IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Apr :36: CP COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI THOMAS HOLDER APPELLANT VS. NO CP STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases: Martinez v. Ryan, 132 S.Ct (2012) Mississippi Cases: Cobb v. State, 437 So.2d 1218 (Miss.1986) Evans v. State, 115 So.3d 879 ( 3) (Miss. Ct. App. 2013)... 6 Holder v. State, No CP COA, Decided Nov. 26, 2013, 137 So.3d 884, ( 5) (Miss.App.2013) Irving v. State, 498 So.2d 305 (Miss.1986) Mackey v. State, 37 So.3d 1161, ( 3) (Miss.2010)... 8, 9, 12, 13 Means v. State, 43 So.3d 438, ( 13) (Miss.2010)... 8, 9, 12, 13 Putnam v. State, 877 So.2d 468, ( 28) (Miss.App.2003) Ratcliff v. State, 120 So.3d 1058 (2013).... 5, 9 Stovall v. State, 873 So.2d 1056 ( 7) (Miss. Ct. App. 2004) Whitley v. City of Pearl, 994 So.2d 857 (Miss.App.2008)... 3 Wicker v. State, 16 So.3d 706 ( 5) (Miss. Ct. App. 2009)... 6 Mississippi Statutes: M.C.A., Section (1)(a)... 7 M.C.A., Section (1)(j) ii

4 STATEMENT OF THE CASE This is an appeal from the summary dismissal of an action for post-conviction collateral relief (pcr) against a judgment of conviction for fondling. The Circuit Court of Forrest County, Mississippi, Honorable Robert Helfrich presiding, entered an order summarily dismissing Thomas Holder s action. Thomas Holder claims that his sentence was illegal. That is the primary issue in this appeal. Holder makes his illegal sentence argument in his second proposition. Thomas Holder entered a guilty plea to fondling. The trial court sentenced Thomas Holder to a term of fifteen years and then suspended the sentence. The court suspended the sentence on the condition that Holder stay at least 100 miles from Hattiesburg during the suspension of the sentence. Further, the court ordered Thomas Holder to stay 500 feet away from Katlyn Holder, the juvenile victim of Holder s crime, and her two minor sisters. The court also ordered Holder to have absolutely no contact with the three Holder sisters. Holder argues that his sentence was illegal because the trial court failed to put his reasons for the condition on the record. Thomas Holder says that he is actually contesting the initial sentence, not the revocation. Brief of Appellant, Page 11. COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT On November 20, 2008, Thomas Holder entered a plea of guilty to touching a child with the intent to gratify his lust, also known as fondling. The Circuit Court of Forrest County accepted the plea of guilty and suspended all of a fifteen year sentence except for time served. The court ordered that Holder stay outside a one hundred mile radius of Hattiesburg, Mississippi during the 1

5 suspended time. C.P The court also ordered that Thomas Holder stay at least 500 feet away from Katlyn Holder and her sisters and to have absolutely no contact with them. The court gave Thomas Holder 24 hours to vacate the jurisdiction. Supplemental Volume filed 9/30/13, Pages On January 16, 2009 the Circuit Court of Forrest County revoked Thomas Holder s suspended sentence. The court found that Holder violated the conditions of his suspended sentence because he violated the laws of the State of Mississippi by giving false information to the Sheriff s department of Alcorn County when he registered as a sex offender. Supplemental Volume filed 8/21/13, Page 3. Holder filed his first PCR motion on April 12, 2011, alleging: (1) he received ineffective assistance of counsel at his plea hearing, and (2) he should have been provided counsel for his revocation hearing. The Circuit Court denied Holder s request for relief, and the Mississippi Court of Appeals affirmed the order of the Circuit Court. Please see opinion, Holder v. State, No CP COA, Decided Nov. 26, 2013, 137 So.3d 884, ( 5) (Miss.App.2013). Holder filed this second or successive action for post-conviction collateral relief in the Circuit Court of Forrest County, Mississippi. The court dismissed the action finding that it was a subsequent or successive writ and was filed beyond the limitation period. C.P Holder filed a notice of appeal. C.P This appeal is from the order dismissing Thomas Holder s post-conviction action. 2

