NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA r
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0140
BLAIRE DUHON
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, ET AL.
DATE OF JUDGMENT. ' OCT 1 3 2021
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 660, 054, SECTION 23, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA
HONORABLE WILLIAM A. MORVANT, JUDGE
Elizabeth B. Desselle Counsel for Defendant -Appellant Baton Rouge, Louisiana Louisiana Department of Public Safety Corrections, et al.
Thomas V. Alonzo Counsel for Petitioner -Appellee Lafayette, Louisiana Blaire Duhon
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: AFFIRMED. CHUTZ, J.
Defendant -appellant, the Louisiana Department of Public Safety &
Corrections ( the Department), appeals a district court judgment ordering the
Department to classify as a non-violent offense the vehicular homicide conviction
of appellee, Blaire Duhon ( petitioner), an inmate in the custody of the Department.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 24, 2014, petitioner committed a vehicular homicide while under
the influence of alcohol. She pled guilty to that offense on August 21, 2015, and
was sentenced that date to twenty-five years imprisonment at hard labor, with all
but ten years suspended, with credit for time served, and a fine of $2, 000. 00, plus
court costs.
In 2016, petitioner filed Administrative Remedy Procedure ( ARP) No.
HDQ- 2016- 1342. She requested that her sentence be recalculated as a non-violent
rather than a violent offense and that her Master Prison Record be amended to
reclassify her vehicular homicide conviction from a violent to a non-violent
offense. Under La. R. S. 15: 571. 3, the classification of an offense as violent or
non-violent affects the rate at which good time credit is earned.
On November 17, 2016, the Department denied petitioner' s second -step
request, stating:
Your request is concerning Vehicular Homicide listed as a crime of violence under LA R.S. 14: 2. The crime was effective for any one who commits the charge of Vehicular Homicide on or after March 19, 2013 and prior to May 28, 2014, according to the Louisiana Supreme Court, State vsr.] Oliphant[, 12- 1176 ( La. 3/ 19/ 13), 113 So. 3d 165]. You committed your charge on April 24, 2014, therefore, this court ruling applies to you. Your time is computed correctly under ACT 1099....
Following the denial of her ARP, petitioner filed a petition for judicial review in
the Nineteenth Judicial District Court. Upon reviewing the matter, a commissioner
2 recommended reversing the Department' s refusal to reclassify petitioner' s offense
as a non- violent offense. The commissioner concluded the Department' s denial of
petitioner' s ARP was manifestly erroneous and in violation of her statutory and
constitutional rights. In accordance with the commissioner' s recommendation, on
November 18, 2020, the district court signed a judgment reversing the denial of
petitioner' s ARP and ordering the Department to " calculate the Petitioner' s
vehicular homicide sentence ... as a non-violent offense for purposes of good time
eligibility." The Department has now appealed, arguing in a single assignment of
error that the district court legally erred in reversing its agency decision without
finding that the decision was manifestly erroneous or clearly wrong.
DISCUSSION
The Department argues petitioner' s offense is properly classified as a crime
of violence because the offense was committed after the Supreme Court' s decision
in State v. Oliphant, 12- 1176 ( La. 3/ 19/ 13), 113 So. 3d 165. In Oliphant, the
Supreme Court held the defendant' s vehicular homicide conviction was a violent
offense under the general definition provided by La. R.S. 14: 2( B), even though
vehicular homicide was not one of the offenses specifically enumerated as a
violent offense at that time. 113 So. 3d at 173. Additionally, the Department
points out that petitioner committed the offense before the legislature amended La.
R.S. 14: 2( B)' and 14: 32. 1( C), effective May 28, 2014, to provide that a vehicular
homicide is a crime of violence only if the offender' s blood alcohol concentration
BAC) exceeds 0. 20 percent. The Department argues these amendments are not
Louisiana Revised Statutes 14: 2( B)( 46) was added to specifically enumerate vehicular homicide as a crime of violence when the offender' s blood alcohol concertation exceeded 0. 20 percent by weight at the time of the offense. Louisiana Revised Statutes 14: 32. 1( C) was added to provide that one convicted of vehicular homicide should be sentenced as one convicted of a crime of violence if the offender' s blood alcohol concertation exceeded 0.20 percent by weight at the time of the offense.
