                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                          NEWS RELEASE #051


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of October, 2014, are as follows:



BY KNOLL, J.:


2013-C -2789      PAUL  MASSEY   v.  LOUISIANA   DEPARTMENT   OF   PUBLIC    SAFETY   &
                  CORRECTIONS (Parish of E. Baton Rouge)

                  Accordingly, we reverse the judgment of the Court of Appeal and
                  remand this case to the Department of Public Safety and
                  Corrections with instructions to recompute Massey’s sentence in
                  accordance with Act 138, the law that was in effect at the time
                  he committed his crimes.
                  REVERSED AND REMANDED TO THE DEPARTMENT OF PUBLIC SAFETY AND
                  CORRECTIONS.

                  VICTORY, J., concurs.
                  WEIMER, J., concurs and assigns reasons.
                  GUIDRY, J., dissents and assigns reasons.
10/15/14




                            SUPREME COURT OF LOUISIANA

                                            NO. 2013-C-2789

                                            PAUL MASSEY

                                                 VERSUS

    LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIRST CIRCUIT, PARISH OF EAST BATON ROUGE




KNOLL, J.

        This case concerns whether defendant, Paul Massey, is eligible to receive

“good time” credits when the law changed after the offenses were committed,

eliminating Massey’s eligibility to earn early release.

        In 2006, the Legislature amended the statute that gave inmates the capacity

to earn early release from their prison sentence—“good time” credits—in exchange

for good behavior and the performance of work or self-improvement activities.

This amendment significantly narrowed the class of inmates qualified to receive

good time credits, excluding from eligibility, as pertinent here, those convicted of

felony carnal knowledge of a juvenile or molestation of a juvenile. Massey

committed both felony carnal knowledge of a juvenile and attempted molestation

of a juvenile1 on August 9, 1994, in Sabine Parish. His victims, however, did not

report his crimes to the authorities until 2004, and a jury did not convict Massey of

these offenses until February 7, 2007. We are asked to decide which version of the

good time statute applies to Massey—the law in effect at the time he committed his

1
 Massey argues attempted molestation is not an enumerated offense under La. Rev. Stat. § 15:571.3, even as it was
enacted in 2006. Because we find the 2006 act does not apply to Massey, we do not reach this issue.
crimes, under which Massey unequivocally is eligible for, and indeed has earned,

good time credits, or the law in effect at the time of his conviction, which denies

him early release regardless of his demonstrated good behavior. Because the

rescission of good time eligibility creates a significant risk of prolonging his

incarceration and increases the severity of Massey’s sentence by altering the terms

and conditions under which he must serve his penalty, we find application of the

amended law would violate the ex post facto clauses of the United States and

Louisiana Constitutions. Applying the law in effect at the time the offenses were

committed, we find Massey is eligible to receive good time credits and is entitled

to have his time recomputed under the statute before it was amended.

              BACKGROUND AND PROCEDURAL HISTORY

      At the time Massey committed his crimes, La. Rev. Stat. § 15:571.3, as then

enacted, provided for good time eligibility to “[e]very inmate in the custody of the

department who has been convicted of a felony and sentenced to imprisonment for

a stated number of years or months.” 1991 La. Acts No. 138; La. Rev. Stat. §

15:571.3(B)(1) (1991). For ease of reference, we will refer to this earlier enacted

version of § 15:571.3 as “Act 138.” In 2006, the Legislature amended § 15:571.3

with its enactment of La. Acts No. 572. We will refer to this later version of §

15:571.3 as “Act 572.” This later act narrowed the availability of good time credits

by excluding from eligibility, among others, those convicted of felony carnal

knowledge of a juvenile, in violation of La. Rev. Stat. § 14:80, or of molestation of

a juvenile, in violation of La. Rev. Stat. § 14:81.2. La. Rev. Stat. §

15:571.3(B)(2)(b) (2006). Act 572 specified that its provisions “shall apply only to

persons convicted of offenses on or after August 15, 2006.” Although Massey

committed the offenses on August 9, 1994, during the effective period of Act 138,

he was convicted of his crimes on February 7, 2007—after Act 572 by its own

terms had become effective. Ultimately, Massey was sentenced to six years at hard

