
    Leon J. PERALLA v. Cynthia HEBERT, et al.
    No. 97 CA 2175.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 6, 1998.
    
      Leon Peralla, Angola, pro se.
    Debra A. Rutledge, Department of Public Safety and Corrections, Baton Rouge, Counsel for Defendants/Appellees Cynthia Hebert, et al.
    Before GONZALES, KUHN and WEIMER, JJ.
   bKUHN, Judge.

This matter is before us again after this court, in an unpublished opinion, remanded for the receipt of additional evidence, a petition for judicial review filed by claimant-inmate, Leon Peralla. After a hearing on the order of remand, the trial court affirmed the determination of the Department of Public Safety and Corrections (“DPSC”), denying claimant eligibility for diminution of sentence for good behavior. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Claimant is a prisoner serving a sentence in the custody of DPSC. On February 9, 1995, claimant instituted this petition pursuant to the Corrections Administrative Remedy Procedure (“ARP”), set forth in La. R.S. 15:1177, seeking judicial review of a denial by DPSC of his request for diminution of sentence for good behavior (also colloquially referred to as “good time”). On the recommendation of the Commissioner for the Nineteenth Judicial District Court, the trial court affirmed DPSC’s denial. Thereafter, claimant appealed to this court urging that the trial court erred in failing to consider the additional evidence of a transcript of his 1985 conviction evincing that the charge to which he plead guilty was simple burglary of an inhabited dwelling pursuant to La. R.S. 14:62.2, and not a simple burglary pursuant to La. R.S. 14:62, as DPSC records indicated. In an unpublished opinion, Perella v. Hebert, 96-0264 (La.App. 1st Cir. 11/8/96), 686 So.2d 172, this court stated:

[w]e believe that the evidence presented by [claimant] during the administrative proceeding puts into question the accuracy of the records received by [DPSC] concerning his 1985 conviction. Furthermore, the record indicates no disposition was made of [claimant’s] traversal of the Commissioner’s recommendation, nor did the trial court consider the transcript of the 1985 conviction.

This court reversed the trial court’s affir-mance of DPSC’s denial of claimant’s request for good time, and the matter was remanded for consideration of the additional evidence.

_J¡After a hearing on remand, in his written recommendation to the court, the commissioner noted:

The original issues of the first hearing appear now to have been slightly altered. Both [DPSC and claimant] agree that [claimant] is currently serving a sentence for a 1992 conviction for the charge of simple burglary of an inhabited dwelling. He was charged under the habitual offender law [La. R.S. 15:529.1] based on prior convictions from 1988 of possession of stolen property and a March, 1985 of simple burglary of an inhabited building.

After a consideration of the 1985 conviction in light of the additional evidence correctly showing it to be one for simple burglary of an inhabited dwelling, the commissioner once again recommended DPSC’s denial of claimant’s request for diminution of sentence be affirmed. By judgment, dated April 22, 1997, the trial court dismissed claimant’s petition for judicial review. From that judgment, claimant appeals, urging the trial court’s conclusion is erroneous.

II. ISSUE

The sole issue for our consideration is whether La. R.S. 15:571.3(0 disallows the diminution of the sentence of an inmate who has been convicted of one of the crimes enumerated in Subpart (1) of §571.3(C) when that enumerated offence did not form a part of the predicate for conviction under the Habitual Offender Law.

JiDISCUSSION

Louisiana Revised Statutes Title 15, section 571.3(C) provides in pertinent part:

Diminution of sentence shall not be allowed an inmate in the custody of [DPSC] if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following [statutorily enumerated] crimes..., and
(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and
(3) The inmate’s last conviction for the purposes of the Habitual Offender Law, was for a crime ... committed on or after September 10,1977.

The parties do not dispute that claimant was convicted in 1985 for a drug charge in violation of La. R.S. 40:969, which is an enumerated offense contained in subparagraph (r) of §571.3(0(1); that he was sentenced as habitual offender under the Habitual Offender Law in October 1993; and that claimant’s last conviction for purposes of the Habitual Offender Law was for a crime committed after September 1977. Likewise, it is undisputed that claimant’s 1985 drug conviction was not used as a basis for his sentence under the Habitual Offender Law.

Claimant urges that implicit in §571.3(C) is a requirement that the enumerated offense in subpart (1), for which an inmate has been convicted, be one of the underlying bases for the enhanced sentence under the Habitual . Offender Law. DPSC’s position is that absent an express requirement within the provisions of §571.3(C), it is required to deny a request for diminution of sentence when subparts (1), (2) and (3) have been met. Because claimant has met all the express requirements mandating disallowance of diminution of sentence, DPSC denied claimant’s request.