Z Louisiana Acts 2014, No. 280, § 2 provided that the amendments to La. R. S. 14: 2( B) and 14: 32. 1 were to become effective upon signature of the governor or, if not signed by the governor, upon expiration of the delay for bills to become law without signature of the governor. 3 applicable to petitioner' s offense because her offense was committed
approximately one month before the May 2014 effective date of the statutory
amendments, and the legislature expressed no retroactive intent. Accordingly, the
Department argues the district court legally erred in reversing its agency decision
in the absence of clear or manifest error in its decision.3
In Louisiana, the law in effect at the time an offense is committed generally
dictates the penalty applicable to a defendant upon conviction. State v. Holloway,
15- 1233 ( La. 10/ 19/ 16), 217 So. 3d 343, 347. However, there are exceptions to this
rule when the legislature indicates an intention that the law be applied retroactively
and doing so does not violate the ex post facto prohibitions in the state and federal
constitutions. 4 The central inquiry in determining whether retroactive application
of a law violates ex post facto prohibitions is " whether the change alters the
definition of criminal conduct or increases the penalty." Holloway, 216 So. 3d at
348, quoting State ex rel. Olivieri v. State, 00- 0172 ( La. 2/ 21/ 01), 779 So. 2d 735,
744. When application of the new law does not make the punishment more
burdensome and potentially is advantageous to the defendant, as in this case, the ex
post facto prohibitions are not implicated and the new law possibly can be
considered as an ameliorative change. See Holloway, 216 So. 3d at 348.
Petitioner' s offense was committed approximately fourteen months after the
Oliphant decision holding that a vehicular homicide involving an offender with a
BAC of 0. 247 percent was a crime of violence and one month before the
legislature amended La. R.S. 14: 2( B) and 14: 32. 1 to provide that vehicular
3 Under the Corrections Administrative Remedy Procedure, La. R.S. 15: 1171, et seq., judicial review of an adverse decision by the Department is available pursuant to La. R.S. 15: 1177.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA r
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0140
BLAIRE DUHON
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, ET AL.
DATE OF JUDGMENT. ' OCT 1 3 2021
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 660, 054, SECTION 23, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA
HONORABLE WILLIAM A. MORVANT, JUDGE
Elizabeth B. Desselle Counsel for Defendant -Appellant Baton Rouge, Louisiana Louisiana Department of Public Safety Corrections, et al.
Thomas V. Alonzo Counsel for Petitioner -Appellee Lafayette, Louisiana Blaire Duhon
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: AFFIRMED. CHUTZ, J.
Defendant -appellant, the Louisiana Department of Public Safety &
Corrections ( the Department), appeals a district court judgment ordering the
Department to classify as a non-violent offense the vehicular homicide conviction
of appellee, Blaire Duhon ( petitioner), an inmate in the custody of the Department.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 24, 2014, petitioner committed a vehicular homicide while under
the influence of alcohol. She pled guilty to that offense on August 21, 2015, and
was sentenced that date to twenty-five years imprisonment at hard labor, with all
but ten years suspended, with credit for time served, and a fine of $2, 000. 00, plus
court costs.
In 2016, petitioner filed Administrative Remedy Procedure ( ARP) No.
HDQ- 2016- 1342. She requested that her sentence be recalculated as a non-violent
rather than a violent offense and that her Master Prison Record be amended to
reclassify her vehicular homicide conviction from a violent to a non-violent
offense. Under La. R. S. 15: 571. 3, the classification of an offense as violent or
non-violent affects the rate at which good time credit is earned.
On November 17, 2016, the Department denied petitioner' s second -step
request, stating:
Your request is concerning Vehicular Homicide listed as a crime of violence under LA R.S. 14: 2. The crime was effective for any one who commits the charge of Vehicular Homicide on or after March 19, 2013 and prior to May 28, 2014, according to the Louisiana Supreme Court, State vsr.] Oliphant[, 12- 1176 ( La. 3/ 19/ 13), 113 So. 3d 165]. You committed your charge on April 24, 2014, therefore, this court ruling applies to you. Your time is computed correctly under ACT 1099....