                                         2
labor for each of the two counts, with both terms to be served consecutively.2

        The record reflects Massey sought to take advantage of the good time

provisions available to him under § 15:571.3 as it was enacted at the time of his

offenses.3 Every iteration of Massey’s master prison record that is before us

indicates a full term release date of October 3, 2018. Likewise, each version of

Massey’s master prison record prior to July 20, 2011, shows Massey’s good

behavior earned him a release date which was consistently drawing nearer and

nearer. Indeed, the master prison record dated June 14, 2007, reflects a diminution

of sentence—or early release—date of April 4, 2012. Massey’s master prison

record from January 29, 2011, reveals an adjusted early release date of September

6, 2011, reflecting 221 days of good time credit Massey earned. This early release

date reflects, among other things, 180 days of educational credits Massey earned

for taking a welding class which ran from January 11, 2008 to May 10, 2010, and

18 days for educational credits he garnered for participating in “Personal

Development Module 1” which he completed on May 21, 2010.

        In July 2011, two months before he was scheduled for early release, Massey

received an amended master prison record indicating that all of his good time

credit had been revoked and that he would not be eligible for release until October

3, 2018. Massey filed a formal request for administrative relief as required by La.

Rev. Stat. § 15:1172. Having exhausted the administrative process with the

Department of Public Safety and Corrections affirming its amended computation

of his sentence at each stage, Massey filed a petition for judicial review in the

Nineteenth Judicial District Court according to La. Rev. Stat. § 15:1177. Citing

State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d 735, the
2
  The record reflects Massey was originally sentenced on March 2, 2007. On appeal, the First Circuit remanded
Massey for resentencing which then took place on March 14, 2008.
3
  As Massey’s master prison records and the July 28, 2011 letter he received from the Records Office indicate,
Massey’s sentence was computed under Act 572 from the first day of his sentence because he was “convicted on
02/07/07 and offenders were not being sentenced under Act 138 after 8/15/06 (effective date of Act 572).”
According to the Records Office, Massey accrued good time credits due to an oversight, as he “should actually be
under Act 572F (designated name of the Act by the Department of Corrections) which differs from Act 572 (which
allows good time) in that Act 572F does not allow good time.”

                                                       3
commissioner assigned to review Massey’s request also affirmed the Department’s

decision to apply Act 572, the law in effect at the time of his conviction in 2007.

The District Court, adopting the commissioner’s reasons, likewise affirmed the

Department’s decision. Massey then appealed this judgment to the First Circuit

Court of Appeal under La. Rev. Stat. § 15:1177(A)(10). Also citing this Court’s

decision in Olivieri, the Court of Appeal affirmed the Department’s computation of

Massey’s time, finding application of Act 572 did not violate the ex post facto

clause because this post-offense change in the law did not “increase the penalty by

which his crimes were punishable.” Massey v. Louisiana Dept. of Public Safety &

Corrections, 13-0241 (La. App. 1 Cir. 11/1/13), 2013 WL 5915742. We granted

Massey’s writ application to address both the lower court’s interpretation of

Olivieri and the ex post facto implications of the Department’s decision to apply a

statute which denies an inmate eligibility to earn good time credit when the inmate

was eligible to earn good time credit under the law in effect at the time he

committed his crimes. Massey v. Louisiana Dept. of Public Safety & Corrections,

13-2789 (La. 6/30/14), __ So.3d __.

                                  DISCUSSION

      We review the judgment of the Court of Appeal as provided by La. Rev.

Stat. § 15:1177. Section 15:1177(A)(9) lays out the exclusive grounds upon which

this Court could reverse or modify the Department’s decision. As relevant to

Massey’s petition for review, to rule in his favor, we must find his “substantial

rights…have been prejudiced because the administrative findings, inferences,

conclusions, or decisions are…[i]n violation of constitutional or statutory

provisions.” La. Rev. Stat. § 15:1177(A)(9)(a).

