Zed Smith v. Louisiana Department of Public Safety and Corrections

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0805

ZED SMITH

VERSUS

JAMES LEBLANC AND LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS

JUDGMENT RENDERED: ` JUL 0 8 2020

Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge • State of Louisiana
Docket Number C675369 • Section 22

The Honorable Timothy Kelley, Judge Presiding

Zed Smith, D. O. C. # 315930 APPELLANT, IN PROPER PERSON
David Wade Correctional Center PLAINTIFF— Zed Smith
Homer, Louisiana

Susan Wall Griffin ATTORNEY FOR APPELLEE
Baton Rouge, Louisiana DEFENDANT— Louisiana
Department of Public Safety and
Corrections

BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

Zed Smith, an inmate in the custody of the Louisiana Department of Public

Safety and Corrections ( the " Department") and confined to the David Wade

Correctional Center, appeals a judgment of the district court dismissing his petition

for judicial review of Administrative Remedy Procedure No. DWCC-2018- 0469

ARP") and affirming the Department' s final decision in this matter. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Smith was convicted and sentenced for a crime in federal court under docket

number 2004- 265 in the Eastern District of Louisiana.' While he was in federal

custody, on September 3, 2013, he appeared before and pled guilty to separate state

criminal charges in the 20 Judicial District Court for the Parish of Jefferson and

was sentenced for those crimes by Judge Raymond S. Steib, Jr.' For the first

count I), he was sentenced to 15 years ( to be served without benefit of probation,

parole, or suspension of sentence for 5 years) and for the other charge ( count II), he

was sentenced to 15 years. As to count II, he was subsequently adjudicated as a

habitual offender, the original sentence was vacated and he was sentenced to 15

years without benefit of probation or suspension of sentence. The minutes,

sentencing transcript, and commitment order indicates that the sentences in the

state proceeding were imposed " concurrently" with each other and " concurrent and

coterminously" to his federal sentence.

In June 2015, Smith was released from federal custody. In June 2017, he

was remanded to the custody of the Department for the completion of his state

sentences. In Smith' s ARP, he claimed that he was erroneously remanded to the

1 The record does not contain any specific details concerning Smith' s federal conviction or
sentence.

2
According to Smith' s ARP, the charges against him were possession with intent to distribute a
controlled dangerous substance ( heroin) and obstruction of justice.

2

custody of the Department after his release from federal custody because in the

state proceedings, his plea agreement was for concurrent and coterminous

sentences to his federal sentence. Thus, Smith sought to be immediately released

from the custody of the Department. The Department denied the relief,

maintaining that while his federal and state sentences were running concurrent with

each other, they did not end at the same time and Louisiana did not recognize

coterminous sentences. Smith then instituted this proceeding, seeking judicial

review of the Department' s decision.

On March 18, 2019, the commissioner assigned to this matter issued a report

recommending to the district court that the Department' s decision be affirmed and

that Smith' s petition be dismissed. The commissioner noted that although the

sentencing court in the state proceedings used the terms " concurrent" and

coterminous" interchangeably and did not distinguish the terms, there was no

specific statement by the sentencing court that the Louisiana sentences were to run

and end at the same time as Smith' s federal sentence. The commissioner further

noted that in Louisiana, La. C. Cr.P. art. 883 authorizes a court to sentence an

offender either consecutively or concurrently, but does not provide for the

imposition of coterminous sentences. Lastly, the commissioner noted that there

was nothing in the sentencing transcript to indicate that the use of the term

concurrent and coterminous meant anything other than the intention that Smith

would serve his Louisiana sentences concurrent to his federal sentence and, that

once he finished his service requirements on the federal sentence, he would be

transferred to the custody of the Department to begin serving the remainder of his

Louisiana sentences minus credit for time served in federal custody. Accordingly,

the commissioner concluded that Smith failed to establish that the Department' s

decision was arbitrary, capricious, manifestly erroneous, or in violation of his

statutory or constitutional rights because the Department' s decision was based on

3

the premise that Louisiana does not allow for the imposition of coterminous

sentences. Thus, the commissioner recommended that the Department' s decision

be affirmed and Smith' s suit should be dismissed with prejudice at his cost.

After considering the entire record of the proceedings, on April 9, 2019, the

district court adopted the commissioner' s recommendation and signed a judgment

dismissing Smith' s petition with prejudice and affirming the Department' s

decision. From this judgment, Smith has appealed.

LAW AND DISCUSSION

There is a difference between " concurrent" and " coterminous" sentences.