Following the denial of her ARP, petitioner filed a petition for judicial review in
the Nineteenth Judicial District Court. Upon reviewing the matter, a commissioner
2 recommended reversing the Department' s refusal to reclassify petitioner' s offense
as a non- violent offense. The commissioner concluded the Department' s denial of
petitioner' s ARP was manifestly erroneous and in violation of her statutory and
constitutional rights. In accordance with the commissioner' s recommendation, on
November 18, 2020, the district court signed a judgment reversing the denial of
petitioner' s ARP and ordering the Department to " calculate the Petitioner' s
vehicular homicide sentence ... as a non-violent offense for purposes of good time
eligibility." The Department has now appealed, arguing in a single assignment of
error that the district court legally erred in reversing its agency decision without
finding that the decision was manifestly erroneous or clearly wrong.
DISCUSSION
The Department argues petitioner' s offense is properly classified as a crime
of violence because the offense was committed after the Supreme Court' s decision
in State v. Oliphant, 12- 1176 ( La. 3/ 19/ 13), 113 So. 3d 165. In Oliphant, the
Supreme Court held the defendant' s vehicular homicide conviction was a violent
offense under the general definition provided by La. R.S. 14: 2( B), even though
vehicular homicide was not one of the offenses specifically enumerated as a
violent offense at that time. 113 So. 3d at 173. Additionally, the Department
points out that petitioner committed the offense before the legislature amended La.
R.S. 14: 2( B)' and 14: 32. 1( C), effective May 28, 2014, to provide that a vehicular
homicide is a crime of violence only if the offender' s blood alcohol concentration
BAC) exceeds 0. 20 percent. The Department argues these amendments are not
Louisiana Revised Statutes 14: 2( B)( 46) was added to specifically enumerate vehicular homicide as a crime of violence when the offender' s blood alcohol concertation exceeded 0. 20 percent by weight at the time of the offense. Louisiana Revised Statutes 14: 32. 1( C) was added to provide that one convicted of vehicular homicide should be sentenced as one convicted of a crime of violence if the offender' s blood alcohol concertation exceeded 0.20 percent by weight at the time of the offense.
Z Louisiana Acts 2014, No. 280, § 2 provided that the amendments to La. R. S. 14: 2( B) and 14: 32. 1 were to become effective upon signature of the governor or, if not signed by the governor, upon expiration of the delay for bills to become law without signature of the governor. 3 applicable to petitioner' s offense because her offense was committed
approximately one month before the May 2014 effective date of the statutory
amendments, and the legislature expressed no retroactive intent. Accordingly, the
Department argues the district court legally erred in reversing its agency decision
in the absence of clear or manifest error in its decision.3
In Louisiana, the law in effect at the time an offense is committed generally
dictates the penalty applicable to a defendant upon conviction. State v. Holloway,
15- 1233 ( La. 10/ 19/ 16), 217 So. 3d 343, 347. However, there are exceptions to this
rule when the legislature indicates an intention that the law be applied retroactively
and doing so does not violate the ex post facto prohibitions in the state and federal
constitutions. 4 The central inquiry in determining whether retroactive application
of a law violates ex post facto prohibitions is " whether the change alters the
definition of criminal conduct or increases the penalty." Holloway, 216 So. 3d at
348, quoting State ex rel. Olivieri v. State, 00- 0172 ( La. 2/ 21/ 01), 779 So. 2d 735,
744. When application of the new law does not make the punishment more
burdensome and potentially is advantageous to the defendant, as in this case, the ex
post facto prohibitions are not implicated and the new law possibly can be
considered as an ameliorative change. See Holloway, 216 So. 3d at 348.
