Banks v. Louisiana Department of Public Safety & Corrections

116 So. 3d 739, 2012 La.App. 1 Cir. 1722, 2013 WL 1786339, 2013 La. App. LEXIS 846
CourtLouisiana Court of Appeal
DecidedApril 26, 2013
DocketNo. 2012 CA 1722
StatusPublished

This text of 116 So. 3d 739 (Banks v. Louisiana Department of Public Safety & Corrections) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. Louisiana Department of Public Safety & Corrections, 116 So. 3d 739, 2012 La.App. 1 Cir. 1722, 2013 WL 1786339, 2013 La. App. LEXIS 846 (La. Ct. App. 2013).

Opinion

THERIOT, J.

_JjAlex T. Banks, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“DPSC”), appeals the judgment of the Nineteenth Judicial District Court affirming DPSC’s final administrative decision denying the relief Banks requested through an administrative remedy procedure (“ARP”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Banks was convicted on March 19, 1992, of first degree robbery and armed robbery. He was sentenced to twenty (20) years at hard labor and adjudicated a habitual offender. Shortly after his sentence was imposed, DPSC approved Banks to receive “good time” calculation of his release date at the rate of thirty (30) days for every 30 days served in actual custody in lieu of incentive wages, pursuant to 1991 La. Acts, No. 138, § 1 (“Act 138”).1 Accordingly, Banks was released from prison in May of 2001 under supervision of parole, ten years after he was initially incarcerated for his offenses.

Banks remained under the supervision of parole for approximately four and a half years, until 2005, when he violated his parole and was rearrested. Banks was [741]*741recommitted to the custody of DPSC to serve out the remainder of his sentence. After returning to prison, he received his master prison record in 2006, which stated he was to remain under Act 138, potentially reducing his remaining ten years to five years.

In 2007, DPSC amended Banks’s master prison record to reflect that he was ineligible for good time under Act 138 due to his habitual offender Rstatus and that he would have to serve out all of his remaining ten years in prison.

On October 27, 2010, Banks filed his first ARP, claiming he should receive credit for his parole time pursuant to 2010 La. Acts, No. 792, § 1 (“Act 792”) which allows for credit for time served for good behavior while on parole.2 This ARP was denied due to Banks’s parole revocation in 2006 coming before the effective date of Act 792 in 2010. On April 5, 2011, the sentencing court advised Banks that he was illegally released on parole since his habitual offender status should have prevented him from receiving good time. Banks then filed another ARP on April 18, 2011, claiming that since he was erroneously released from prison, he should receive credit for his parole time and that by having to serve another ten years in prison, his actual sentence is being illegally extended.

Banks did not receive an immediate answer to his ARP. He wrote a letter to DPSC on May 31, 2011, inquiring into the status of his ARP, but again received no answer. His family called DPSC on June 10, 2011 to make an inquiry into the ARP’s status, and they received a reply from DPSC that the ARP would not be answered since he was asking for the same parole credit for which he was previously denied as being ineligible. Banks then filed a petition for judicial review with the 19th JDC of the denial on June 28, 2011.

The commissioner of the 19th JDC recommended to the court that DPSC was not erroneous in its release of Banks, because at the time he was released, DPSC interpreted the provisions of La. R.S. 15:571.3(B) to say that a habitual offender would be ineligible for good time if his predicate offense hwas an enumerated offense listed in the statute.3 Since Banks’s predicate offense was not an enumerated offense, the commissioner determined DPSC acted in good faith when it released Banks based on its interpretation of La. R.S. 15.571.3(B) at the time. The state attorney general subsequently issued an opinion regarding the interpretation of the aforementioned statute, reflecting the decision rendered in Lonzell Richards v. Louisiana Department of Corrections, et al., DPSC docket number 523455 of the 19th JDC, changing the interpretation to deny good time eligibility to an offender whose instant or predicate offense was one of the enumerated offenses. As Banks’s instant offenses of armed robbery and first degree robbery were enumerated, he had been ineligible for good time when he was released on parole. When Banks re-entered custody after violating his parole, DPSC amended his status according to the new interpretation of La. R.S, 15:571.3(B) and made him ineligible for good time on the remainder of his sentence. The 19th JDC adopted the commissioner’s recommendation and rendered judgment in conformity therewith, from which Banks filed this appeal.

STANDARD OF REVIEW

Inmates aggrieved by a decision rendered by DPSC may seek judicial review [742]*742pursuant to La. R.S. 15:1177. The standard of review is set forth in La. R.S. 15:1177(A)(9), as follows:

The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law.
(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
|fi(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.
See also Victorian v. Stalder, 1999-2260, p. 5-6 (La.App. 1 Cir. 7/14/00), 770 So.2d 382, 384-385.

DISCUSSION

While the ARP of October 27, 2010, and the ARP of April 18, 2011, both asked for the same remedy of credit for time served on parole, Banks utilized a different argument for each. In the first ARP, Banks claimed entitlement to the credit under Act 792, under which DPSC ruled he was not eligible. We agree. Banks’s parole violation of 2006 predates the Act’s date of effectiveness in 2010. In Banks’s second ARP, he argued that he should receive credit for his parole time due to being erroneously released from prison and illegally placed on parole.

Banks cites Jackson v. Stalder, 1999-2240 (La.App. 1 Cir. 11/3/00), 772 So.2d 380, writ denied, 2000-3494 (La.10/12/01), 799 So.2d 496, as legal support for his argument. The doctrine of credit for time at liberty requires a two-part analysis: first, the court must determine whether the erroneous release of the inmate was the result of simple or mere negligence on the part of the state; and second, the court must determine whether there is any proof that the delay in the execution of the sentence can be attributed to the inmate’s fault. Id. at 383-384.

In Jackson, the inmate was released due to a miscommunication between Angola State Prison and the DeSoto Parish Sheriffs Office. Id. at 384. This court determined that the inmate’s erroneous release was an act of simple or mere negligence. Id. With the first part of the doctrine satisfied, [ Rthis court moved to the second part.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vincent v. State Through Dept. of Corrections
468 So. 2d 1329 (Louisiana Court of Appeal, 1985)
Victorian v. Stalder
770 So. 2d 382 (Louisiana Court of Appeal, 2000)
Jackson v. Stalder
772 So. 2d 380 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
116 So. 3d 739, 2012 La.App. 1 Cir. 1722, 2013 WL 1786339, 2013 La. App. LEXIS 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-louisiana-department-of-public-safety-corrections-lactapp-2013.