Strickland v. Louisiana Department of Public Safety and Corrections, 2017-

0829 ( La. App. 1St Cir. 12/ 21/ 17), 240 So. 3d 970, 973. Concurrent sentences are

when two or more sentences of jail time are to be served simultaneously. Id.,

quoting Black' s Law Dictionary 1569 ( 10th ed. 2014). A concurrent sentence

does not mean that the sentences will end at the same time. Strickland, 240 So. 3d

at 972, citing Brown v. Parker, 771 F. 3d 1270, 1272 ( 10th Cir. 2014). When the

sentences are to end at the same time, the sentence is called " coterminous." Id.

As the commissioner correctly noted, Louisiana law authorizes concurrent

and consecutive sentences, but does not provide for coterminous sentences. See

Strickland, 240 So. 3d at 974. More specifically, La. C. Cr. P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

A review of the record reveals that the minutes of the court, the sentencing

transcript, and the commitment order issued by the sentencing court provide that

Smith' s sentences in the state proceeding were imposed " concurrent and

E

coterminously" to his federal sentence. Louisiana does not recognize

conterminous sentences.
Louisiana law statutorily only authorizes concurrent and

consecutive sentences. See La. C. Cr.P. art. 883; Strickland, 240 So. 3d at 974.

Therefore, it is impossible to give effect to the coterminous provision in Smith' s

sentence.

Based on our review of the record, we find no error in the district court' s

dismissal of Smith' s petition for judicial review. Regardless of whether Smith' s

claims concerning the legality of his sentence have merit, the 19' Judicial District

Court lacked jurisdiction to grant Smith the relief that he sought. A district court

lacks authority to correct an illegal sentence on a petition for judicial review.

Boddye v. Louisiana Department of Corrections, 2014- 1836 ( La. App. 1 Cir.

6/ 26/ 15), 175 So. 3d 437, 442, writ denied, 2015- 1688 ( La. 10/ 30/ 15), 180 So. 3d

303. While an illegal sentence may be corrected at any time, only the sentencing

court itself or the appellate court having jurisdiction over the sentencing court have

authority to do so. La. C. Cr.P. art. 882( A); Boddye, 175 So. 3d at 442. Since

Smith was sentenced in Jefferson Parish, neither the 19th Judicial District Court nor

this court have jurisdiction over petitioner' s illegal sentence claims. See

Campbell v. Louisiana Department of Public Safety and Corrections, 2017-

1002 ( La. App. 1St Cir. 2/ 16/ 18), 2018 WL 914304, at * 1( unpublished), writ

denied, 2018- 0359 ( La. 1/ 28/ 19), 262 So. 3d 900.

The proper procedure for Smith to seek the relief he requests is through a

motion to correct an illegal sentence filed in the court that imposed his sentence.

Thus, any challenges to the legality of Smith' s sentence should be filed in the 2411

Judicial District Court for the Parish of Jefferson. Campbell, 2018 WL 914304, at

2. Accordingly, we do not find merit in Smith' s appeal and affirm the rulings of

the district court and the Department.

5

CONCLUSION

For the above and foregoing reasons, we affirm the April 9, 2019 judgment

that dismissed Zed Smith' s petition for judicial review, with prejudice. All costs of

this appeal in the amount of $1, 150. 50 are assessed to the plaintiff, Zed Smith.

AFFIRMED.

0

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0805

ZED SMITH

VERSUS

JAMES LEBLANC AND LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS

1
McClendon, J., concurring.

I disagree with the conclusion that the 19th Judicial District Court and this court

lack jurisdiction. However, based on the fact that Louisiana does not provide for

coterminous sentences, I concur in the affirmance of the trial court's judgment.

Additionally, I note that Mr. Smith has not raised with this court the potential nullity of

his plea agreement.

ZED SMITH NUMBER: 2019 CA 0805

FIRST CIRCUIT
VERSUS
COURT OF APPEAL
JAMES LEBLANC AND LOUISIANA
DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS STATE OF LOUISIANA

J WELCH, J., dissenting.

I respectfully disagree with the majority opinion in this matter because I

believe there is a question as to the validity of Zed Smith' s plea agreement and that

the Louisiana Department of Public Safety and Corrections should be ordered to

comply with the sentencing order issued by Judge Raymond S. Steib, Jr. in the 24"

Judicial District Court.

As the majority correctly notes, there is a difference between " concurrent"

and " coterminous" sentences; however, Louisiana law only authorizes concurrent

and consecutive sentences and does not provide for coterminous sentences..

Strickland v. Louisiana Department of Public Safety and Corrections, 2017-

0829 ( La. App. 1St Cir. 12/ 21/ 17), 240 So. 3d 970, 973- 974. Nonetheless, the

sentencing court in the state proceedings, Judge Steib in the 20 Judicial District

Court, unquestionably and specifically ordered that Smith' s sentences in the state

proceedings were to run " concurrent and coterminously" to his federal sentences

and further, that these sentences were imposed pursuant to plea agreements. Thus,

there is a question as to the validity of Smith' s plea agreement.