6 STATEMENT OF THE FACTS The transcripts of the entry of the plea of guilty and sentencing, and the hearing on the revocation were not made a part of the appellate record in this appeal. They were, however, made a part of the appellate record in Holder s first action for post-conviction relief. The transcript is found in the Mississippi Supreme Court s records in the Office of the Clerk of the Court, Case # 2012-CP COA. The State asks the court to take judicial notice of the court s records. Whitley v. City of Pearl, 994 So.2d 857, 858 (Miss.App.2008). The citations to the appellate record below are to the appellate record in Case # 2012-CP COA. On or about April 19, 1998 and again on May 2, 1998 Thomas L. Holder had Katlyn Holder rub his penis with her hand or some other part of her body. Katlyn Holder was a child under the age of sixteen (16) years. Thomas Holder got Katlyn Holder to rub his penis to gratify his lust or to indulge his depraved sexual desires. Thomas Holder told the judge at the plea that he was 52 years of age. Supplemental Volume Filed , Vol. 1, Pages 3-5. Katlyn Holder had two minor sisters, Carla Holder and Sandra Jean Holder. Supplemental Volume Filed , Vol. 1, Page 5. Thomas Holder had no prior felony convictions. See Petition to Enter Plea of Guilty. C.P. Vol. 1, 109. Thomas Holder had no ties to the community of Hattiesburg, Mississippi. Supplemental Volume filed Tr. Vol. 1, Page 5. The court revoked Holder s suspended sentence because he violated the condition that he commit no crimes. Holder gave false information to the Alcorn County Sheriff s Office when he registered as a sex offender. Thomas Holder was arrested for that offense. Supplemental Volume filed 8/21/13, Page 3. 3

7 SUMMARY OF THE ARGUMENT PROPOSITION I. Thomas Holder claims that his post-conviction collateral relief action is excepted from the procedural bars, and the trial court erred when it summarily dismissed his action. Holder also argues that the Mississippi Post-Conviction Collateral Relief Act is unconstitutional because it suspended Holder s right to habeas corpus. Thomas Holder s claims are dependent upon the court s decision about the legality of his sentence. It is the State s position that the sentence was legal. The bars should have been applied, and the trial court correctly dismissed Holder s action. The Mississippi Act did not suspend Holder s rights to habeas corpus. The Act merely codifies the right to habeas corpus and other remedies. PROPOSITION II. Thomas Holder claims his sentence was illegal because a condition of his suspended sentence was that Holder was to stay at least 100 miles from Forrest County. Thomas Holder argues that such a condition in a sentence requires the judge to make an on-the-record finding of his reasons that a 100 miles limitation was an appropriate condition. The trial court made it clear that the reason that Holder was not only to stay 100 miles away from Hattiesburg but to also stay away from, and to have no contact with the victim and her two sisters. 4

8 ARGUMENT PROPOSITION ONE. The Procedural Bars and the Summary Dismissal by the Circuit Court: Thomas Holder claims that his action meets an exception to the procedural bars, and the circuit court erred when it entered the order summarily dismissing his action. Holder argues that his action is excepted from the bars due to intervening decisions by the United States Supreme Court and the Supreme Court of Mississippi. Holder begins this proposition by arguing about the bars.... PCR is excepted from the successive writ bars of the UPCCRA... and that its Summary Dismissal by the Circuit Court denied him a fundamental right to procedural Due Process of Law. Brief of Appellant, Page 4. Holder argues that there have been intervening cases which invalidate his original sentence, and he, therefore, meets the exceptions to the bars. Holder cites the intervening cases in footnotes 14 and 15. Holder cites Martinez v. Ryan, 132 S.Ct (2012) from the United States Supreme Court and Ratcliff v. State, 120 So.3d 1058 (2013), from the Supreme Court of Mississippi. Holder does not, however, tell us why he is citing the cases. He does not tell us what the cases hold or how they support his argument. Thomas Holder again claims that... his petition clearly meets the exceptions of the UPCCRA. Brief of Appellee, Page 6. Holder does later cite Ratcliff for its holding that guilty plea was not valid due to the absence of an adequate basis for... the predicated Banishment clause... Thomas Holder also argues that... because Holder has claimed that his original sentence was illegal, his Petition meets the fundamental Constitutional rights exception. Brief of Appellee, Page 6. With all due respect, merely claiming that a sentence is illegal is not enough to create an 5

