Blair v. Stalder

• Decision Date: 31 January 2001
• Docket Number: No. 1999 CA 1860.,1999 CA 1860.
• Citation: 798 So. 2d 132
• Parties: Jack L. BLAIR, DOC # 304924 v. Richard L. STALDER, Secretary/Department of Public Safety and Corrections, Mary Cockerham, Records Custodian LSP, and Burl Cain, Warden, Louisiana State Prison.
• Court: Court of Appeal of Louisiana — District of US

798 So.2d 132

Jack L. BLAIR, DOC # 304924 v.Richard L. STALDER, Secretary/Department of Public Safety and Corrections, Mary Cockerham, Records Custodian LSP, and Burl Cain, Warden, Louisiana State Prison.

No. 1999 CA 1860.

Court of Appeal of Louisiana, First Circuit.

January 31, 2001.

Jack L. Blair, DOC # 304924, Angola, in Proper Person.

L. Bruce Dodd, Baton Rouge, for Defendants-AppelleesRichard L. Stalder, et al.

Before: GONZALES and PETTIGREW, JJ., and CRIGLER,¹ J. Pro Tern.

PETTIGREW, Judge.

In this case, plaintiff appeals from a trial court judgment dismissing his petition for judicial review.For the following reasons, we reverse and render.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Jack L. Blair, is an inmate sentenced to the custody of the Louisiana Department of Public Safety and Corrections("DOC").Blair is currently confined at the Louisiana State Penitentiary("LSP") in Angola, Louisiana, and was confined at LSP at all times relevant to this case.The convictions and sentences at issue in this case are as follows:

1.In July 1988, Blair pled guilty to burglary under docket # 13,188 in Forrest County, Mississippi, and was sentenced to 10 years with the Mississippi Department of Corrections.

2.On November 22, 1991, Blair pled guilty to simple burglary under docket # 11501-91 in the 14th Judicial District Court, Parish of Calcasieu, and was sentenced to a term of 7 years with DOC.

3.On August 10, 1992, Blair pled guilty to attempted first degree murder under docket # CR-4238-91 in the 31st Judicial District Court, Parish of Jefferson Davis, and was sentenced to a term of 3 years with DOC to run concurrently with the 7 year term in Calcasieu Parish.

4.On September 2, 1992, Blair pled guilty to Count 1, armed robbery, and Count 2, second degree kidnapping, under docket # 61785 in the 15th Judicial District Court, Parish of Lafayette.On Count 1, he was sentenced to a term of 20 years to run concurrently with any other sentences he was then serving.On Count 2, he was sentenced to a term of 20 years to run consecutively with the 20-year term on Count 1, but concurrently with any other sentences he was then serving.

Contained in the record is a copy of the note of evidence taken on September 2; 1992, concerning Blair's guilty plea in docket # 61785 and the subsequent Boykinization and sentencing by the trial court.Therein, it is apparent that Blair, his defense counsel, the prosecutor, and the sentencing judge, Honorable Byron Hebert, were all in agreement as to the stipulated sentence that Blair would be subjected to in connection with his guilty plea to armed robbery and second degree kidnapping.The following portions of the transcript are particularly enlightening in this regard:

BY THE COURT:

Q.Let me sentence you—this would be count—there's two (2) counts.This is count one (1).Under count one (1), armed robbery, I hereby sentence you to serve twenty (20) years at hard labor in the custody of the Department of Corrections, without the benefit of parole, probation or suspension of sentence.This sentence is to be concurrent with any other charges the defendant is presently serving, except count two (2) of this docket number 61785.

[BY THE DEFENDANT:]

A.Right.

Q.Under count two (2)the Court hereby sentences you to serve twenty (20) years at hard labor, to be consecutive to the sentence imposed on count one (1) of this docket.Two (2) years to be without benefit of parole, probation or suspension of sentence.This sentence is to be concurrent with any other charges the defendant is presently serving, except count one (1) of this docket.

....

BY MR. STANSBURY [Prosecutor]: For the record, the State has agreed that these sentences—I think that's what the Court sentenced Mr. Blair to, are concurrent with any existing sentences, would have nothing to do with any future sentences.

....

BY MR. SALOOM[Defense Counsel]: Your Honor, I've explained to Mr. Blair that the concurrent, and the State agrees that the concurrent part of the sentence means any sentence he's currently serving.There's a sentence serving in Mississippi and Lake Charles and any other ones that he is currently serving and it does not apply to anything he may get in the future.[Emphasis added.]

