January 8, 2015
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Appealed from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, Louisiana. Trial Court Number C618207. Honorable Timothy E. Kelley, Judge Presiding.
Lee Brown, Plaintiff - Appellant, Pro se, Angie, Louisiana.
Debra A. Rutledge, Baton Rouge, Louisiana, Attorney for Defendant -- Appellee Louisiana Department of Public Safety and Corrections.
BEFORE: MCDONALD, CRAIN AND HOLDRIDGE, JJ.
[2014 1059 La.App. 1 Cir. 2]
Petitioner, appellant, Lee A. Brown, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (" the Department" ), appeals the district court's dismissal of his petition for judicial review. Brown filed the petition, asserting the Department failed to designate him as being eligible for treatment pursuant to La. R.S. 15:538(C), which he alleges has resulted in him being wrongfully denied eligibility for diminution of sentence. We affirm the district court's judgment.
Following allegations of alleged aggravated rape involving an eleven-year old victim during January 2004, Brown was indicted with one count of aggravated rape and two counts of sexual battery. The State amended the aggravated rape indictment to one count of oral sexual battery, and it amended the two counts of sexual battery to one count of oral sexual battery, with both amended counts in violation of La. R.S. 14:43.3. During 2007, Brown pled no contest to the amended charges, and he was sentenced to ten years on each count, with the sentences to be served consecutively to each other.
Brown initiated his request for an administrative remedy in August 2012, asserting that he was eligible to participate in a " sex offender treatment plan" pursuant to Department of Correction regulation B-06-002. He asserted he has been
[2014 1059 La.App. 1 Cir. 3] deprived of mental health services, which has resulted in the infliction of " cruel and unusual" punishment. The Department denied Brown's request. Brown's second step request was also denied; the Department found his request was adequately addressed at the first step and there was no reason for administrative intervention. Thereafter, Brown filed a petition for judicial review, asserting the Department failed to enforce their own regulations. As a result, he asserted he was ultimately denied eligibility for diminution of sentence pursuant to La. R.S. 15:538.
Citing La. R.S. 15:571.3(B)(3)(g), the district court commissioner found that Brown is ineligible for diminution of sentence for good behavior, because he was convicted of two counts of oral sexual battery in violation of La. R.S. 14:43.3.
The [2014 1059 La.App. 1 Cir. 4] commissioner thus concluded that the Department's decision to deny Brown's requested relief was not " arbitrary, capricious or manifestly erroneous" or otherwise in violation of constitutional or statutory law. La. R.S. 15:1177A(9). The district court adopted the commissioner's reasons, affirmed the Department's decision, and dismissed Brown's petition for judicial review, with prejudice at his cost.
On appeal, Brown asserts the district court erred in interpreting the applicable statutory law, which error resulted in his ineligibility for the diminution of his sentence in violation of his constitutional rights. Brown also contends the district [2014 1059 La.App. 1 Cir. 5] court's application of the statutory law addressing diminution of sentence for good behavior violates Louisiana's ex post facto laws. As a result, Brown prays that the district court judgment be reversed and seeks remand of this matter to the district court.
Currently and at the time Brown's offenses were committed in 2004, La. R.S. 15:537 provided that a person convicted of or who pleads guilty to any provision of Subpart C of Part II of Chapter 1 of Title 14 of the Louisiana Revised Statues of 1950 [which includes La. R.S. 14:43.3, addressing oral sexual battery], and is sentenced to imprisonment for a stated number of years or months, as Brown was in this matter, " shall not be eligible for diminution of sentence for good behavior."  Prior to the effective date of 1999 La. Acts No. 1209, however, La. R.S. 15:537A provided, in pertinent part, as follows:
If a person is convicted of or pleads guilty to a violation of any provision of Subpart C of Part II ... of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, 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, unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).
1999 La. Acts No. 1209 amended La. R.S. 15:537(A) by deleting the provision that authorized the sentencing court to place conditions on eligibility for diminution of sentence for good behavior and providing instead that the offenders addressed therein " shall not be eligible for diminution of sentence for good behavior."
Currently and in 2004, however, La. R.S. 15:538C provides, in pertinent part, as follows:
(1)(a) No sexual offender, whose offense involved a minor child who is twelve years old or younger; or
(b) Who is convicted two or more times of a violation of R.S. 14:42, 42.1, 43, 43.1, 43.2, 43.3, 43.4, 78, 78.1, or 89.1 shall be eligible [2014 1059 La.App. 1 Cir. 6] for probation, parole, or suspension of sentence or diminution of sentence if imposed as a condition by the sentencing court pursuant to R.S. 15:537(A), unless, as a condition thereof, the offender undergoes a treatment plan based upon a mental health evaluation which plan shall effectively deter recidivist sexual offenses by the offender, thereby reducing risk of reincarceration of the offender and increasing safety of the public, and under which the offender may reenter society....
