Lay v. La. Dept. of Correction—Stalder

• Decision Date: 01 April 1999
• Docket Number: No. 98 CA 0592.,98 CA 0592.
• Citation: 734 So.2d 782
• Parties: Richard LAY and Similar Situated v. LA. DEPT. OF CORRECTION—Richard STALDER—Secretary & State of Louisiana Thru Richard IEYOUB-Attorney General.
• Court: Court of Appeal of Louisiana — District of US

Page 782

734 So.2d 782

Richard LAY and Similar Situated v. LA. DEPT. OF CORRECTION—Richard STALDER—Secretary & State of Louisiana Thru Richard IEYOUB-Attorney General.

No. 98 CA 0592.

Court of Appeal of Louisiana, First Circuit.

April 1, 1999.

As Amended April 8, 1999.

COPYRIGHT MATERIAL OMITTED

Richard Lay, Angola, Plaintiff-Appellant, pro se.

Edward A. Songy, Jr., Baton Rouge, for La. Dept. of Public Safety & Corrections, Defendant-Appellee.

Before: CARTER, C.J., SHORTESS and WHIPPLE, JJ.

SHORTESS, J.

Richard Lay, an inmate at the Louisiana State Penitentiary, filed a petition for judicial review asserting a plethora of claims. He sought a declaration that sentencing him under the habitual-offender statute violated the Double-Jeopardy clauses of the United States and Louisiana Constitutions because both that statute and the statute under which he was convicted are enhancement statutes. He sought to enjoin his sentence and conviction, alleging his sentence was unlawful because the Department of Public Safety and Corrections (DPSC) classified him as a third-felony offender and denied him parole eligibility and diminution of sentence for good behavior (good time), even though he was sentenced as a second-felony offender under the habitual-offender law. He contended DPSC's denial of parole eligibility to him is also wrong because the trial court sentenced him to seven and one-half years at hard labor, with only two and one-half years of that term to be without probation, parole, or suspension of sentence, and DPSC had no authority to correct the illegally-lenient sentence. He also sought damages and certification of a class action "as to all present & future prisoners that are sentenced to hard labor as to wrongful classification in violation of sentencing court[s] mandates."¹ In his "First Amended Complaint," he also contended Louisiana Revised Statute 15:571.3(C)(2)(3) is unconstitutional because inmates who commit crimes after September 9, 1977, are subject to a more onerous good-time law than those sentenced between September 16, 1975, and September 9, 1977.

The commissioner reviewed the administrative record and determined that DPSC's decision to classify Lay as ineligible for parole was not arbitrary, capricious, an abuse of its discretion, or in excess of its constitutional or statutory authority. The trial court rendered judgment in accordance with the commissioner's recommendations. Lay appeals.

Lay contends both Revised Statute 15:529.1, the habitual-offender statute, and Revised Statute 40:981.3, which provides a mandatory-minimum sentence for those who manufacture, distribute, or possess drugs within 1,000 feet of a school, are enhancement statutes and thus application of both for one offense violates the constitutional prohibitions against double jeopardy. This argument was recently addressed by the Third Circuit Court of Appeal in State v. Wright.² The court found that Revised Statute 40:981.3 was not an enhancement statute but a substantive statute. The court reasoned that an enhancement statute, such as the habitualoffender law, is not a separate crime and does not contain elements that must be proved by the State at trial. It is applied after the trier-of-fact has determined guilt or innocence. Revised Statute 40:981.3, on the other hand, imposes a mandatory-minimum sentence for a substantive criminal offense, with an element of the offense— manufacture, distribution, or possession in a school zone—that must be proved by the State. As is it not an enhancement statute, the application of the habitual-offender law to a conviction under that statute did not offend the constitutional prohibitions against double jeopardy.

Lay also contends DPSC is violating due process, equal protection, and the separation of powers doctrine by denying him good time pursuant to Revised Statute 15:571.3(C) and parole eligibility pursuant to Revised Statute 15:574.4(A)(1). Lay was convicted of possessing crack cocaine in a school zone. He had previous convictions for felony theft and possession of stolen goods. He was found to be a second-felony offender for purposes of the habitual-offender law. The trial court sentenced Lay to seven and one-half years at hard labor, with two and one-half years to be served without probation, parole, or suspension of sentence.³ DPSC, however, has determined Lay is ineligible for good time or parole.

Revised Statute 15:571.3 denies good time to an inmate who meets three criteria: 1) convicted of certain enumerated crimes, including felony theft and violation of the Louisiana Controlled Dangerous Substances Law; 2) sentenced as a habitual offender; and 3) last conviction, for purposes of the habitual-offender law, for a crime committed on or after September 10, 1977. Lay meets all three of these criteria.

Revised Statute 15:574.4(A)(1) denies parole eligibility to any person convicted of a third or subsequent felony. Lay does not dispute he has been convicted of three felonies. He contends, however, that because the trial judge sentenced him to two and one-half years without benefit of probation or parole, he should be eligible for parole after that time. He relies on State ex rel. Pierre v. Maggio,⁴ a 1984 case in which the Louisiana Supreme Court stated that the trial judge determined the conditions to be imposed on a sentence, and that the custodian's (DPSC) obligation was not to determine those conditions, but to see that the sentence imposed by the trial judge was served.

In subsequent jurisprudence, however, our supreme court has distinguished between parole eligibility, which is determined by the sentence, and eligibility for parole consideration, which is dependent on meeting certain criteria and conditions specified by statute. Thus, an inmate who has parole eligibility under his sentence may not be eligible for parole consideration under statutory law.⁵ In St. Amant v. 19th...