      This court has consistently held that the law in effect at the time of the

commission of the offense is determinative of the penalty which the convicted

accused must suffer. State v. Hyde, 07-1314, p. 1 (La. 11/21/07), 968 So.2d 726;

                                         4
State v. Sugasti, 01-3407, p. 4 (La. 6/21/02), 820 So.2d 518, 520; State v. Wright,

384 So.2d 399, 401 (La. 1980); State v. Gros, 18 So.2d 507 (La. 1944). This strong

jurisprudential presumption has significant constitutional underpinnings. Both

Article I, section 9 of the United States Constitution and Article I, section 23 of the

Louisiana Constitution prohibit the enactment of any ex post facto law. California

Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601 (1995);

Olivieri, 00-0172 at p. 14, 779 So.2d at 743 (bringing Louisiana ex post facto law

in line with federal jurisprudence). In accordance with the Framer’s original

understanding of the Ex Post Facto Clause, the United States Supreme Court has

held that “the Clause is aimed at laws that ‘retroactively alter the definition of

crimes or increase the punishment for criminal acts.’” Morales, 514 U.S. at 504,

115 S.Ct. at 1601; (citing Calder v. Bull, 3 U.S. (Dall.) 386, 391-92 (1798)

(opinion of Chase, J.); Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69

(1925)). Massey argues that application of Act 572 denies him good time credit

eligibility which was available to him under Act 138 violating this critical

constitutional protection.

      In order to weigh the merits of Massey’s petition, we first must determine

whether the Department seeks to apply a law “to events occurring before its

enactment.” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896 (1997). Here,

Massey committed his crimes on August 9, 1994. The Department applied a law to

his sentence that the Legislature did not pass until over a decade after these

offenses occurred. Thus, the retroactive nature of the Department’s application of

Act 572 is unquestioned.

      Under both federal and state law, our next task is to determine whether or

not this retroactive application of the law violates the ex post facto prohibition by

asking whether the change in the law alters the definition of criminal conduct or

increases the punishment for the crime. Id.; Morales, 514 U.S. at 504, 115 S.Ct. at

                                          5
1601; Olivieri, 00-0172 at pp. 15-16, 779 So.2d at 744. Our review is “limited to

the issues presented in the petition for review and the administrative remedy

request filed at the agency level.” La. Rev. Stat. § 15:1177(A)(5). Because

Massey’s petition alleges exclusively that application of Act 572 increases the

penalty to which he is subject, we address only this narrow issue—that is, whether

application of Act 572 increases Massey’s punishment when it denies him

eligibility for good time credits previously available to him under the law in effect

at the time he committed his offenses.

      In determining whether retroactive application of a law increases the

punishment to which an inmate would be subject, the relevant inquiry is whether

the change in the law “creates a significant risk of prolonging [the inmate’s]

incarceration.” Garner v. Jones, 529 U.S. 244, 251, 120 S.Ct. 1362, 1368 (2000);

Peugh v. United States, __ U.S. __, 133 S.Ct. 2072, 2082 (2013) (citing Garner for

the proposition that “[t]he touchstone of this Court’s inquiry is whether a given

change in law presents a ‘sufficient risk of increasing the measure of punishment

attached to the covered crimes’”). As we have stated it another way, retroactive

application of a law increases a defendant’s punishment in violation of the Ex Post

Facto Clause when it “increase[s] the severity of the sentence by altering the terms

and conditions under which defendant must serve the penalty.” Hyde, 07-1314 at p.

2, 968 So.2d at 726 (finding that application of a sentencing law enacted post-

offense runs afoul of the ex post facto prohibition).

      Regardless of the test we employ, the Department’s retroactive application

of Act 572 to Massey’s sentence cannot withstand ex post facto scrutiny. Indeed,

Massey has unequivocally endured a longer sentence because the Department

chose to apply a law that was not enacted at the time he committed his crimes. As

the record clearly reflects, Massey could have been released as early as 2011 if the



                                          6
Department had not revoked the credits he had earned.4 Therefore, in Massey’s

case, application of the later enacted Act 572 has not created merely a hypothetical

“significant risk” of prolonging his incarceration. The Department’s application of

Act 572 has actually prolonged his incarceration by a number of years.

Additionally, by denying Massey good time credit that would have been available

to him at the time he committed his offense, the Department has certainly

increased Massey’s penalty by altering the “the terms and conditions under which

[he] must serve the penalty.” Hyde, 07-1314 at p. 2, 968 So.2d at 726. Thus, we

find retroactive application of Act 572 increases Massey’s punishment and,

accordingly, violates the prohibition against the application of ex post facto

enactments.

