NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
n 1 COURT OF APPEAL
FIRST CIRCUIT 4,)
Of t- 2019 CA 1042
GARY JAMERSON
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Judgment rendered: MAR 1 0 2020
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C675830, Sec. 24
The Honorable R. Michael Caldwell, Judge Presiding
Gary Jamerson Plaintiff/Appellant Rayburn Correctional Center In Proper Person Angie, Louisiana
Debra A. Rutledge Attorney for Defendant/Appellee Baton Rouge, Louisiana Louisiana Department of Public
Safety and Corrections
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
An inmate in the custody of the Department of Public Safety and
Corrections ( Department) at Rayburn Correctional Center challenges a district
court judgment dismissing his petition for judicial review. For the following
reasons, we affirm the district court' s judgment.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff, Gary Jamerson, is an inmate sentenced to the custody of the
Department. On June 26, 2000, the plaintiff was convicted of the crime of forcible
rape,' a violation of La. R.S. 14: 42. 1, and sentenced to forty years. The sentencing
court ordered that two years of the plaintiff' s sentence be served without benefit of
probation, parole, or suspension of sentence. The Department calculated the
plaintiff' s parole eligibility based on the amended provisions of La. R.S.
15: 574.4( B), effective January 1, 1997, which required that inmates convicted of a
crime of violence serve eighty- five percent of their sentence prior to being deemed
parole eligible.' See Holmes v. Louisiana Dept. of Public Safety and
Corrections, 2011- 2221 ( La. App. I Cir. 6/ 8/ 12), 93 So. 3d 761, 763, writ denied,
2012- 1788 ( La. 12/ 14/ 12), 104 So.3d 436.
On August 21, 2018, the plaintiff filed an Administrative Remedy Procedure
complaint, which was assigned Case Number No. RCC -2018- 63 8, seeking to have
his sentence reviewed in accordance with La. R.S. 15: 1171, et seq. In his
complaint, the plaintiff requested that his master prison record be amended because
he was allegedly eligible for parole consideration on or before January 31, 2020.3
The plaintiff further argued in his complaint that Department' s regulation IS -13- 5,
1 The crime of forcible rape was renamed second degree rape by 2015 La. Acts, Nos. 184 and 256, §§ 1, effective August 1, 2015.
2 At the time the plaintiff was convicted, forcible rape was a crime of violence in accordance with La. R.S. 14: 2.
3 The plaintiff s master prisoner record reflects that he is eligible for parole on February 1, 2034. 2 otherwise known as regulation B -04- 004( F), which required him to serve at least
eighty- five percent of his sentence for a crime of violence, was unconstitutional
and in excess of the statutory authority of the Department.
On September 12, 2018, the Department rejected the plaintiff' s first
request, stating, in pertinent part:
In accordance with Act 790 and Department Regulation # IS -B- 5, Notwithstanding any other law to the contrary, unless eligible for parole at an earlier date, an offender sentenced for a term or terms of imprisonment with or without benefit of parole for 30 years or more shall be eligible for parole consideration upon serving at least 20 years in actual custody and upon reaching the age of 45 ( Act No. 790 of the 1990 Regular Session). Note: Those offenders who committed a
crime of violence on or after January 1, 1997, must also have served at least 85% of the sentence imposed". Your parole eligibility date of February 1, 2034, which was calculated under Act 790 at 85% is correct.
Subsequently, the plaintiff submitted a second request for administrative remedy.
On October 14, 2018, the Department denied his second request.
On November 7, 2018, the plaintiff filed a petition for judicial review with
the Nineteenth Judicial District Court and it was assigned to a commissioner for
evaluation and to make a recommendation to the district court.4 The Department
filed an answer to the plaintiffs petition and attached the entire administrative
record. The commissioner reviewed the record and determined that the plaintiff's
request should be denied and that his petition for judicial review should be
dismissed. On June 11, 2019, the plaintiff filed a traversal opposing the
commissioner' s recommendation. On June 13, 2019, after a de novo review of the
record, the district court signed a judgment that adopted the commissioner' s report,
4 The office of commissioner of the 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. La. R.S. 13: 713( A). 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); Abbott v. LeBlanc, 2012- 1476 ( La. App. 1 Cir. 3/ 25/ 13), 115 So. 3d 504, 505 n. I. 3 affirmed the Department' s decision, and dismissed the plaintiff' s claim with
prejudice. From this judgment, the plaintiff appeals.