[sit is well-settled that criminal statutes are to be strictly construed. State v. Smith, 97-0782, p. 4 (La.App. 1st Cir. 2/20/98); 708 So.2d 1166, 1168. Nevertheless, when a statute is clear and free from ambiguity, it must be given effect as written. La. C.C. art. 9; La. R.S. 1:4. Using these rules of interpretation to evaluate the language of §571.3(C), we believe the statute requires only that an inmate have been convicted one or more times of one of the enumerated crimes set forth in subpart (1); that the inmate have been sentenced as a habitual offender under La. R.S. 15:529.1; and that the last conviction for purposes of the Habitual Offender Law was for a crime committed after September 1977.

If the legislature had intended, as claimant suggests, that the enumerated crime for which an inmate has been convicted form a basis for the inmate’s sentencing as an habitual offender, it could have easily included a phrase relating the sentencing of the inmate as a habitual offender in subpart (2) to the conviction of the enumerated offense in sub-part (1). We decline to read such an implicit requirement in §571.3 (C). Finding no ambiguity in the plain language of this statute as written, we are, as was the trial court, duty-bound to apply §571.3(C) as written. Accordingly, we find no error in the trial court’s dismissal of claimant’s petition for judicial review.

IV. DECREE

The trial court’s April 22, 1997 judgment, dismissing the petition for judicial review of Leon Peralla, is affirmed. All costs of this appeal are assessed against claimant.

AFFIRMED.

WEIMER, J., concurs.

hWEIMER, Judge,

concurring.

I respectfully concur in the result reached by the majority and assign additional reasons.

The defendant is seeking to have the Department of Public Safety and Corrections (DPSC) ordered to recompute his sentence, granting him additional credits against his sentence in the form of diminution of sentence or “good time.”

The record indicates that the defendant is currently serving a sentence for a 1992 conviction for the charge of simple burglary of an inhabited dwelling. He was charged under the Habitual Offender Law (La. R.S. 15:529.1) based on prior convictions from 1988 for possession of stolen property and 1985 for simple burglary of an inhabited dwelling.

The record reflects that the defendant was not charged as a habitual offender in 1992 or 1993 with any of the enumerated crimes in La. R.S. 15:571.3(0(1). However, the defendant does have a 1985 conviction for violation of La. R.S. 40:969, possession of diazepam, which is one of the offenses enumerated in La. R.S. 15:571.3(0(1).

The defendant reads La. R.S. 15:571(0 to require that not only must he have been convicted one or more times of a crime enumerated in the statute, but one of the enumerated crimes for which he has been convicted must be used in the multiple offender bill in order for him to be denied diminution of sentence.

_|The DPSC contends that whether an enumerated crime was used to form part of the basis of the habitual offender charge does not alter the defendant’s non-entitlement to diminution of sentence if he has been, in fact, convicted of an enumerated crime at sometime in the past.

I agree with the position of the DPSC.

The Habitual Offender Law requires only that the individual have committed two or more felonies within the state of Louisiana. It is designed to permit the sentencing court to increase the sentence imposed upon any multiple or “habitual” offender, thereby granting the sentencing court a wider range of punishments. Revised Statute 15:571.3(0 is designed to disallow diminution of sentence which an individual inmate could gain against the sentence imposed.

It is obvious that La.R.S. 15:571.3(C) does not require that an individual’s last conviction be for one of the crimes enumerated in subsection 1 of this statute. Subsection 1 only requires that an individual have one or more convictions for an enumerated crime, and subsection 2 does not specify that the last conviction be for one of the enumerated crimes. The statute does not require that all of the convictions used in the habitual offender charge be enumerated crimes. Furthermore, as the statute does not prescribe a time frame for when the enumerated offenses must have occurred, this issue is not relevant. The statute only requires that the inmate be convicted one or more times of an enumerated crime, that the inmate be sentenced as a habitual offender, and that the last conviction for purposes of the Habitual Offender Law be for a crime committed after September 10,1977.

Diminution of sentence is a benefit designed to reward those inmates who meet certain specification — it is not designed for those who repeatedly engage in criminal conduct. 
      
      . The Habitual Offender Law is set forth at La. R.S. 15:529.1, providing in part:
      A. (1) Any person who, after having been convicted within this state of a felony, ... thereafter commits any subsequent felony within this state, upon conviction of said felony shall be punished as follows... .
      Section 529.1 thereafter provides for enhanced sentences under specified conditions. We parenthetically note that a habitual offender bill of information charging that defendant has previously been convicted of one of more felonies does not charge a substantive crime, but, rather, such a proceeding is merely part of sentencing and allows enhanced penalties for repeat offenders. State v. Banks, 612 So.2d 822, 825 (La.App. 1st 1992), writ denied, 614 So.2d 1254 (La.1993).
     
      
      . Although appellant’s suit was brought in forma pauperis, the costs of an unsuccessful appeal may be assessed against him. Gibson v. Barnes, 597 So.2d 176, 178 (La.App. 1st Cir.1992).
     
      
      . I wish to express my gratitude to Commissioner Allen J. Bergeron, Jr. for addressing the issues in such an articulate manner. I have borrowed extensively from his “Commissioner's Recommendation.”
     