In determining the validity of plea agreements, courts generally refer to rules

of contract law. Boddye v. LA. Dept. of Corrections, 2014- 136 ( La. App. 1St Cir.

6/ 26/ 15), 175 So. 3d 437, 441, writ denied, 2015- 1688 ( La. 10/ 30/ 15), 180 So. 3d

303. A contract is an agreement by two or more parties whereby obligations are

created, modified, or extinguished. La. C. C. art. 1906; Boddye, 175 So. 3d at 441.

An obligation cannot exist without a lawful cause. La. C. C. art. 1966; Boddye,

175 So. 3d at 441. The cause of an obligation is unlawful when the enforcement of

the obligation would produce a result prohibited by law or against public policy.

La. C. C. art. 1968; Boddye, 175 So. 3d at 441. Moreover, a contract is absolutely

null when it violates a rule of public order, as when the object of a contract is illicit

or immoral; a contract that is absolutely null may not be confirmed. Boddye, 175

So. 3d at 441, citing State v. Byrnside, 34948 ( La. App. 2" d Cir. 8/ 22/ 01), 795

So. 2d 435, 437- 438.

Herein, to the extent that Smith' s sentences in the state court proceedings

were imposed " concurrent and coterminously" to his federal sentence and violates

Louisiana law, the plea agreements on which Smith' s sentences are premised

appear to be absolute nullities.' However, notwithstanding whether the underlying

plea agreement is an absolute nullity that the sentencing court in the state

proceeding should not have accepted, it must be recognized that what is to be

enforced by the Department is not the plea agreement itself, but the actual

sentencing order imposed by the sentencing court. See Boddye, 175 So. 3d at 441.

Herein, given that the minutes of the court, the sentencing transcript, and the

commitment order issued by the sentencing court provide that Smith' s sentences in

the state proceeding were imposed " concurrent and coterminously" to his federal

sentence, I find that the Department and the district court erred in failing to enforce

the governing sentencing orders, in determining that Smith was not entitled to the

relief that he requested in his ARP, or in otherwise concluding that Smith was

properly remanded to the custody of the Department after his release from federal

custody.

1 However, I also recognize that "[ i]t is well settled in Louisiana jurisprudence that a guilty plea
is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by
what he justifiably believes was a plea bargain, and that bargain is not kept. In such a case, a
defendant has been denied due process of law because the plea was not given freely and
knowingly." Boddye, 175 So. 3d at 441 n.5, quoting Blair v. Stalder, 99- 1860 ( La. App. 1St Cir.
1/ 31/ 01), 798 So. 2d 123, 138 n.7.

It is well settled that the determination of the sentence a defendant is to

serve, and what, if any conditions are to be imposed on that sentence is made by

the sentencing trial judge, not the defendant' s custodian. Boddye, 175 So. 3d at

441. The custodian' s obligation is to see that the sentence imposed is the sentence

served. Id. As such, the Department is charged with complying with any

conditions placed on a sentence by the sentencing court. Id. Herein, the

Department declined to follow the sentence imposed by the sentencing court on the

basis that Louisiana did not recognize coterminous sentences. However, despite

the illegality of Smith' s sentence, I believe that the Department lacked the

authority to unilaterally correct the error committed by the sentencing court;

instead, such error may only be corrected by the sentencing court itself or on direct

appellate review. See Boddye, 175 So. 3d at 442. Likewise, the district court

herein lacked the authority to correct the illegal sentences on judicial review. Id.

Accordingly, I would find merit in Smith' s appeal and reverse the rulings of

the district court and the Department. In accord, Boddye, 175 So. 3d at 442.2

Thus, I respectfully dissent.

2 I recognize that in Strickland, 240 So. 3d at 974, which involved the use of the terms
concurrent and coterminous" in reference to the imposition of multiple sentences, this Court
found no error in the decision of the Department or the district court not to recognize the term
coterminous with regard to the inmate' s sentence. Therein, although the term coterminous was

used, the sentencing transcript was clear that that in exchange for the inmate' s plea of no contest,
he would be sentenced to a total of forty years and was advised that if he were eligible for good
time, the shortest sentence he would serve in prison would be thirty-four years. Additionally, the
no contest plea was not induced by a plea bargain which promised that the inmate would be
released upon completion of his shortest sentence. Strickland, 240 So. 3d at 974. In this case,

the sentencing transcript is clear that Smith' s sentences were concurrent and coterminous with
his federal sentence and that such sentences were imposed as part of his plea agreement.
Therefore, I find Strickland is distinguishable and the result reached in this case should be
controlled by Boddye, 175 So. 3d at 442.