STANDARD OF REVIEW
On review of the district court' s judgment in a suit for judicial review under
La. R. S. 15: 1177, no deference is owed by the court of appeal to the factual
findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court
of appeal. Williams v. Louisiana Department of Public Safety and
Corrections, 2018- 0268 ( La. App. 1 Cir. 9/ 21/ 18), 257 So. 3d 690, 692- 93.
Therefore, we shall conduct a de novo review.
DISCUSSION
In sum, the plaintiff argues on appeal that the Department improperly
calculated his sentence to require that he remain incarcerated and ineligible for
parole consideration until he serves eighty- five percent of his sentence due to his
status as a violent offender. The district court' s finding that the plaintiff's sentence
was subject to the eighty-five percent rule was a reference to La. R.S.
15: 574. 4( B), 5 which requires that a person convicted of a crime of violence, and
not otherwise ineligible for parole, shall serve at least eighty-five percent of the
sentence imposed, before being eligible for parole. Once an inmate has fulfilled
the terms of the sentence imposed by the district court, the Department determines
whether the inmate is eligible to be considered for parole. State v. Chiasson,
2017- 1195 ( La. App. 1 Cir. 11/ 30/ 17), 2017 WL 5952331, at * 1 ( unpublished).
When the plaintiff was sentenced, La. R.S. 15: 574. 4 read as follows:
B. ... a person convicted of a crime of violence and not otherwise
ineligible for parole shall serve at least eighty- five percent of the sentence imposed, before being eligible for parole. The victim or
5 See 1995 La. Acts, No. 1099, § 1, effective January 1, 1997.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
n 1 COURT OF APPEAL
FIRST CIRCUIT 4,)
Of t- 2019 CA 1042
GARY JAMERSON
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Judgment rendered: MAR 1 0 2020
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C675830, Sec. 24
The Honorable R. Michael Caldwell, Judge Presiding
Gary Jamerson Plaintiff/Appellant Rayburn Correctional Center In Proper Person Angie, Louisiana
Debra A. Rutledge Attorney for Defendant/Appellee Baton Rouge, Louisiana Louisiana Department of Public
Safety and Corrections
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
An inmate in the custody of the Department of Public Safety and
Corrections ( Department) at Rayburn Correctional Center challenges a district
court judgment dismissing his petition for judicial review. For the following
reasons, we affirm the district court' s judgment.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff, Gary Jamerson, is an inmate sentenced to the custody of the
Department. On June 26, 2000, the plaintiff was convicted of the crime of forcible
rape,' a violation of La. R.S. 14: 42. 1, and sentenced to forty years. The sentencing
court ordered that two years of the plaintiff' s sentence be served without benefit of
probation, parole, or suspension of sentence. The Department calculated the
plaintiff' s parole eligibility based on the amended provisions of La. R.S.
15: 574.4( B), effective January 1, 1997, which required that inmates convicted of a
crime of violence serve eighty- five percent of their sentence prior to being deemed
parole eligible.' See Holmes v. Louisiana Dept. of Public Safety and
Corrections, 2011- 2221 ( La. App. I Cir. 6/ 8/ 12), 93 So. 3d 761, 763, writ denied,
2012- 1788 ( La. 12/ 14/ 12), 104 So.3d 436.
On August 21, 2018, the plaintiff filed an Administrative Remedy Procedure
complaint, which was assigned Case Number No. RCC -2018- 63 8, seeking to have
his sentence reviewed in accordance with La. R.S. 15: 1171, et seq. In his
complaint, the plaintiff requested that his master prison record be amended because
he was allegedly eligible for parole consideration on or before January 31, 2020.3
The plaintiff further argued in his complaint that Department' s regulation IS -13- 5,
1 The crime of forcible rape was renamed second degree rape by 2015 La. Acts, Nos. 184 and 256, §§ 1, effective August 1, 2015.
2 At the time the plaintiff was convicted, forcible rape was a crime of violence in accordance with La. R.S. 14: 2.
3 The plaintiff s master prisoner record reflects that he is eligible for parole on February 1, 2034. 2 otherwise known as regulation B -04- 004( F), which required him to serve at least
eighty- five percent of his sentence for a crime of violence, was unconstitutional
and in excess of the statutory authority of the Department.
On September 12, 2018, the Department rejected the plaintiff' s first
request, stating, in pertinent part:
In accordance with Act 790 and Department Regulation # IS -B- 5, Notwithstanding any other law to the contrary, unless eligible for parole at an earlier date, an offender sentenced for a term or terms of imprisonment with or without benefit of parole for 30 years or more shall be eligible for parole consideration upon serving at least 20 years in actual custody and upon reaching the age of 45 ( Act No. 790 of the 1990 Regular Session). Note: Those offenders who committed a
crime of violence on or after January 1, 1997, must also have served at least 85% of the sentence imposed". Your parole eligibility date of February 1, 2034, which was calculated under Act 790 at 85% is correct.
