ANTHONY J. MONTECINO
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
645, 586 Honorable Wilson Fields, Judge Presiding
Anthony J. Montecino Homer, LA Plaintiff-Appellant, In Proper
Wall Griffin Baton Rouge, LA Attorney for Defendant-Appellee,
Louisiana Department of Public Safety and Corrections
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
J. Montecino, an inmate in the custody of the Louisiana
Department of Public Safety and Corrections (DPSC), appeals a
Nineteenth Judicial District Court judgment that dismissed
his suit on March 30, 2017, with prejudice, and at his cost.
The district court judgment was rendered after de
novo review of the record and adoption of a
Commissioner's Report and Recommendation indicating that
Montecino's petition for relief should be denied. The
Commissioner's report noted that Montecino's
diminution of sentence was calculated under 1995 La. Acts,
No. 1099, which amended La. R.S. 15:571.3, so that Montecino
was deemed to have earned all good time to which he is
entitled at the beginning of his sentence, per DPSC
regulations. His earned good time was forfeited due to
disciplinary infractions; thus, Montecino no longer has any
remaining good time credits.
to the record, Montecino filed a motion for appeal in proper
person, and was granted pauper status. Montecino's
pro se appellate brief fails to comply with the
applicable Uniform Rules - Courts of Appeal, Rule 2-12.4. The
brief does not contain any assignments of error or issues for
review, no record references, no briefing of arguments
confined to the issues on appeal, no district court rulings,
and no jurisdictional statement. While the sanction to be
imposed for a non-conforming brief is discretionary, this
Court routinely considers non-compliant briefs when filed by
pro se parties. See Sheridan v. Pride & Hope
Ministry Family Support Services, 2013-1666 (La.App. 1st
Cir. 5/2/14), 147 So.3d 717, 719; Williams v.
Fischer, 439 So.2d 1111, 1112 (La.App. 1st Cir. 1983).
Thus, in light of Montecino's pro se status
wherein he is representing himself in this case, we will
attempt to determine the substance of his arguments and treat
them as though properly raised.
Montecino is dissatisfied with the Commissioner's report
and recommendation that the DPSC had the authority to
institute a policy that credits and deems earned all good
time to which an offender is entitled at the beginning of his
sentence, as opposed to an older procedure of calculating the
amount earned and/or forfeited each month. Montecino also
believes that the decision in Cao v. Stalder,
2004-0650 (La.App. 1st Cir. 5/6/05), 915 So.2d 851, 857-58,
is controlling and mandates that his good time credits cannot
explained by the Commissioner, however, the legislature sets
the rates for earning diminution of sentence, and DPSC
determines the procedures for earning and forfeiting good
time, pursuant to statutory authority provided by La. R.S.
15:821. Montecino's good time is calculated under Act
1099, which was effective on January 1, 1997, and amended La.
R.S. 15:571.3(B), by providing that an offender convicted for
a crime of violence for the first time could earn diminution
of sentence at a rate of 3 days for every 17 days in actual
custody. We note that the date of the commission of the
offense controls the computation of the diminution of
sentence. See State ex rel. Bickman v. Dees, 367
So.2d 283, 287 (La. 1978).
Montecino is serving a 20-year sentence for manslaughter, a
crime of violence as defined by La. R.S. 14:2(B), that was
committed on August 18, 2010, and his sentencing date was on
August 6, 2012, he is not entitled to earn diminution of
sentence at an increased rate (as provided in the older
version of the statute). Nothing in the record indicates an
error in the computation of Motecino's good time credits
by DPSC. "[A] strict construction of the statute
mandates the conclusion that unless good time has
been earned by an inmate, it cannot be forfeited.
Therefore, forfeiture of prospective or future good time is
not authorized by the statute, and the imposition of such a
penalty is excessive." [Emphasis in original.]
Cao, 915 So.2d at 857-58. However, the
interpretation expressed in Cao and relied on by
Montecino, does not apply to his forfeiture of good time
instituted a policy that was effective August 1, 2012, where
an offender is credited with and deemed to have earned all
good time to which the offender is entitled at the beginning
of his sentence; thus, Montecino's good time is not
prospective or future as he asserts. Due to DPSC's
policy, all of his 1, 096 days earned at the rate of 3 days
for every 17 days served for his 20-year sentence for
manslaughter, are considered earned at the start of
his sentence and can be forfeited. According to the record
and the Commissioner's report, Montecino has lost or
forfeited 1, 245 days of good time for disciplinary
infractions that were not appealed. Consequently,
Montecino's forfeitures clearly outnumbered his credits
at the time of his appeal.
policy in question was operative within the statutory
mandates and authority given to DPSC by La. R.S.
15:821. Moreover, La. R.S. 15:571.4 provides for
the forfeiture of diminution of sentence, as follows:
A. Determination shall be made by the secretary as to whether
good time or credits toward the reduction of the projected
good time parole supervision date has been earned by inmates
in [DPSC's] custody. Good time, or credits toward the
reduction of the projected good time parole supervision date,
which has been earned by inmates in the custody of [DPSC] ...