Dennis Thomas v. Louisiana Department of Public Safety & Corrections ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1314
DENNIS THOMAS
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Judgment rendered: MAY 2 8 2020
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C683603, Sec. 26
The Honorable Richard " Chip" Moore, Judge Presiding
Dennis Thomas DOC # 533237 Plaintiff/Appellant
Louisiana State Penitentiary In Proper Person
Angola, Louisiana
Heather Hood 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 Louisiana Department of Public Safety and
Corrections ( Department) at the Louisiana State Penitentiary challenges a district
court judgment dismissing his petition for judicial review. For the following
reasons, we remand this case to the district court with instructions.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff, Dennis Thomas, is an inmate sentenced to the custody of the
Department. On January 4, 2008, the plaintiff was convicted of manslaughter, a
violation of La. R.S. 14: 31, and sentenced to thirty-three years at hard labor. 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.2 See Holmes v. Louisiana Dept. of Public
Safety and Corrections, 2011- 2221 ( La. App. 1 Cir. 6/ 8/ 12), 93 So. 3d 761, 763,
writ denied, 2012- 1788 ( La. 12/ 14/ 12), 104 So. 3d 436.
On February 21, 2019, the plaintiff filed an Administrative Remedy
Procedure complaint, which was assigned Case No. LSP -2019- 0478, seeking to
have his sentence reviewed in accordance with La. R.S. 15: 1171, et seq. In his
complaint, the plaintiff stated that the Department unlawfully denied him parole
eligibility after serving one-third of his thirty-three year sentence because the
district court did not designate the crime he was convicted of as a crime of
violence. Therefore, the plaintiff argued that he should not have to serve eighty-
five percent of his sentence before receiving parole eligibility.
See 1995 La. Acts, No. 1099, § 1, effective January 1, 1997.
2 Manslaughter is a crime of violence in accordance with La. R.S. 14: 2( 13). See 1994 La. Acts,
No. 73.
2
On April 5, 2019, the Department rejected the plaintiff' s first request.
Subsequently, the plaintiff submitted a second request for administrative remedy,
which was also denied. On May 29, 2019, 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.'
The Department filed an answer to the plaintiff' s petition and attached the entire
administrative record. The commissioner reviewed the record and determined that
the Department properly decided that the plaintiff' s request should be denied, and
his petition for judicial review should be dismissed. On July 23, 2019, the plaintiff
filed a traverse opposing the commissioner' s recommendation. On July 22, 2019,
after a de novo review of the record, the district court signed a judgment that
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.
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. l.
3
CRIME OF VIOLENCE
The plaintiff argues on appeal that the district court erred in finding that the
legislature intended for manslaughter to automatically be designated as a crime of
violence.
The plaintiff further argues that the district court erred in finding that the
plaintiff had to serve eighty- five percent of his thirty-three year sentence before
becoming eligible for parole.
After a thorough review of the record, the plaintiff's brief, and the
commissioner' s recommendation, it is apparent that the plaintiff was convicted of
manslaughter, an enumerated crime of violence under La. R.S. 14: 2. However, the
sentencing court failed to designate the plaintiff' s conviction as a crime of violence
4
mandated by La. C. Cr.P. art. 890. 1. In 2008, when the plaintiff was sentenced,
La. C. Cr.P. art. 890. 1 read as follows:
A. When the court imposes a sentence, the court shall designate
whether the crime involved is a crime of violence or an attempted
crime of violence as defined or enumerated in [ La.] R.S. 14: 2( B).
B.... if a person is convicted of or pleads guilty to a crime of violence
as defined or enumerated in [ La.] R.S. 14: 2( B) and is sentenced to
imprisonment for a stated number of years or months, the sentencing
court may deny or place conditions on eligibility for diminution of
sentence for good behavior[.] ( Emphasis added.)
Because it is mandatory that the district court designate the plaintiff' s crime
as a crime of violence, we remand this matter for correction of the commitment to
designate the plaintiff' s conviction of manslaughter as a crime of violence. See
State v. Parnell, 2017- 550 ( La. App. 5 Cir. 5/ 16/ 18), 247 So. 3d 1116, 1124.
Therefore, this case is remanded to the district court with instructions to amend the
minutes of the sentencing hearing to accurately reflect that manslaughter is a crime
of violence for which the plaintiff must serve eighty-five percent of his sentence as
4 Louisiana Code of Criminal Procedure article 890. 1 was repealed effective August 16, 2011 by
2011 La. Acts, No. 186 and a newer version of La. C. Cr.P. art. 890. 1 was enacted by 2012 La.
Acts, No. 160, effective May 17, 2012, which no longer pertained to the designation of a crime
of violence. Branch v. Louisiana Department of Public Safety and Corrections, 2018- 1303
La. App. 1 Cir. 8/ 8/ 19), 2019 WL 3757592, at * 9 ( unpublished).
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mandated by La. C. Cr.P. art. 890. 1. See State v. Bordelon, 2005- 1507 ( La. App.
3 Cir. 4/ 19/ 06), 929 So. 2d 244, 257, writ denied, 2006- 1549 ( La. 12/ 15/ 06), 944
So.2d 1284; see also Washington v. State, 2019- 360 ( La. App. 5 Cir. 10/ 9/ 19),
2019 WL 5076249, at * 2 ( unpublished).
CONCLUSION
After a review of the record, we remand this case to the district court with
instructions to correct the minute entry for the plaintiff, Dennis Thomas, as set
forth above. Costs of this appeal are to be paid by the Louisiana Department of
Public Safety and Corrections.
REMANDED WITH INSTRUCTIONS.
E