Subsequently, the plaintiff submitted a second request for administrative remedy.
On October 14, 2018, the Department denied his second request.
On November 7, 2018, the plaintiff filed a petition for judicial review with
the Nineteenth Judicial District Court and it was assigned to a commissioner for
evaluation and to make a recommendation to the district court.4 The Department
filed an answer to the plaintiffs petition and attached the entire administrative
record. The commissioner reviewed the record and determined that the plaintiff's
request should be denied and that his petition for judicial review should be
dismissed. On June 11, 2019, the plaintiff filed a traversal opposing the
commissioner' s recommendation. On June 13, 2019, after a de novo review of the
record, the district court signed a judgment that adopted the commissioner' s report,
4 The office of commissioner of the 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. La. R.S. 13: 713( A). 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); Abbott v. LeBlanc, 2012- 1476 ( La. App. 1 Cir. 3/ 25/ 13), 115 So. 3d 504, 505 n. I. 3 affirmed the Department' s decision, and dismissed the plaintiff' s claim with
prejudice. From this judgment, the plaintiff appeals.
STANDARD OF REVIEW
On review of the district court' s judgment in a suit for judicial review under
La. R. S. 15: 1177, no deference is owed by the court of appeal to the factual
findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court
of appeal. Williams v. Louisiana Department of Public Safety and
Corrections, 2018- 0268 ( La. App. 1 Cir. 9/ 21/ 18), 257 So. 3d 690, 692- 93.
Therefore, we shall conduct a de novo review.
DISCUSSION
In sum, the plaintiff argues on appeal that the Department improperly
calculated his sentence to require that he remain incarcerated and ineligible for
parole consideration until he serves eighty- five percent of his sentence due to his
status as a violent offender. The district court' s finding that the plaintiff's sentence
was subject to the eighty-five percent rule was a reference to La. R.S.
15: 574. 4( B), 5 which requires that a person convicted of a crime of violence, and
not otherwise ineligible for parole, shall serve at least eighty-five percent of the
sentence imposed, before being eligible for parole. Once an inmate has fulfilled
the terms of the sentence imposed by the district court, the Department determines
whether the inmate is eligible to be considered for parole. State v. Chiasson,
2017- 1195 ( La. App. 1 Cir. 11/ 30/ 17), 2017 WL 5952331, at * 1 ( unpublished).
When the plaintiff was sentenced, La. R.S. 15: 574. 4 read as follows:
B. ... a person convicted of a crime of violence and not otherwise
ineligible for parole shall serve at least eighty- five percent of the sentence imposed, before being eligible for parole. The victim or
5 See 1995 La. Acts, No. 1099, § 1, effective January 1, 1997.
M victim' s family shall be notified whenever the offender is to be released.
Generally, La. R.S. 15: 574.4( B) denied parole eligibility to a person convicted of a
crime of violence and not otherwise ineligible for parole unless he had served at
least eighty-five percent of the sentence imposed. Cole v. Louisiana Dept. of
Public Safety and Corrections, 2006- 1955 ( La. App. 1 Cir. 11/ 2/ 07), 2007 WL
3229141, at * 3 ( unpublished), writ denied, 2008- 0365 ( La. 10/ 31/ 08), 994. So. 2d
530. Pursuant to La. R.S. 14: 2, forcible rape is listed as a crime of violence. Thus,
the commissioner' s finding in accordance with La. R.S. 15: 574. 4( B) under the
facts of this case does not constitute error. Therefore, we find that the district court
was correct in determining that the plaintiff must serve at least eighty-five percent
of his sentence for forcible rape, a crime of violence, before becoming eligible for
parole consideration as mandated by La. R. S. 15: 574. 4. See McLelland v.
Goodwin, 2012- 1716 ( La. App. 1 Cir. 4/ 26/ 13), 2013 WL 1791025, at * 2
unpublished). For these reasons, we conclude that the Department and the district
court did not err in concluding that the plaintiff is ineligible for parole
consideration.
CONCLUSION
After a thorough review, we find that the record amply supports the district
court' s judgment, rendered in accordance with the recommendation of the
commissioner. Accordingly, the district court' s June 13, 2019 judgment,
dismissing Gary Jamerson' s petition for judicial review without prejudice, is
affirmed. No costs are assessed in this pauper suit.
AFFIRMED.