Frederick Campbell v. Louisiana Department of Public Safety & Corrections

• Court: Louisiana Court of Appeal
• Decided: April 19, 2024
• Docket: 2023CA1097
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL f

FIRST CIRCUIT

2023 CA 1097

FREDERICK CAMPBELL

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS

Judgment Rendered APR 19 2024

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 725403

Honorable Wilson E. Fields, Judge Presiding

Frederick Campbell Plaintiff/Appellant Angie, Louisiana Pro Se

Jonathan R. Vining Counsel for Defendant/ Appellee Baton Rouge, Louisiana Louisiana Department of Public Safety & Corrections

BEFORE: McCLENDON, HESTER, AND MILLER, 13. McCLENDON, 3.

Appellant, an inmate in the custody of the Louisiana Department of Public Safety

and Corrections ( DPSC), appeals the portion of the trial court's judgment affirming DPSC' s

decision finding him ineligible for parole. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant herein, Frederick Campbell, was previously convicted of felony carnal

knowledge of a juvenile in violation of LSA- R. S. 14: 80. 1 As a habitual offender, Mr.

Campbell was sentenced to twenty years imprisonment on March 18, 2010.

On July 14, 2022, Mr. Campbell filed a grievance pursuant to the Louisiana

Corrections Administrative Remedy Procedure ( CARP), LSA- R. S. 15: 1171, et seq. Mr.

Campbell' s grievance was designated as Administrative Remedy Procedure ( ARP) Number

RCC -2022- 317. Therein, Mr. Campbell argued DPSC was improperly denying him parole

and Certified Treatment & Rehabilitation Program ( CTRP) credits. Mr. Campbell argued

that although the original minute entry from his sentencing indicated he was ineligible for

parole, the trial court amended the minute entry pursuant to a motion for clarification of

sentence and deleted the language denying parole on July 19, 2018, which rendered him

parole eligible[.]" Mr. Campbell further argued he was entitled to parole and CTRP

credits under LSA- R.S. 15: 574. 4 as amended by Act 280 of the 2017 Regular Legislative

Session ( Act 280). 2

DPSC rejected Mr. Campbell' s arguments at both steps of its administrative

procedure. DPSC' s first step response to Mr. Campbell' s ARP stated that as an " offender

class 5 serving on a sex offense listed on [ LSA-] R. S. 15: 541", Mr. Campbell was not

eligible for parole because of his offender class, and he was not eligible for CTRP credits

because his offense was a sex offense. Thus, DPSC concluded that Mr. Campbell' s

I Felony carnal knowledge of a juvenile in violation of LSA- R. S. 14: 80 is presently included in the definition of " sex offense" as defined by LSA- R. S. 15: 541( 24)( a). It was added to the definition by Act 816 of the 2008 Regular Session, effective August 15, 2008.

z Act 280 amended numerous statutes. Tarver v. Louisiana Department of Public Safety & Corrections, 2020- 1126 ( La.App. 1 Cir. 5/ 12/ 21), 326 So. 3d 297, 301, n. 6. In this report, we are only concerned with the amendments to LSA- R. S. 15: 574. 4.

2 complaint was without merit and denied his ARP. DPSC' s second step response

determined that Mr. Campbell' s " request was adequately addressed at the first step."

After DPSC rejected Mr. Campbell' s second request, he filed a petition for judicial

review of DPSC`s decision in the Nineteenth Judicial District Court on November 4, 2022.

DPSC answered Mr. Campbell' s petition, denying that Mr. Campbell was eligible for parole

under Act 280. Mr. Campbell' s petition for judicial review was assigned to a Commissioner

for evaluation. 3 The Commissioner issued a report recommending the trial court affirm

DPSC' s decision finding Mr. Campbell ineligible for parole and reverse DPSC' s decision

finding Mr. Campbell ineligible for CTRP credits. Mr. Campbell traversed the

Commissioner' s report.