When initially drafted, La. R.S. 15:538 did not provide for the possibility of a diminution of sentence when the offender underwent a mental health treatment plan, as allowed by the sentencing court pursuant to La R.S. 15:537(A). 1995 La. Acts. No. 1265, § 1. This provision allowing the condition of diminution of sentence was introduced into the statutory framework by 1997 La. Acts. No. 746 at a time when La. R.S. 15:537A still allowed the sentencing court discretion in deciding whether an offender was eligible for diminution of sentence for good behavior. However, when Brown committed the offenses at issue, diminution of sentence was not allowed pursuant to La. R.S. 15:537A for a person convicted of oral sexual battery. Nevertheless, La. R.S. 15:538(C)(1) referenced (and still references) this possible diminution of sentence when the offender undergoes a mental health treatment plan " if imposed as a condition by the sentencing court pursuant to R.S. 15:537(A)."  [2014 1059 La.App. 1 Cir. 7] Thus, Brown urges he should be allowed to participate in such a treatment plan in order that he might be eligible for a diminution of sentence. As a result, this court is faced with interpreting statutory provisions that appear to be in conflict.
Because the fundamental question in all cases of statutory interpretation is legislative intent, the rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Black v. St. Tammany Parish Hosp., 2008-2670 (La. 11/6/09), 25 So.3d 711, 717. One determines the meaning and intent of a law " by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express
terms of the law and with the obvious intent of the legislature in enacting the law." Id., citing Colvin v. Louisiana Patient's Compensation Fund Oversight Bd., 06-1104 (La. 1/17/07), 947 So.2d 15, 19. " The word 'shall' is mandatory and the word 'may' is permissive." Id. Thus, a statute must be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intent of the Legislature in enacting it. Id. The text of the law is the best evidence of legislative intent. La. R.S. § 24:177(B)(1). Courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless if a construction giving force to and preserving all words can legitimately be found. Black, 25 So.3d at 717. Where two statutes deal with the same subject matter, they should be harmonized if possible, as it is the duty of the courts, in the construction of statutes, to reconcile laws. La. C.C. art. 13; Black, 25 So.3d at 717. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Black, 25 So.3d at 717-18.
With these statutory interpretation principles in mind, we find that Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all [2014 1059 La.App. 1 Cir. 8] offenders who are convicted of or plead guilty to sex offenses, including the present offense of oral sexual battery regardless of the mental health treatment that they receive. See Parker v. Louisiana Dep't of Public Safety & Corrections, 13-1355 (La.App. 1st Cir. 3/21/14), 2014 WL 1165861, at 2 (unpublished); State v. H.B., 2006-1436 (La.App.3d Cir. 4/4/07), 955 So.2d 255, 257; State v. Dagenhart, 39,874 (La.App.2d Cir. 8/17/05), 908 So.2d 1237, 1242, writ denied, 2005-2421 (La. 4/24/06), 926 So.2d 539. The mandatory language of La. R.S. 15:537A is thus given effect, and as set forth in La. R. S. 15:538(C)(1), the sentencing judge can determine whether a sexual offender is eligible for probation, parole, or suspension of sentence when he is required to undergo a treatment plan based upon a mental health evaluation. The only portion of La. R.S. 15:538(C)(1) that is not given effect under this statutory construction is that portion of the statute addressing diminution of sentence for the offender who was convicted of or plead guilty to sexual offenses if the mental health treatment plan is imposed as a condition by the sentencing court. To deny such offenders diminution of sentence is consistent with the presumed fair purpose and intent of the Legislature in enacting these laws. When the entire legislative history and the amendments in their chronological context are considered, it is the only meaningful interpretation that harmonizes and reconciles these statutory provisions, along with the provisions of La. R.S. 15:571.3B. When the legislature amended La. R.S. 15:537(A) to expressly provide that certain sexual offenders would not be eligible for diminution of sentence for good behavior using the mandatory
term " shall," the legislature apparently overlooked the fact that it also needed to amend [2014 1059 La.App. 1 Cir. 9] La. R.S. 15:538(C) to delete the reference therein to diminution of sentence where a mental health treatment plan is imposed by the sentencing court. La. R.S. 15:538(C) can still be given meaning, however, when it is interpreted to mean that the sex offenders referenced in the statute are still eligible for probation, parole and suspension of sentence when the offender undergoes the specified treatment plan.
Thus, we conclude that the Department's decision to deny Brown's requested relief was not " arbitrary, capricious or manifestly erroneous" or otherwise in violation of constitutional or statutory law. La. R.S. 15:1177A(9). The district court properly concluded, based on the mandatory language of La. R.S. 15:537(A), that Brown was not eligible for diminution of sentence based on his convictions for oral sexual battery in violation of R.S. 14:43.3.
Further, we find no merit in Brown's assertions that the dismissal of his petition for judicial review violated the ex post facto prohibitions set forth in the federal and state constitution. The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. Massey v. Louisiana Dep't of Public Safety & Correction, 2013-2789, p. 4 (La. 10/15/14), 149 So.3d 780. We have examined Brown's entitlement to diminution of sentence in light of the applicable laws at the time he committed the offenses in question, and we find no merit in his contentions.
For these reasons, we affirm the district court's dismissal of Brown's petition for judicial review. Appeal costs are assessed against appellant, Lee Brown.