Petitioner' s offense was committed approximately fourteen months after the
Oliphant decision holding that a vehicular homicide involving an offender with a
BAC of 0. 247 percent was a crime of violence and one month before the
legislature amended La. R.S. 14: 2( B) and 14: 32. 1 to provide that vehicular
3 Under the Corrections Administrative Remedy Procedure, La. R.S. 15: 1171, et seq., judicial review of an adverse decision by the Department is available pursuant to La. R.S. 15: 1177. The district court may reverse or modify the Department' s 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, capricious, or characterized by an abuse of discretion; or ( f) manifestly erroneous. La. R.S. 15: 1177( A)( 9).
4 See U. S. Const. art. I, § 10 and La. Const. art. 1, § 23. 4 homicide is a crime of violence only when the offender' s BAC exceeds 0. 20
percent.
In Holloway, where the defendant was sentenced in 2014 for a vehicular
homicide committed in 2007 when he had a blood alcohol level of 0. 051 percent,
the Supreme Court held:
T] here is an indication the legislature did not intend for an offender like Holloway [ offenders with a BAC not exceeding 0. 20 percent] to be treated as having committed a crime of violence. Following the Oliphant decision, and eight days after Holloway was sentenced, the legislature amended the enumerated list of offenses in La. R.S. 14: 2( B) to include vehicular homicide, but only when " the operator' s BAC exceeds 0. 20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood." La. R.S. 14: 2( B)( 46). As noted above, Holloway registered a BAC of 0. 051 percent.
Holloway, 217 So. 3d at 349.
Based on its interpretation of legislative intent, the Supreme Court indicated the
vehicular homicide in Holloway should not be classified as a crime of violence
under Oliphant even though the offender committed the offense in 2007, plead
guilty in January 2014, and was sentenced eight days before the effective date of
the amendment to La. R.S. 14: 2( B), which placed a limit on those vehicular
homicides that could be classified as violent offenses. Id.
We believe the same rationale for retroactively applying the amendments to
La. R.S. 14: 2( B) and 14: 32. 1 is applicable in the instant case, particularly since the
petitioner' s conviction and sentencing occurred after the effective date of the
amendments. Under the amended versions of La. R.S. 14: 2( B) and 14: 32. 1,
petitioner' s vehicular homicide conviction could be classified as a violent offense
only if her BAC exceeded 0. 20 percent. Moreover, there is no ex post
facto violation because application of the amendments to petitioner' s conviction
for an offense committed prior to the effective date of the amendments will have
an ameliorative effect and does not increase the penalty she was exposed to. An
examination of the record reveals that the State did not make any allegation or
W present any evidence concerning petitioner' s BAC at the time of the offense, either
in the bill of information or at the Boykin hearing where she pled guilty.
Accordingly, there is no basis to classify petitioner' s vehicular homicide
conviction as a crime of violence.'
CONCLUSION
For these reasons, the November 18, 2020 judgment in favor of petitioner,
Blaire Duhon, ordering defendant, the Louisiana Department of Public Safety &
Corrections, to calculate petitioner' s vehicular homicide conviction as a non-
violent offense for purposes of good time eligibility is hereby affirmed. The
Department is to pay all costs of this appeal, in the amount of $811. 50.
AFFIRMED.
5 The instant case is distinguishable on its facts from Gerald v. Louisiana Department of Public Safety and Corrections, 2021 CA 0130, also handed down this date. In this case, the district court did not designate the petitioner' s offense as a crime of violence. Rather, the Department made an administrative decision to classify her conviction as a violent offense. Thus, an ARP was the proper procedure for her to challenge the Department's decision to classify her as a violent offender, and that decision was properly reviewable by the district court on a petition for judicial review. Unlike the instant case, the district court in Gerald designated the petitioner's offense as a crime of violence, and the Department merely carried out the sentence imposed. Because the petitioner in Gerald actually challenged the legality of the sentence itself rather than a departmental administrative decision, his claim should have been raised through either a motion for reconsideration of sentence, a direct appeal, or a motion to correct an illegal sentence. Madison v. Ward, 00- 2842 ( La. App. 1 st Cir. 7/ 3/ 02); 825 So. 2d 1245, 1255 ( en banc). The district court therein lacked authority to consider the petitioner's illegal sentence claim on a petition for judicial review.