Whittington v. Wall

657 So. 2d 1058, 1995 WL 377052
CourtLouisiana Court of Appeal
DecidedJune 23, 1995
DocketCA 94 2226
StatusPublished
Cited by3 cases

This text of 657 So. 2d 1058 (Whittington v. Wall) 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
Whittington v. Wall, 657 So. 2d 1058, 1995 WL 377052 (La. Ct. App. 1995).

Opinion

657 So.2d 1058 (1995)

Doyle WHITTINGTON
v.
Richard WALL, Warden.

No. CA 94 2226.

Court of Appeal of Louisiana, First Circuit.

June 23, 1995.

*1059 Doyle Whittington, in pro. per.

Patricia Jones and Robert L. Odinet, Attorney General's Office, Baton Rouge, for defendant-appellee.

Before FOIL, WHIPPLE and KUHN, JJ.

WHIPPLE, Judge.

The issue in this appeal is the constitutionality of LSA-R.S. 15:571.3(C). For the following reasons, we affirm the trial court's dismissal of plaintiff's suit with prejudice.

PROCEDURAL HISTORY

This appeal arises from a suit filed by plaintiff, Doyle Whittington, a prisoner in the custody of the Department of Public Safety and Corrections, against Richard Wall, Warden of Avoyelles Correctional Center. In the petition, plaintiff alleges that he is serving an eight year sentence for simple burglary and that pursuant to LSA-R.S. 15:529.1, he was sentenced as an habitual offender, with prior convictions for felony theft and simple robbery.[1] As a result, plaintiff is ineligible to earn diminution of his sentence for good behavior, or "good time," under LSA-R.S. 15:571.3(C). Plaintiff contends that LSA-R.S. 15:571.3(C) violates Article 1, Sections 2, 3 and 20 of the Louisiana Constitution and the 8th and 14th Amendments of the United States Constitution, depriving him of the equal protection of the laws and causing him *1060 to suffer cruel and unusual punishment.[2] Plaintiff's argument is essentially that there are other prisoners who have committed more serious crimes than he but because their "more serious crimes" do not fall within the list of enumerated crimes under LSA-R.S. 15:571.3(C), they are not denied good time credits. As a result, plaintiff contends that he has been unlawfully denied 1,437 days of good time credits toward his sentence.

These claims were asserted at a hearing before a Commissioner.[3] On April 29, 1994, in accordance with the Commissioner's recommendation, the trial court dismissed plaintiff's suit. Plaintiff appeals.

EQUAL PROTECTION[4]

At the time of plaintiff's last crime, conviction and sentence, LSA-R.S. 15:571.3(C) provided:

C. Diminution of sentence shall not be allowed an inmate in the custody of the Department of Corrections if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:
(a) First degree murder.
(b) Second degree murder.
(c) Manslaughter.
(d) Aggravated battery.
(e) Aggravated rape.
(f) Forcible rape.
(g) Simple rape.
(h) Aggravated kidnapping.
(i) Aggravated burglary.
(j) Simple burglary.
(k) Armed robbery.
(l) Simple robbery.
(m) A violation of R.S. 14:67 which is a felony.
(n) A violation of R.S. 14:95 which is a felony.
(o) A violation of R.S. 14:95.1 which is a felony.
(p) a violation of Chapter 9 of Title 40 of the Louisiana Revised Statutes of 1950 ... which is a felony.
(q) A violation of the Louisiana Controlled Dangerous Substances Law ... which is a felony; or
(r) Any felony which is defined as an attempt to commit one of the crimes enumerated in (a) through (q) herein, and
(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and
(3) The inmate's last conviction for the purposes of the Habitual Offender Law, was for a crime: (a) Committed during the period beginning September 16, 1975 through September 9, 1977, inclusive of both dates, and the sentence of the court specifically denies eligibility for diminution of sentence, or (b) committed on or after September 10, 1977.[5]

Plaintiff contends that the statute violates the constitutional guarantee of equal protection of the law because inmates convicted of certain enumerated crimes and sentenced as *1061 habitual offenders under LSA-R.S. 15:529.1 cannot receive diminution of sentence for good behavior, while inmates convicted of other more serious crimes not included in the statute and sentenced as habitual offenders are not denied good time.

Plaintiff argues that while LSA-R.S. 15:571.3(C) prohibiting the awarding of good time to certain habitual offenders may have been constitutional when first enacted, it has since become unconstitutional with the enactment of legislation creating other serious crimes, which crimes have not been added to the list enumerated in subsection C.

We initially note that any distinction of which plaintiff complains has been lessened by the fact that LSA-R.S. 15:571.3 was amended by Acts 1994, Nos. 149 and 150 to now include many of the crimes cited by plaintiff as being just as or more serious than those originally enumerated. In particular, new subparagraph (C)(1)(q) was added to include "[a]ny crime of violence as defined by LSA-R.S. 14:2(13)" and new subparagraph (C)(4) was added to include incest and certain crimes against juveniles. Also, subparagraph (D) was amended to include, in addition to crimes committed while the inmate was under the jurisdiction of the department or placed on probation as a juvenile, any offense which is "a second offense crime of violence as defined by R.S. 14:2(13)."[6]

Nevertheless, we shall address plaintiff's claim that he is being deprived of unequal protection of the laws. The equal protection provisions of the state and federal constitutions do not require absolute equality or precisely equal advantages. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974); McCormick v. Hunt, 328 So.2d 140, 142 (La.1976).

The equal protection clause of the United States Constitution allows states considerable leeway to enact legislation that may appear to affect similarly situated people differently and legislatures are assumed to have acted constitutionally. Clements v. Fashing, 457 U.S. 957, 962, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). Absent a "suspect class" of persons or a "fundamental right," classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the state's goals and only if no grounds can be conceived to justify them. Clements, 457 U.S. at 962, 102 S.Ct. at 2843.

The award of good time is not a federal constitutional right. Rather, it is a matter of state law, the purpose of which is to encourage discipline. State v. Hallal, 351 So.2d 97, 99 (La.1977); McCormick, 328 So.2d at 143. Additionally, plaintiff has not alleged nor is he a member of a suspect class. McGinnis v. Royster, 410 U.S. 263, 268, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). Therefore, if a rational basis exists for the differentiation as alleged by plaintiff, there is no equal protection violation under the federal constitution.[7]

*1062

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Bluebook (online)
657 So. 2d 1058, 1995 WL 377052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittington-v-wall-lactapp-1995.