In January

st

2006, Gallo was arrested for "1 D.W.I. and served 18 months ofthe 3 years for the

6

poss[ ession] ofmarijuana conviction." On or about January 28, 2009, Gallo " did a

statutory scheme for registration ofsex offenders is merely a civil regulatory framework. State v. Billiot, 2012-0174 (La. App. 1st Cir. 9/21/12), 104 So.3d 113, 117, citing State ex rel. Olivieri v. State, 2000-0172 ( La. 2/21/01), 779 So.2d 735, 745-750, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730, and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 ( 2001). Thus, the restrictions imposed by the sex offender registration and notification provisions are civil, rather than punitive, for the protection of the public. State v. Trosclair, 2011-2302 ( La. 5/8/12), 89 So.3d 340, 350.

4 Article I, § 10 of the United States Constitution and Article I, § 23 of the Louisiana Constitution prohibit applying criminal laws ex post facto. The Supreme Court in Olivieri, 779 So.2d at 745-50, determined that retroactive application ofMegan's Law, requiring registration of sex offenders and public notification, did not impose punishment and, therefore, did not violate state and federal ex post facto law. Remedial legislation intended to protect the public, like the sex offender registration and notification requirement, is properly assessed as the law exists at the time that the probationary or parole conditions are fixed. See State v. I.C.S., 2013-1023 ( La. 7/1/14), 145 So.3d 350, 356-57.

5 Since the enactment of the sex offender registration and notification provisions in 1992, La. R.S. 15:544 has provided that the applicable time period for registration begins after the conviction, provided the offender is not imprisoned during that time pursuant to such conviction. If the offender was imprisoned, he must comply with the registration provisions beginning with the date of release from imprisonment. According to Gallo, he completed his sentence for attempted aggravated rape in June of2001, at which time his registration period began.

6 The legislature amended La. R.S. 15:544, effective January 1, 2008, to provide that if during the period in which an offender is required to register the offender is subsequently incarcerated for the commission of a subsequent felony or where probation or parole of the offender is revoked, then the period ofregistration and notification shall begin anew from the date the offender is released from incarceration with no credit given for the prior period ofregistration and notification. 2007 La. Acts No. 460, §§ 2 and 8. Louisiana Revised Statutes 15:544(D)(l) currently provides as follows:

If an offender begins the period ofregistration and notification and is subsequently incarcerated for any reason other than a misdemeanor arrest or a misdemeanor conviction or for a felony arrest which does not result in a conviction, then the

4

90-day] ( Tech) tum around for parole violation." Upon his release, he " was

informed to continue to register with probation and parole as a sex offender for life

7

no legal exceptions."

According to Gallo, he complied with the sex offender registration and

notification laws and met "the requirements for the ' clear record' period of 15 years

or more ... without an arrest that [led] to a felony conviction or any offense for which

imprisonment ofmore than one year was imposed pursuant to R. S. 15: 544(3 )(a )(D ). "

However, Gallo was arrested for " the instant offense of R.S. 14:32 Vehicular

Homicide, in which he was convicted and sentence[ d] to 18 years ... hard labor on

7/29/19" and he currently remains in custody.

In his briefon judicial review, Gallo stated that he " seeks relief ofthe lifetime

registration and injunction order against probation and parole authority to supervise

him as a sex offender, after his release under the States authority ofR.S. 15:544(D)."

He maintained that there was no authority to require him to register as a sex offender

for his lifetime and requested that he be released from the authority of the

Department " in the past and possibly continue to do so after his release" regarding

registration requirements.

LAW AND DISCUSSION

Prisoner suits are subject to the administrative procedures of Louisiana

Corrections Administrative Remedy Procedure Act ("CARP"), La. R.S. 15:1171 et

seq., which is the formal grievance mechanism that all offenders committed to the

custody of the Department must use before they may proceed with a suit in federal

period of registration and notification shall begin anew on the day the offender is released from incarceration, with no credit for the period of time in which the offender complied with registration and notification requirements prior to his incarceration.

7 The period oftime a sex offender is obligated to register may be extended during the time ofhis original registration period without violating the ex postfacto clause. State v. Billiot, 2012- 0174 ( La. App. 1st Cir. 9/21/12), 104 So.3d 113, 117-18, citing Smith v. State, 2010-1140 La.1/24/12), 84 So.3d 487, 497-498.

5

or state court. Alonzo v. Cain, 2014-0172 ( La. App. 1st Cir. 9/19/14), 154 So.3d

551, 553, writ denied, 2014-2165 ( La. 12/8/14), 153 So.3d 445; LAC

22:I:325(D)(l). Under the provisions ofCARP, an offender aggrieved by an adverse

decision by the Department rendered pursuant to the prescribed administrative

remedies may seek judicial review in the Nineteenth Judicial District Court. La.

R.S. 15: 1177(A). However, administrative decisions relative to delictual actions for

injury or damages are expressly excluded from Section 1177(A) and must be filed

separately as original civil actions pursuant to La. R.S. 15: 1177(C). Foster v.

Louisiana Department of Public Safety & Corrections, 2012-0358 (La. App. 1st

8

Cir. 11/2/12), 111 So.3d 81, 82.