The trial court signed a judgment adopting the Commissioner's report on May 22,

2023. It is from this decision that Mr. Campbell appeals, in forma pauperis In a single

assignment of error, Mr. Campbell argues the trial court "erred in holding that [ he] is not

eligible for parole consideration after serving 25% of the imposed sentence in accordance

with Act 280 of the 2017 Regular Legislative Session." 4

STANDARD OF REVIEW

An offender aggrieved by an adverse decision rendered pursuant to any

administrative remedy procedure can institute proceedings for judicial review by filing a

petition for judicial review in the 19th JDC. LSA- R. S. 15: 1177, Englade v. Louisiana

Department of Corrections, 2021- 0132 ( La. App. 1 Cir. 12/ 30/ 21), 340 So. 3d 952, 956,

writ denied, 2022- 00209 ( La. 4/ 12/ 22), 336 So. 3d 82. Louisiana Revised Statutes 15: 1177

sets forth the appropriate standard of review by the trial court, which functions as an

appellate court when reviewing DPSC' s administrative decisions. Marchand v.

Louisiana Department of Public Safety and Corrections, 2020- 0747 ( La. App. 1 Cir.

2/ 24/ 21), 322 So. 3d 269, 272, writ denied, 2021- 00457 ( La. 9/ 27/ 21), 324 So. 3d 104.

3 The office of Commissioner of the 19th JDC was created by LSA- R.S. 13: 711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. Englade v. Louisiana Department of Corrections, 2021- 0132 ( La. App. 1 Cir. 12/ 30/ 21), 340 So. 3d 952, 956- 57, writ denied. 2022- 00209 ( La. 4/ 12/ 22), 336 So. 3d 82. The Commissioner's written findings and recommendations are submitted to the trial court judge, who may accept, reject, or modify them. LSA- R. S. 13: 713( C)( 5); Englade, 340 So. 3d at 957.

4 DPSC has not answered the appeal. Accordingly, the issue of Mr. Campbell' s eligibility for CTRP credits is not before this court on appeal.

3 Judicial review is mandated to be conducted by the trial court without a jury and must

be confined to the record. LSA- R. S. 15: 1177( A)( 5). Specifically, the court may reverse or

modify the administrative decision only if substantial rights of the appellant have been

prejudiced because the administrative 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 or capricious or

characterized by abuse of discretion, or ( 6) manifestly erroneous in view of the reliable,

probative and substantial evidence on the whole record. LSA- R. S. 15: 1177( A)( 9);

Marchand, 322 So. 3d at 272- 73. On review of the trial court's judgment under LSA- R. S.

15: 1177, the appellate court reviews the administrative record de novo, owing no

deference to the factual findings or legal conclusions of the trial court, just as no

deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions

of the court of appeal. Marchand, 322 So. 3d at 273.

DISCUSSION

As set forth above, Mr. Campbell' s master prison record reflects that on March 18,

2010, Mr. Campbell was sentenced to twenty years imprisonment for felony carnal

knowledge of a juvenile in violation of LSA- R. S. 14: 80. The master prison record further

identifies Mr. Campbell as belonging to " Offender Class: 05" and reflects that he is not

eligible for parole. On appeal, Mr. Campbell claims that he " is and has been parole eligible

since the inception of Act 280 of the 2017 Regular Session." We disagree.

We first address Mr. Campbell' s argument that the trial court's amendment of the

minute entry to delete the language denying him parole rendered him eligible for parole.

Well- established jurisprudence holds that parole eligibility is to be determined by DPSC

pursuant to the directives of LSA- R. S. 15: 574.4, not by the trial court. Holmes v.

Louisiana Department of Public Safety and Corrections, 2011- 2221 ( La. App. 1 Cir.

6/ 8/ 12), 93 So. 3d 761, 764, writ denied, 2012- 1788 ( La. 12/ 14/ 12), 104 So. 3d 435.

Generally, DPSC administers the standards governing parole eligibility and determines

whether a particular inmate is eligible for parole consideration by the Board of Parole. In

determining parole eligibility dates, DPSC looks to the applicable statutory criteria set out

in LSA- R. S. 15: 574.4, and " administers these standards and criteria by applying them, as well as other relevant statutes and interpretative jurisprudence, to determine whether or

not a particular inmate is parole eligible, i.e., eligible for parole consideration by the

board." State v. Simmons, 2020- 0695 ( La. App. 1 Cir. 6/ 4/ 21), 327 So. 3d 542, 545, n. 5.

Accordingly, Mr. Campbell' s argument that the trial court' s amended minute entry

determines his parole eligibility fails.

We next consider Mr. Campbell' s argument that he is entitled to parole pursuant

to LSA- R.S. 15: 574. 4, as amended by Act 280. We begin by pointing out that, generally,

parole eligibility is governed by the date of commission of the offense -5 LSA- R.S.