While serving his time at LSP, Blair received information that led him to believe that DOC was erroneously calculating his time in violation of the plea agreement that he had entered into on September 2, 1992.An evidentiary hearing was conducted on October 19, 1995, before Judge Hebert, to address Blair's concerns regarding the alleged erroneous computations.After hearing arguments from both the State and Blair, who was unrepresented at the time, Judge Hebert clarified for the record that the two 20-year sentences Blair received in docket # 61785 were to run consecutively to each other but concurrently with the other sentences Blair was serving.The judge then stated that although these sentences were to run concurrently with the other sentences, it was "up to the Department of Corrections to apply the proper credits."Judge Hebert further noted that he had "imposed the sentence as agreed by the parties."

In an effort to "clarify the minutes," Judge Hebert ordered as follows:

BY THE COURT: In docket number 61875, the defendant is sentenced to twenty (20) years at hard labor in the custody of the Department of Corrections without benefit of parole, probation or suspension of sentence.This sentence is to be concurrent with the sentence imposed in docket number 11501-91 of the Fourteenth Judicial District Court and number 4238-91 docket number, in the Parish of Jeff Davis.The first number was in the Parish of Calcasieu.And concurrent with the sentence imposed in Mississippi.

It is to run consecutive to the sentence imposed in count two.

In count two of this docket, which is 61785, the defendant is sentenced to serve twenty (20) years at hard labor in the custody of the Department of Corrections; two years to be without benefit of probation, parole or suspension of sentence.And this sentence is to run concurrently with the sentence imposed in docket number 11501-91 of the Fourteenth Judicial District Court in Calcasieu Parish and docket number 4238-91 in the Parish of Jeff Davis, and in the State of Mississippi, any sentence—to be concurrent with any charge in the State of Mississippi.We don't have the docket number—to be furnished.

And the Department of Corrections will be sent—clarification of the sentence will be mailed to the Department of Corrections for their calculations of credit.

BY THE DEFENDANT: I will receive time off of the second sentence while serving this Calcasieu Parish and Lake Charles?

BY THE COURT: It says it's concurrent with those sentences, but I'm going to leave it up to the Department of Corrections to apply the proper credits.And if you do not get the credits that you think you deserve, you have to file suit against the Department of Corrections.

....

BY THE DEFENDANT: If it's concurrent with those charges, shouldn't that be—say I receive time from it?I mean it's obvious that a concurrent sentence is happening at the same time.

BY THE COURT: Right.

BY THE DEFENDANT: Okay.If you sentence me to the second sentence concurrently, sir, I should receive time for it.

BY THE COURT: Right.

BY THE DEFENDANT: Is that correct?

BY THE COURT: I would think you would.I know [the prosecutor] does not think so, but I think you would.

A second evidentiary hearing was held on July 10, 1996, before Judge Hebert.²At this hearing, Judge Hebert maintained his earlier position that it was up to DOC to decide what credit Blair should be given.Judge Hebert again recognized that the sentence had been agreed to by the parties.However, when asked to specify a date from which the sentences are to run concurrent in accordance with La.Code Crim. P. art. 883, the following colloquy occurred:

BY THE COURT: Okay.So for the record we will clarify that, that you will be given credit for time served.And it's concurrent from the day that you began serving the sentences in those pending charges.You will be given credit for those times.

In other words, we can't give you credit for time that you haven't yet served in Mississippi....But the time that you have already served, we will give you credit.It's concurrent, and I will give you credit on each count.Each count will get credit for time served, previously served on those charges that were made concurrent, those three sentences.

BY MR. DANGERFIELD [Defense Counsel]: So that would include the Mississippi sentence for whatever time period he did out of that plus the Calcasieu sentence—

BY THE COURT: Right.

BY MR. DANGERFIELD:—and the Jeff Davis sentence.

BY THE COURT: Right.He'll be given credit for time served.And the concurrent date would be effective as of those dates.

BY MR. DANGERFIELD: Okay.And I guess for clarification purposes—

BY THE COURT: Each count will be given credit for time served.That was his question.They're consecutive, but each count will be given credit for time served, already served on those other charges.[Emphasis added.]

When DOC refused to give Blair the credit for time served that he thought he was entitled to, he instituted Administrative Remedy Procedures ("ARP")No. LSP-98-0498 on January 30, 1998.Blair exhausted his administrative remedies pursuant to La.R.S. 15:1171-15:1177 and was denied relief at all three steps of the ARP.While this ARP was pending, Blair apparently filed a Motion to Correct Illegal Sentence and Specific Enforcement of Plea Agreement in docket # 61785.³In an order dated April 20, 1998, Judge Hebert denied Blair's motion but again reiterated that he had previously clarified Blair's sentence at the evidentiary hearing on July 10, 1996.

There are numerous letters in the record indicating that Blair was persistent, but unsuccessful, in his attempts to get DOC to comply...