Anthony Gallo v. Louisiana Department of Public Safety and Corrections ( 2024 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2023 CA 0913
is and
2023 CW 0692
ANTHONY GALLO
VERSUS
LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS
MAY 2 3 2024
Judgment Rendered:
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 722098
Honorable Wilson E. Fields, Judge Presiding
Anthony Gallo Plaintiff/Appellant
Angie, Louisiana Pro Se
Jonathan R. Vining Counsel for Defendant/ Appellee
Baton Rouge, Louisiana Louisiana Department of Public
Safety and Corrections
BEFORE: McCLENDON, HESTER, AND MILLER, 33.
McCLENDON, J.
The plaintiff, an inmate in the custody of the Louisiana Department of Public Safety
and Corrections ( DPSC), appeals a district court judgment dismissing his petition for
judicial review. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Anthony Gallo is an inmate currently incarcerated at Rayburn Correctional Center
in Angie, Louisiana, serving an eighteen -year sentence for the offense of vehicular
homicide, a violation of LSA- R.S. 14: 32. 1. The offense occurred on March 17, 2018, and
resulted in a conviction and sentence on July 29, 2019. Additionally, Mr. Gallo previously
committed the offense of attempted aggravated rape on September 29, 1985, for which
he was sentenced on October 30, 1986, following a jury trial. At the time of the 2018
offense, vehicular homicide was listed as a crime of violence, when the operator's blood
alcohol concentration exceeds . 20 percent. See LSA- R. S. 14: 2( 6)( 46). Also, at the time
of the 2018 offense, attempted aggravated rape was listed as a crime of violence. See
LSA- R. S. 14: 2( 6)( 9).
On August 9, 2022, Mr. Gallo filed a Petition for Judicial Review of the final agency
decision of DPSC in Administrative Remedy Procedure ( ARP) No. ARDC- 2020- 67, in
accordance with LSA- R. S. 15: 1171, et seq. Therein, Mr. Gallo argued inaccuracies in his
master prison record regarding jail credits, parole eligibility, and good time. Specifically,
Mr. Gallo argued that the 1985 sex offense, which was used as a crime of violence with
his 2018 offense to deny him good time eligibility under Act 150 of the 1994 regular
legislative session, should not be used as a crime of violence, since the 1985 offense was
committed before the enactment of Act 150. Therefore, according to Mr. Gallo, his only
crime of violence was the vehicular homicide conviction. Mr. Gallo sought relief for good
time eligibility without the restrictions of Act 150 and also for parole eligibility at 75% of
the imposed sentence.
After service, DPSC filed an answer as well as the entire administrative record of
ARP No. ARDC- 2020- 67 into the record. The record shows that Mr. Gallo pursued the
administrative remedy procedure through the required steps. In the first step, DPSC
recognized that there were inaccuracies in Mr. Gallo' s master prison record, determining
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that Mr. Gallo' s time computation pursuant to Act 280 of 2017 was incorrect, as Mr. Gallo' s
sex offense was committed in 1985, which was not listed as crime of violence at that
time. Therefore, in the first step response, it was determined that Mr. Gallo would serve
his time under Act 1099, with parole eligibility after serving 85% of his imposed sentence.
A new prison record was attached to the response, and Mr. Gallo's request for
administrative remedy was denied.
In the second step response, DPSC determined that Mr. Gallo's jail credit was
correct as calculated, that his parole eligibility date was correct at 85% of his sentence,
but that the good time Act was incorrect. Because both of Mr. Gallo's offenses in 2018
were enumerated crimes of violence under LSA- R. S. 14: 2, DPSC found that Mr. Gallo was
serving his second conviction for a crime of violence. Accordingly, DPSC determined that
LSA- R. S. 15: 571. 3 prohibited the earning of regular good time (or diminution of sentence)
by Mr. Gallo, as provided under Act 150 of 1994. 1 In the second step response, DPSC
granted Mr. Gallo' s request in part and corrected the time computation to show it was
under Act 150, without the benefit of regular good time.
On September 30, 2022, after Mr. Gallo filed his petition for judicial review, DPSC
issued an amended second step response. With regard to parole eligibility, DPSC found
that Mr. Gallo's release date under Act 280 of 2017 was calculated at 85% in error and
that pursuant to LSA- R. S. 15: 574.4(A)( 1)( b)( i), Mr. Gallo was entitled to parole eligibility
after serving 75% of his sentence.2 As to his good time calculation, DPSC found that Mr.
Gallo was not entitled to regular good time, finding Act 280 of 2017 not applicable
because of Mr. Gallo's prior conviction for a crime of violence. DPSC stated that "[ i] t does
not matter the date you were convicted of your first crime of violence. Therefore, based
on your second conviction of a crime of violence, your good time falls under Act 150 of
At the time of Mr. Gallo's 2018 offense, LSA- R. S. 15: 571. 3( D)( 1) provided that "[ d] iminution of sentence
shall not be allowed an offender in the custody of the Department of Public Safety and Corrections if the
instant offense is a second offense crime of violence as defined by R. S. 14: 2( 6)."