15: 574.4, et seq.; Cuza v. Louisiana Department of Public Safety and

Corrections, 2022- 1286 ( La. App. 1 Cir. 6/ 20/ 23), 2023 WL 4067498, * 3 ( unpublished),

citing Tarver v. Louisiana Department of Public Safety and Corrections, 2020-

1126 ( La. App. 1 Cir. 5/ 12/ 21), 326 So. 3d 297, 303; Brumfield v. Louisiana

Department of Public Safety & Corrections, 2022- 0869 ( La. App. 1 Cir. 12/ 22/ 22),

358 So. 3d 70, 74. The record indicates that Mr. Campbell committed the offense of felony

carnal knowledge of a juvenile on December 10, 2005, and that he was a fifth -time felony

offender. On December 10, 2005, and until Act 280 became effective on November 1,

2017, LSA- R. S. 15: 574. 4( A)( 1) provided that a person convicted of a third or subsequent

felony offense " shall not be eligible for parole." See State v. Lowery, 33, 584 ( La. App.

2 Cir. 6/ 21/ 00), 765 So. 2d 460, 464, n. 3; State v. Parker, 2017- 1263 ( La. App. 1 Or.

12/ 4/ 27), 2017 WL 6021431, writ not considered, 2018- 0483 ( La. 5/ 11/ 18), 241 So. 3d

1017. Thus, under the general rule that parole eligibility is governed by the date of

commission of the offense, as a fifth -time felony offender, Mr. Campbell would have been

ineligible for parole pursuant to the law in effect at the time he committed the instant

offense.

5 Mr. Campbell does not mention or dispute the accuracy of the master prison record on appeal; Mr. Campbell admits in his brief that he committed the offense of carnal knowledge of a juvenile " on or about December 10, 2005"; and Mr. Campbell also admits in his brief that "at the time of conviction, Mr. Campbell was a third or higher felony offender." Thus, the basis for remand that existed in Cuza v. Louisiana Department of Public Safety & Corrections, 2022- 1286 ( La. App. 1 Cir. 6/ 20/ 23), 2023 WL 4067498 unpublished), does not exist in this matter.

5 Further, Mr. Campbell is ineligible for parole under the plain language of LSA- R. S.

15: 574.4(A)( 1)( a) in effect following the enactment of Act 280. As amended by Act 280,

LSA- R. S. 15: 574. 4(A)( 1)( a) provided as follows:

Unless eligible at an earlier date, a person otherwise eligible for parole shall be eligible for parole consideration upon serving twenty-five percent of the sentence imposed. The provisions of this Subparagraph shall not apply to any person whose instant offense is a crime of violence as defined in R. S. 14: 2( 6), a sex offense as defined in R. S. 15: 541, or any offense which would constitute a crime of violence as defined in R. S. 14: 2( 6) or a sex offense as defined in R. S. 15: 541, regardless of the date of conviction. Notwithstanding any provisions of law to the contrary, the provisions of this Subparagraph shall be applicable to persons convicted of offenses prior to and on or after November 1, 2017.

Subsequently, Act 463 of the 2023 Regular Session amended LSA-R. S. 15: 574. 4( A)( 1)( a)

effective August 1, 2023 ( Act 463). Pertinent to this appeal, Act 463 expanded the list of

offenders excluded from the provisions of the subparagraph to include those " whose

instant offense is a fourth or subsequent conviction of a nonviolent felony offense," but

did not otherwise amend LSA- R. S. 15: 574. 4( A)( 1)( a). 6

Mr. Campbell argues he is entitled to the benefit of Act 280 because the instant

offense, felony carnal knowledge of a juvenile in violation of LSA- R. S. 14: 80, was not

classified as a sex offense pursuant to LSA- R. S. 15: 541 at the time of commission on

December 10, 2005. Upon review of the legislative history, it appears that Mr. Campbell

is correct that felony carnal knowledge of a juvenile was not set forth as a sex offense

until 2008. 7 Nevertheless, Mr. Campbell' s argument fails.