9 exception to the procedural bars. Brief of Appellant, Page 7. However, the mere assertion of a constitutional right violation does not trigger procedural-bar exceptions. Evans v. State, 115 So.3d 879, 881 ( 3) (Miss. Ct. App. 2013) (quoting Wicker v. State, 16 So.3d 706, 708 ( 5) (Miss. Ct. App. 2009)). The claim of a fundamental-constitutional-rights violation must at least appear to have some basis of truth. Id. (quoting Stovall v. State, 873 So.2d 1056, 1058 ( 7) (Miss. Ct. App. 2004)). Holder further argues When such a lower court is made aware of a Supreme Court mandate, failure to adhere thereto may only be construed as an act of defiance by a renegade judiciary. Holder says he is the victim of this defiance and he... was denied a fundamental right to Due Process by the operation of a statutory scheme. The above issues about the exception to the procedural bars and the summary ruling by the circuit court will both be controlled by this court s holding on the question of whether Thomas Holder s sentence was illegal. Holder s argument about the legality of his sentence is found in the second proposition of this brief, and the State responds in that second proposition. The State s response is that Thomas Holder s sentence was not an illegal sentence. The short answer is that the sentence was legal, and the reason for the 100 mile condition was to keep Thomas Holder away from Katlyn Holder and her two juvenile sisters. The court told Holder that he was to have no contact of any kind with the three girls, and Holder was to stay at least 100 miles away from the Circuit Court in Hattiesburg, Forrest County, Mississippi. The court was trying to protect the victim, Katlyn Holder, and her two sisters from Thomas Holder. Holder s Claim that the UPCCRA Is an Unconstitutional Suspension of Habeas Corpus: Finally, at the end of the first part of Holder s argument is the following, Holder advances 6

10 the claim that the UPCCRA, hereinafter the Act, is an unconstitutional suspension of the Habeas Corpus. Brief of Appellant, Page 7. Holder concludes the first part with the following, However, the UPCCRA has operated to prevent HOLDER from so contesting his detention under a sentence which the Mississippi Supreme Court has determined to be illegal, thus affecting an unconstitutional suspension of Habeas Corpus. Thomas Holder does not explain how the Act has prevented him from contesting his detention. In fact, Holder argues in other parts of his brief that the Act supports his right to relief. Additionally, the Act provides a remedy for claims including one that the petitioner s sentence was imposed in violation of the Constitution or the laws of the State of Mississippi, i.e., an illegal sentence. M.C.A., Section (1)(a). The Act also provides a remedy for a claim upon an alleged error previously... available under common law, statutory or other writ, motion, petition, proceeding or remedy. M.C.A., Section (1)(j). The Mississippi courts have held that arguments claiming the Post-Conviction Collateral Relief Act is unconstitutional are without merit. Putnam v. State, 877 So.2d 468, ( 28) (Miss.App.2003). The Post Conviction Relief Act is not a new concept in Mississippi law. Irving v. State, 498 So.2d 305, 308 (Miss.1986). It is merely a codification of existing constraints on review traditionally practiced by the Supreme Court. Id. As a result, we find Putnam's last issue on appeal to be without merit. Putnam, Id., 28. PROPOSITION TWO. Holder says that he does not contest the revocation of his suspended sentence. He does claim, however, that his sentence was illegal. He alleges that the court failed to put on the record the reasons justifying the banishment. He concludes that the absence of the reasons in the record 7

11 violated his right to due process and rendered his sentence illegal. Holder also claims the court had no factual basis to accept the plea of guilty. The Circuit Court revoked Thomas Holder s suspended sentence because he violated the laws of the State of Mississippi by giving false information when he registered a sex offender. Supplemental Volume per order of 8/21/13, Volume 1, Page 3. In support of his argument, Holder cites Mackey v. State, 37 So.3d 1161, 1163, ( 3) (Miss.2010), and Means v. State, 43 So.3d 438, ( 13) (Miss.2010). The sentencing order was sufficient to allow an appellate court reviewing Thomas Holder s claim to determine the reason the court chose to impose the 100 mile condition. The reviewing court could determine whether or not a factual basis supported imposing the 100 miles condition. The opinions in Mackey and Means state the law which generally controls when the legality of banishments is questioned. However, they are both factually distinguished from Thomas Holder s case. First, Thomas Holder s suspended sentence was revoked because he gave false information to the Sheriff s Department when he registered as a sex offender, not because he violated the banishment condition. The suspended sentences in both Mackey and Means were revoked because Mackey and Means violated the 100 miles banishment condition. Mackey, Id., 1163, 3. Means, Id., 13. As Justice Carlson noted in his special concurring opinion in Mackey, Id. at 1168, 27, Since the trial judge's order revoking Mackey's suspended sentence is based solely on the violation of the banishment provision of Mackey's suspended sentence, the revocation order must be reversed, as noted by the majority. By way of contrast, Holder s revocation was not based upon violation of the 100 miles banishment condition. The trial court revoked Thomas Holder s suspended sentence because he 8