2 Louisiana Revised Statutes 15: 574.4( A)( 1)( b)( i) provides:
A person, otherwise eligible for parole, whose instant offense is a second conviction of a
crime of violence as defined in R. S. 14: 2( 6) or a first or second conviction of a sex offense
as defined in R. S. 15: 541 shall be eligible for parole consideration upon serving seventy-
five percent of the sentence imposed. A person convicted a third or subsequent time of a
crime of violence as defined in R. S. 14: 2( 6) or a third or subsequent time of a sex offense
as defined in R. S. 15: 541 shall not be eligible for parole.
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1994 and you are not eligible to earn good time." DPSC found Mr. Gallo's time
computation to be correct, and denied his request for relief.
On March 30, 2023, the Commissioner issued its report and recommendation. 3
Noting that three different prison rap sheets were issued between the first step response,
second step response, and the amended second step response, the Commissioner
understood why Mr. Gallo was questioning the validity of his time computation. However,
the Commissioner agreed with DPSC' s amended second step response and found that Mr.
Gallo presented no evidence, statutory law, or case law to show that his current offense
is not his second crime of violence conviction. The Commissioner concluded that Mr.
Gallo failed to establish that DPSC' s decision was arbitrary, capricious, manifestly
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erroneous, or in violation of his statutory or constitutional rights. Therefore, the
Commissioner recommended that the district court affirm DPSC' s final agency decision
and dismiss Mr. Gallo' s appeal with prejudice at his costs.
On May 16, 2023, after a careful de novo consideration of the entire record, the
district court signed its judgment, adopting the Commissioner's report as its reasons and
dismissing Mr. Gallo's appeal of ARP No. ARDC- 2020-67, with prejudice, at his costs. Mr.
Gallo has appealed the district court's judgment.5
DISCUSSION
In this appeal, Mr. Gallo contends that his vehicular homicide conviction should
not be considered a second crime of violence because his 1985 offense of attempted
aggravated rape was not considered a crime of violence until the enactment of Act 150
in 1994. Mr. Gallo also maintains that the retroactive application of the law results in a
violation of the ex post facto clauses in the United States and Louisiana constitutions.
3 In its report, the Commissioner noted the rule to show cause requesting Mr. Gallo to explain why he was
seeking review of a June 2020 final decision by DPSC two years after the decision. Mr. Gallo explained that
the delay was due to the COVID pandemic, his transfer between facilities, and the loss of documents he
sent off for copying. The Commissioner stated that because his petition was a request to review a time
computation, it would allow the matter to proceed.
4 We note that the scope of the court's review is limited by LSA- R. S. 15: 1177.
S Mr. Gallo also filed an application for supervisory writs, seeking review of the May 16, 2023 judgment.
On October 10, 2023, this court referred the writ application to this panel for consideration. See Gallo v.
Louisiana Department of Public Safety and Corrections, 2023- 0692 ( La. App. 1 Cir. 10/ 10/ 23)
unpublished). Because the judgment is a final, appealable judgment, and the writ application raises the
same issues raised in the appeal, we need not address the writ application and we deny the writ application
as moot. See In re Durham, 2011- 2239 ( La. App. 1 Cir. 8/ 27/ 12), 2012 WL 3758234, * 2 n. 9
unpublished).
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It is well settled that the law in effect at the time of the commission of the offense
determines the penalty imposed upon a person convicted of that offense. Massey v.
Louisiana Department of Public Safety and Corrections, 2013- 2789 ( La.
10/ 15/ 14), 149 So. 3d 780, 783. Once a sentence is imposed, any change in the law that
later occurs cannot be applied to the convicted person to increase that sentence. Dixon
v. Louisiana Department of Public Safety and Corrections, 2014- 1400 ( La. App. 1
Cir. 4/ 24/ 15), 2015 WL 1882609, * 1 ( unpublished). At the time Mr. Gallo committed
vehicular homicide in 2018, both vehicular homicide, when the operator's blood alcohol
concentration exceeded . 20 percent, and attempted aggravated rape were classified as
crimes of violence under LSA- R. S. 14: 2( 6). Therefore, Mr. Gallo was not eligible for good
time on his vehicular homicide sentence. See LSA- R. S. 15: 571. 3( D). Further, as Mr.
Gallo has only been denied eligibility to seek an early release from the physical custody
of the DPSC, his criminal penalty for vehicular homicide has not been increased. Thus,
in 2018, Mr. Gallo was on notice that he would not be eligible for good time if he
committed another crime of violence, and DPSC' s denial of good time on his vehicular
homicide sentence does not constitute an ex post facto violation. See Marquez v.
Louisiana Department of Public Safety and Corrections, 2023- 0688 ( La. App. 1 Cir.
12/ 27/ 23), So. 3d 2023 WL 8906434, * 2; Victorian v. Louisiana
Department of Public Safety and Corrections, 2016- 0523 ( La. App. 12/ 22/ 16), 2016
WL 7409243, * 2 ( unpublished), writ denied, 2017- 0517 ( La. 5/ 25/ 18), 242 So. 3d 1231;
Dixon, 2015 WL 1882609 at * 1. After a thorough review of the record of these
proceedings, we find no error in the judgment of the district court.
CONCLUSION
For the foregoing reasons, we affirm the May 16, 2023 judgment of the district
court. The costs of this appeal are assessed to Anthony Gallo.
WRIT DENIED; 7UDGMENT AFFIRMED.
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