Act 280 constituted a substantive amendment to the law governing the amount of

time offenders are required to serve prior to being eligible for parole. See Brumfield,

358 So. 3d at 75. In the absence of contrary legislative expression, substantive laws apply

5 In its present form, LSA- R. S. 15: 574. 4( A)( 1)( a) provides; A. ( 1)( a) Unless eligible at an earlier date, a person otherwise eligible for parole shall be eligible for parole consideration upon serving twenty-five percent of the sentence imposed. The provisions of this Subparagraph shall not apply to any person whose instant offense is a crime of violence as defined in R. S. 14: 2( 6), a sex offense as defined in R. S. 15: 541, or any offense which would constitute a crime of violence as defined in R. S. 14: 2( B) or a sex offense as defined in R. S. 15: 541, or whose instant offense is a fourth or subsequent conviction of a nonviolent felony offense, regardless of the date of conviction. Notwithstanding any provisions of law to the contrary, the provisions of this Subparagraph shall be applicable to persons convicted of offenses prior to and on or after November 1, 2017.

7 See Act 816 of the 2008 Regular Legislative Session, effective August 15, 2008, which amended and re- enacted LSA- R. S. 15: 541( 14. 1) to define the term " sex offense" to include felony carnal knowledge of a juvenile, in violation of LSA- R. S. 14: 50.

R prospectively only. See LSA- C. C. art. 6; Brumfield, 358 So. 3d at 75. Additionally, no

section of the Revised Statutes is retroactive unless it is expressly so stated. LSA- R. S.

1: 2. Thus, it is critical to the issue before us on appeal to determine whether LSA- R. S.

15: 574. 4(A)( 1)( a), as amended by Act 280, explicitly provides for retroactive application

of the substantive changes to parole eligibility contained therein. In this regard, we note

that the second sentence of LSA- R. S. 15: 574. 4(A)( 1)( a) precludes the application of the

subparagraph to " any person whose instant offense is ... a sex offense as defined in

R. S. 15: 541, or any offense which would constitute ... a sex offense as defined in R. S.

15: 541, regardless of the date of conviction." ( Emphasis added). Further, the third

sentence of LSA- R. S. 15: 574.4( A)( 1)( a) explicitly provides, ",[ n] otwithstanding any

provisions of law to the contrary, the provisions of this Subparagraph shall be

applicable to persons convicted of offenses prior to and on or after November

11, 2017." ( Emphasis added). Moreover, as noted above, although LSA- R. S.

15: 574. 4( A)( 1)( a) was subsequently amended by Act 463, Act 463 maintained the

language regarding retroactive application of the substantive changes made to parole

eligibility.

Further, the plain language of LSA- R. S. 15: 574.4( A)( 1)( a), as amended by Act 280

and Act 463, not only explicitly directs retroactive application of the statute, but also

expressly references " a sex offense as defined in R. S. 15: 541," and " any" offense which

would constitute " a sex offense as defined in R. S. 15: 541," " regardless of the date of

conviction." ( Emphasis added). As stated in the Commissioner's report:

In other words, while not a defined sex offense when committed in 2005, carnal knowledge of a juvenile ( R. S. 14: 80) was a defined sex offense under R. S. 15: 541 as of the effective date of Act 284. Therefore, [ Mr. Campbell] is not eligible for parole consideration under Act 2.80[,] nor is he eligible for parole consideration under the old provisions of R. S. 15: 574.4 as a fifth felony offender.

Had the legislature intended for the version of LSA- R. S. 15: 541 in effect at the time an

offense was committed to apply, it would have expressly stated so. Thus, Mr. Campbell

is ineligible for parole under the plain language of LSA- R. S. 15: 574. 4(A)( 1)( a) as

amended by Act 280 and Act 463.

A CONCLUSION

For the foregoing reasons, the May 22, 2023 judgment of the trial court is affirmed.

Costs of this appeal in the amount of $820. 00 are assessed against Frederick Campbell.$

AFFIRMED.

8 Although Mr. Campbell filed his petition for judicial review and his appeal in forma pauperis, because he was unsuccessful in obtaining the relief sought, costs may be assessed against him. See Taplette v. Louisiana Department of Public Safety & Corrections, 2020- 0818 ( La. App. 1 Cir. 2/ 22/ 21), 321. So.3d 425, 430 n. 9, citing Rochon v. Young, 2008- 1349 ( La. App. 1 Or. 2/ 13/ 09), 6 So. 3d 890, 893 n. 1, writ denied, 2009- 0745 ( La. 1/ 29/ 10), 25 So. 3d 824.

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