        Moreover, as Massey has highlighted in his arguments before every tribunal

that considered his petition for review, both this Court and the United States

Supreme Court have held retroactive application of a law denying an inmate

eligibility to earn credits for good conduct unquestionably increases the

punishment to which an inmate would be subject and, therefore, violates the

prohibition against ex post facto enactments. Weaver v. Graham, 450 U.S. 24, 35-

36, 101 S.Ct. 960, 968 (1981) (statute retroactively reducing the number of good

time credits an inmate was eligible to receive changed the “quantum of

punishment” and, therefore, violated the prohibition against ex post facto laws);

State v. Singleton, 96-2380 (2/7/97), 688 So.2d 486 (retroactive application of

statute eliminating eligibility for good time credit violates the Ex Post Facto

Clause); State ex rel. Bickman v. Dees, 367 So.2d 283, 289 (La. 1978) (retroactive

application of change in formula for computing good time credits and reducing the


4
  We are unable to determine from the record exactly when Massey should have been released. As we explain infra,
see note 3, the Department has computed Massey’s good time under some portion of Act 572 throughout his entire
incarceration. Prior to revoking entirely his eligibility to earn good time, the Department computed Massey’s good
time credits under a portion of Act 572 which allowed him to receive thirty-five days of good time credit for every
thirty days of good behavior. If the Department had properly computed his good time credits under Act 138, Massey
should have received thirty days of good time credits for every thirty days of good behavior in custody.

                                                        7
rate of accrual violated the Ex Post Facto Clause); State v. Curtis, 363 So.2d 1375,

1378-83 (La. 1978). The lower courts erred in failing to follow this jurisprudence.

      Although the United States Supreme Court, in Collins v. Youngblood, 497

U.S. 37, 110 S.Ct. 2715 (1990), tightened the focus of the ex post facto inquiry,

neither Collins nor its progeny has called into question the conclusion reached in

Weaver v. Graham that retroactive application of a law reducing the number of

good time credits an inmate is eligible to receive violates the Ex Post Facto Clause.

Weaver, 450 U.S. at 35-36; 101 S.Ct. at 968. While prior to Collins, the ex post

facto inquiry centered on whether retroactive application of a law “disadvantaged

the offender affected by it,” the Collins Court refined this analysis, focusing on two

important brands of “disadvantage.” As the post-Collins Supreme Court explained

in Lynce,

      To fall within the ex post facto prohibition, a law must be
      retrospective-that is, “it must apply to events occurring before its
      enactment”-and it “must disadvantage the offender affected by
      it,” [Weaver, 450 U.S.] at 29, 101 S.Ct., at 964, by altering the
      definition of criminal conduct or increasing the punishment for the
      crime, see Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715,
      2723, 111 L.Ed.2d 30 (1990).

519 U.S. at 441, 117 S.Ct. at 896.

      Although the Supreme Court decided Collins decades after Weaver, the

Court reexamined Weaver in California Department of Corrections v. Morales,

514 U.S. at 506 n. 3, 115 S.Ct. at 1602, five years after its decision in Collins.

Discussing its pre-Collins decisions, the Court noted that several decisions,

including Weaver, contained language indicating a law which operates to the

“disadvantage” of covered offenders by changing the measure of criminal

punishment fell within the ex post facto prohibition. According to the Morales

Court, this language was “unnecessary to the results in those cases and is

inconsistent with the framework developed in Collins [ ].” Although the Morales

Court was clear that the focus of the analysis had narrowed, it was also clear the

                                          8
problematic language in Weaver was “unnecessary” to the result in that case.

Indeed, nothing in Morales called into question the holding of Weaver “that the Ex

Post Facto Clause forbids the States to enhance the measure of punishment by

altering the substantive ‘formula’ used to calculate the applicable sentencing

range.” Morales, 514 U.S. at 505, 115 S.Ct. at 1601.

      The United States Supreme Court examined Weaver again in Lynce, another

post-Collins decision, addressing whether a law retroactively eliminating for

certain classes of offenders overcrowding credits—that is, credits which the Court

recognized were similar to the good time credits at issue in Weaver because both

credits were dependent on an inmate’s good conduct—violated the Ex Post Facto

Clause. 519 U.S. at 441-47, 117 S.Ct. at 896-98. Applying Weaver and Morales,

the Court determined the California law did, indeed, run afoul of the ex post facto

prohibition. Id. at 519 U.S. at 447, 117 S.Ct. at 898.