12 gave false information to the Alcorn County Sheriff s Department when he registered as a sex offender. Giving false information when registering as a sex offender is itself a violation of the laws of the State of Mississippi. Supplemental Volume per order of 8/21/13, Volume 1, Page 3. Second, Means is distinguished from Holder s situation because there is no transcript of Means s sentencing. Means, Id., 27. The Supreme Court found that it could not review the record to determine what the trial court had before it and what was said during Means s sentencing. As noted above, Holder s appellate record does not contain a transcript of the plea hearing, but Holder s prior post-conviction appeal does contain the transcript. This court can take judicial notice of its own records. Third, Mackey, Means, and Ratcliff all were given banishment orders for violations of the controlled substance laws. Ordering Holder to stay at least 100 miles from Katlyn Holder s home in Forrest County served the purpose of keeping Katlyn and her two minor sisters safe from Thomas Holder. The facts in Thomas Holder s case are importantly distinguished by the Circuit Court Judge s statement to Thomas Holder that he had to stay away from Katlyn Holder and her two sisters and to have no contact with them. Thomas Holder s sentence was for sexually abusing a juvenile. The nature of the crime together with the other conditions of Holder s sentence demonstrate the reasons the trial judge believed the banishment from Forrest County to be appropriate. Specifically, the sentence also prohibited Thomas Holder from contacting the victim, Katlyn Holder, and her two minor sisters... in person, by phone, by mail, or by any other means, including electronic communication... C.P. Vol 1, 38. Those facts support a finding that the judge believed that, if he could keep Thomas Holder a great distance away from Katlyn Holder and her two sisters for a long period of time, that the 9

13 victim and her sisters would not be in danger of being sexually abused by Thomas Holder or in danger of Thomas Holder retaliating against Katlyn Holder. If Thomas Holder had the right to move unrestricted, the girls would be in greater danger than if Thomas Holder were at least 100 miles away from Hattiesburg. The additional condition that Thomas Holder have no contact with the girls by any means, further supports a finding that the court believed that preventing contact between Thomas Holder and the girls would protect Katlyn Holder s safety and the safety of her sisters. While it is true that the Circuit Court Judge did not say These are the reasons I believe banishment is appropriate, or some semblance thereof, the Judge believed that it would be reasonable to suspend Thomas Holder s sentence if Holder could be kept a long distance away from Katlyn Holder and her sisters. If the judge had merely said, I will suspend the sentence and require you to stay at least 100 miles away from Hattiesburg or Forrest County, that would not be sufficient under our case law. That is not, however, what the Circuit Court Judge said when he sentenced Thomas Holder. The Judge who sentenced Thomas Holder told him he could have no contact with the three Holder sisters. The Judge also told him that he could not be any closer to them than 500 feet. The judge probably said that because he gave Thomas Holder 24 hours to leave Forrest County, and the Judge did not want Thomas Holder to try to contact the girls before he left Forrest County. Transcript, Supplemental Volume filed , Page The Voluntariness of Holder s Plea of Guilty: The transcript of Holder s guilty plea supports a finding that Holder entered his plea of guilty knowingly, intelligently, and voluntarily and acknowledged his guilt. The trial court conducted a colloquy with Thomas Holder before he accepted Holder s plea 10

14 of guilty. The court told Thomas Holder that he could receive a sentence of up to fifteen years, and the judge asked Holder if he understood. Holder said that he did. Transcript, Supplemental Volume filed , Page 6. The trial judge also explained to Holder that he had certain rights, but that he would waive those rights if he entered a plea of guilty. The court asked Holder questions to determine if he had been threatened or promised anything in order to persuade him to plead guilty. Holder s answers supported a finding that Holder had not been threatened or promised anything. The court explained the rights of being proved guilty beyond a reasonable doubt, the right to a jury trial, the right to confront witnesses, the right to testify or not, and the right not to be compelled to testify, Transcript, Supplemental Volume filed , Page 6-9. The trial judge asked counsel for Holder if she advised Holder of his constitutional rights. Counsel said she had advised Holder of his rights, and she knew of not reason the court should not accept the guilty plea. Transcript, Supplemental Volume filed , Page 9. Holder said that he signed the petition to enter his plea of guilty. Transcript, Supplemental Volume filed , Page 10. Thomas Holder s right to due process of law was not violated when he entered his plea of guilty. Standard of Review: A trial court's dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous. But when issues of law are raised, the proper standard of review is de novo. Means v. State, 43 So.3d 438, 441, ( 6) (Miss.2010). 11