Pursuant to La. R.S. 15:1177(A)(9), a reviewing court may reverse or modify

the Department's decision only if substantial rights of the appellant have been

prejudiced because the administrative decisions or findings are: ( 1) in violation of

constitutional or statutory provisions; ( 2) in excess of the statutory authority of the

agency; ( 3) made upon unlawful procedure; ( 4) affected by other error of law; ( 5)

arbitrary, capricious, or characterized by an abuse of discretion; or ( 6) manifestly

erroneous in view of the reliable, probative, and substantial evidence on the whole

record. When reviewing the Department's decision, the district court functions as

an appellate court. Marchand v. Louisiana Department of Public Safety &

Corrections, 2020-0747 ( La. App. 1st Cir. 2/24/21), 322 So.3d 269, 272, writ

denied, 2021-00457 (La. 9/27/21), 324 So.3d 104. An aggrieved party may appeal

a final judgment of the district court to the appropriate appellate court. La. R.S.

15:1 l 77(A)(l0). On appeal of the district court's judgment, the appellate court

8 After the Supreme Court's decision in Pope v. State, 99-2559 ( La. 6/29/01), 792 So.2d 713, the legislature amended La. R.S. 15:1177(A) to exclude tort claims fromjudicial review. See 2002 La. Acts, 1st Ex. Sess., No. 89, § 2.

6

reviews the administrative record de nova under the criteria of La. R.S.

15:1177(A)(9). Marchand, 322 So.3d at 273.

Gallo appears to have sought multiple types of relief related to the sex

offender registration and notification statutes. Gallo indicated that he sought to be

relieved ofthe lifetime registration requirement because at the time he was sentenced

no such law was in effect and because he was only required to register for fifteen

years, which he completed. He also sought an injunction prohibiting the Division of

Probation and Parole from supervising him as a sex offender.

Louisiana Revised Statutes 15 :544.1 provides for petitions for injunctive

relief and declaratory judgments regarding the application or interpretation of the

registration and notification requirements, which shall be filed through ordinary civil

proceedings in the district court for the parish where the state capitol is situated.

Gallo has not filed an ordinary civil proceeding. To the extent he seeks an injunction

or declaratory reliefregarding the application or interpretation ofthe registration and

notification requirements, Gallo is not entitled to these forms ofrelief in this judicial

9

review action. See Baily' s Louisiana, Inc. v. Louisiana Gaming Control Board,

1999-2617 (La. App. 1st Cir. 1/31/01 ); 807 So.2d 257, 265-66, writ denied, 2001-

0510 ( La. 1/11/02), 807 So.2d 225 (" The request for injunctive relief should be

addressed in a proceeding separate and apart from the petition for judicial review

and tried by a trial court of original jurisdiction."); also see Scott v. Louisiana

Department of Public Safety & Corrections, 2022-1103 ( La. App. 1st Cir.

4/14/23), 364 So.3d 1155, 1157-58, writ denied, 2023-00703 ( La. 9/26/23), 370

9 We note that La. R.S. 15:544.1 does not apply to summary proceedings provided for in La. R.S. 15:544(E), providing the procedures for reducing notification periods after a sex offender maintains a clean record for a requisite period of time. In order to obtain such reductions, the offender must file a " motion to be relieved of the sex offender registration in the court of conviction" if convicted in Louisiana. See La. R.S. 15:544(E). To the extent that Gallo seeks relief under La. R.S. 15:544(E), he is required to seek such relief in the Twenty-First Judicial District Court where he was convicted.

7

So.3d 479 ( finding that prisoner's " claim for monetary damages was required to be

filed as an ordinary suit ... not as a petition for judicial review").

To the extent Gallo sought review or relief from the decision of the Division

of Probation and Parole, 10 we note that La. R.S. 15:574.1 l(A) provides that parole

is an administrative device for the rehabilitation of prisoners under supervised

freedom from actual restraint, and the granting, conditions, or revocation of parole

rest in the discretion ofthe committee on parole. Importantly, no prisoner or parolee

shall have a right of appeal from a decision of the committee regarding release or

deferment of release on parole, the imposition or modification of authorized

conditions ofparole, the termination or restoration ofparole supervision or discharge

from parole before the end ofthe parole period, or the revocation or reconsideration

ofrevocation of parole, except for the denial of a revocation hearing pursuant to La.

R.S. 15:574.9. La. R.S. 15:574.1 l(A). As this court stated in Moore v. Louisiana

Parole Board, 2022-1278 (La. App. 1st Cir. 6/2/23), 369 So.3d 415,418, "an appeal

is allowed only where the parolee has alleged in his petition for judicial review

that his right to a revocation hearing has been denied or that the procedural due

process protections specifically afforded by La. R.S. 15:574.9 in connection with

such a hearing were violated." ( Emphasis in original.) There is no other basis for

an appeal. Accordingly, Gallo had no right to appeal from a decision ofthe Division

ofProbation and Parole that he must register as a sex offender.

After a careful review of limited facts and circumstances ofthis case, we find

no grounds to reverse or modify the administrative decision under La. R.S.

15: 1177(A)(9). Accordingly, the district court did not err in dismissing Gallo's

judicial review action, with prejudice and assessing costs to Gallo.

10 Gallo claimed in his brief in support of his judicial review action that " the Department ofCorrections and Public Safety through the [ D]ivision ofProbation and Parole unlawfully placed him under lifetime registration from June 4, 2001 until his arrest on the current charge."

8

CONCLUSION

The district court's June 14, 2023 judgment dismissing Anthony Gallo's

petition for judicial review of the decision of the Department of Public Safety and

Corrections in ARDC-2020-83, with prejudice, at Anthony Gallo's cost is affirmed.

Costs ofthis appeal are assessed to Anthony Gallo.

AFFIRMED.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1049

ANTHONY GALLO

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Mcclendon, J., concurring.

I concur in the result reached by the majority.