      The Court of Appeal erred in finding Olivieri supported its decision to deny

Massey relief. In State ex rel. Olivieri v. State, this Court made the Louisiana ex

post facto prohibition found in Article I, section 23 of the Louisiana Constitution

coextensive with the federal prohibition against the enactment of ex post facto laws

provided in Article I, section 9 of the United States Constitution. 00-0172 at pp.

15-16, 779 So.2d at 744. Therefore, if federal jurisprudence condemning the

retroactive application of a law denying an inmate eligibility for good time credits

remained unchanged post-Collins, then Louisiana jurisprudence similarly remained

unchanged as well post-Olivieri. Thus, our holdings in Singleton, Bickman, and

Curtis similarly support Massey’s position that the Department’s retroactive

application of Act 572 violates the Ex Post Facto Clause. Both based on the

precedents of this Court and of the United States Supreme Court, as well as on our

assessment that the retroactive application of Act 572 increases the measure of

punishment for Massey’s crimes, we find Massey’s substantial rights have been

                                          9
violated by the Department’s application of Act 572 in violation of the Ex Post

Facto Clause, and we reverse the Department’s computation of Massey’s time.

      Accordingly, we reverse the judgment of the Court of Appeal and remand

this case to the Department of Public Safety and Corrections with instructions to

recompute Massey’s sentence in accordance with Act 138, the law that was in

effect at the time he committed his crimes.




REVERSED AND REMANDED TO THE DEPARTMENT OF PUBLIC

SAFETY AND CORRECTIONS.




                                         10
10/15/14




                 SUPREME COURT OF LOUISIANA

                        NO. 2013-C-2789

                        PAUL MASSEY

                           VERSUS

   LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
         FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

VICTORY, J., concurs.
10/15/14


                         SUPREME COURT OF LOUISIANA


                                   NO. 2013-C-2789

                                   PAUL MASSEY

                                       VERSUS

                             LOUISIANA DEPARTMENT OF
                           PUBLIC SAFETY & CORRECTIONS


           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
                           PARISH OF EAST BATON ROUGE



WEIMER, J., concurring.

         I agree with the result and respectfully concur. I believe this case can be

resolved by applying the holdings of State v. Singleton, 96-2380 (La. 2/7/97), 688

So.2d 486, State ex rel. Bickman v. Dees, 367 So.2d 283, 289 (La. 1978), and

State v. Curtis, 363 So.2d 1375, 1379-83 (La. 1978), as recognized by the majority.

Because these cases are dispositive in applying the ex post facto law of Louisiana,1 an

analysis of relevant United States Supreme Court jurisprudence is unnecessary.

         Furthermore, State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d

735, is distinguishable from the instant matter since it did not involve retroactive

changes in criminal punishment; rather, it addressed whether the application of the

remedial provisions of Louisiana’s sex offender registration and notification laws to

crimes occurring before the enactment of these provisions violate ex post facto

principles. See Id. 00-0172 at 19-21, 779 So.2d at 747 48.




1
    See La. Const. art. I, § 23.
      It is worth noting that since 1981, release of an inmate due to credit for good

time has been “as if he were released on parole,” and the former inmate remains under

state supervision for “the remainder of the original full term of sentence.” See La. R.S.

15:571.5(B)(2). Thus, although released from incarceration, the former inmate will

remain under state supervision for the full term of his original sentence.

      For these reason, I respectfully concur.




                                           2
10/15/14



                      SUPREME COURT OF LOUISIANA

                                  No. 2013-C-2789

                                  PAUL MASSEY

                                      VERSUS

  LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS




GUIDRY, Justice, dissents and assigns reasons.

      I respectfully dissent from the majority opinion today because this case is

not in the proper posture for this court’s review. The attorney general was neither

served nor notified of the plaintiff’s challenge attacking the constitutionality of La.

Rev. Stat. 15:571.3, amended by Acts 2006, No. 572, as required by La. Code Civ.

Proc. art. 1880, so that the attorney general could elect whether or not to exercise

his statutory right to represent the state’s interests in the proceedings prior to the

declaration of unconstitutionality. See La. Rev. Stat. 49:257(B); Vallo v. Gayle Oil

Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 865.




                                           1