15 Means and Mackey Summarize Mississippi s Law on Banishment: The opinion in Means sums up the present state of the law that applies when courts impose the condition of banishing a defendant from a certain location. This includes a discussion of the treatment of the procedural bars and the requirements if a banishment is to be upheld and affirmed. Means recognizes that Circuit Court Judge courts must satisfy himself that banishment must bear a reasonable relationship to the purpose of the probation, that the ends of justice and the best interest of the defendant and the public would be served, the public policy was not violated and the rehabilitative purpose of probation was not defeated, and that the defendants s rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution were not violated. Mackey v. State, 37 So.3d 1161, 1163, ( 3) (Miss.2010), and Means v. State, 43 So.3d 438, ( 13) (Miss.2010). The opinions in Mackey and Means both rely upon Cobb v. State, 437 So.2d 1218 (Miss.1986), as the seminal case providing the standards for banishment. In Cobb, the Court satisfied itself from the record that the banishment provision bore a reasonable relationship to the purpose of probation; that the ends of justice and the best interest of the defendant and the public would be served; that public policy was not violated and the rehabilitative purpose of probation was not defeated; and that Cobb's rights under the First, Fifth and Fourteenth Amendments to the United States Constitution were not violated. 437 So.2d at The Condition Ordering Holder to Stay 100 Miles Away: The order sentencing Holder reads in pertinent part as follows:... the banishment provision bears a reasonable relationship to the purposes of the suspended sentence or probation, that the ends of 12

16 justice and the best interest of the public and the Defendant will be served by such banishment during the period of the suspended sentence, that the banishment provision of he suspended sentence does not violate the public policy of the State of Mississippi, that the banishment provision of the suspended sentence herein does not defeat the rehabilitative purpose of the probation and/or suspended sentence, and such provision does not violate the Defendant s rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. C.P , Appellate Record, Case #2012-CP COA. Banishment As an Appropriate Condition for Thomas Holder: The Circuit Court articulated the ultimate facts into the record. The Circuit Court of Forrest County found that the factors stated in Mackey and Means existed and satisfied the requirements found in Mackey and Means. The circuit court did not go into details about the facts which supported its findings, but the words in the court s written order and the court s verbal order to Thomas Holder made it clear that, if Holder could stay away from Katlyn and her sisters, the court could suspend the sentence and allow Holder to be free of actual incarceration. The banishment would benefit Holder by keeping him free from actual incarceration. Keeping Holder at least 100 miles from Hattiesburg for the balance of the sentence would protect Katlyn and her sisters from Holder and would allow them to grow up without being sexually abused by Holder. That shows the reasonable relationship between the suspended sentence and the 13

17 banishment. It also shows that the ends of justice and the best interest of the public would be served. Thomas Holder would have to register as a sex offender wherever he lived. The local sheriff s department would be aware of him and know to watch Holder. It would not have been against public policy and would not have defeated the purposes of the suspended sentence. As can be seen in the plea colloquy, Holder s plea was given voluntarily, intelligently, and knowingly. His due process rights were not violated. 14

18 CONCLUSION The facts in the record of Thomas Holder s first PCR support a finding that the 100 miles condition was appropriately given in order to protect the victim and her two juvenile sisters. Holder s sentence was not illegal because the reasons for the 100 miles restriction was clear from the Judge s statements in person to Thomas Holder and the written order itself. The circuit court correctly imposed the procedural bar and summarily dismissed the action. The state asks this court to affirm the order of the circuit court. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

19 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Robert B. Helfrich Circuit Court Judge Post Office Box 309 Hattiesburg, MS Honorable Patricia Burchell District Attorney Post Office Box 166 Hattiesburg, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Thomas L. Holder, # SMCI-2 C2, Bed-171 Post Office Box 1419 Leakesville, MS This the 4 th day of April, s/scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601)