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

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1 E-Filed Document Aug :20: CA COA Pages: 18 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHAN SINKO APPELLANT VS. NO CA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO ANTHONY SCHMIDT 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 Summary of the Argument Argument I. PCR was the correct procedure II. III. IV. People who were convicted and sentenced for selling or manufacturing controlled substances, prior to July 1, 2014, are not parole eligible Sinko s parole-ineligible status did not violate his Equal Protection rights, and Sinko s parole-ineligible status did not implicate his Due Process rights V. The trial court was not required to inform Sinko about whether or not he was eligible for parole Conclusion Certificate of Service i

3 Table of Authorities Federal Cases Fernandez v. United States, 492 F.2d 771 (5th Cir.1974) Hasset v. Welch, 303 U.S. 303, 58 S. Ct. 559, 82 L. Ed. 858 (1938) Smith v. United States, 324 F.2d 436 (D.C.Cir.1963), State Cases Belk v. Bean, 247 So. 2d 821 (Miss. 1971) , 7 Bell v. Union Planters Bank & Trust Co., 130 So. 4 (Miss. 1930) Bosarge v. State, 141 So. 3d 24 (Miss. Ct. App. 2014) Heafner v. State, 947 So. 2d 354 (Miss. Ct. App. 2007) Hughes v. State, 106 So. 3d 836 (Miss. Ct. App. 2012) Jones v. State, 976 So. 2d 407 (Miss. Ct. App. 2008) Justus v. State, 750 So. 2d , 11 Keys v. State, 67 So. 3d 758 (Miss. 2011) Lampley v. State, 308 So. 2d Lattimore v. Sparkman, 858 So. 2d 936 (Miss. Ct. App. 2003) McGovern v. Mississippi Dept. Of Corrections, 89 So. 3d 69 (Miss. Ct. App. 2011) , 12 Miss. Gaming Comm n v. Imperial Palace of Miss., 751 So. 2d , 8 Smith v. State, 973 So. 2d 1003 (Miss. Ct. App. 2007) Snow v. Johnson, 913 So. 2d 334 (Miss. Ct. App. 2005) , 12 Taylor v. Mississippi State Probation and Parole Board, 365 So.2d 621 (Miss.1978) , 12 Thomas v. State, 881 So. 2d 912 (Miss. Ct. App. 2004) Tipton v. State, 150 So. 3d 82 (Miss. 2014) Warden v. State, 36 So. 3d 493 (Miss. Ct. App. 2010) Ware v. State, 379 So. 2d 904 (Miss. 1980) Williams v. Puckett, 624 So. 2d 496 (Miss. 1993) Williams v. State, 821 So. 2d 883 (Miss. Ct. App. 2002) State Statutes Mississippi Code Annotated Section Mississippi Code Annotated Section Mississippi Code Annotated Section , 6, 9 Mississippi Code Annotated Section , 9 Mississippi Code Annotated Section Mississippi Code Annotated Section Mississippi Code Annotated Section Mississippi Code Annotated Sections , 5, 12 Other Authorities Looking Glass Law: Legislative Reference in the States, 68 La. L. Rev ii

4 Statement of the Case and Facts In July of 2011, Nathan Sinko was indicted by the Oktibbeha County Grand Jury for one count of manufacturing methamphetamine in violation of Mississippi Code Annotated Section , one count of possessing more than 30 grams of methamphetamine in violation of Mississippi Code Annotated Section , and for one count of generating waste in violation of Mississippi Code Annotated Section (CP 62-63). In May of 2012, Sinko entered a petition to plead guilty, and explained that, in exchange for his guilty plea, the State had agreed to ask the court to retire count three of his indictment to the files. (CP 85). At his plea proceedings, Sinko reaffirmed that he wanted to plead guilty to possessing and manufacturing methamphetamine. (CP 30). The trial court explained the minimum and maximum sentences that Sinko faced for each charge, and also explained the rights that Sinko would waive by pleading guilty. (CP 31-33).The trial court found that his pleas were voluntarily, knowingly and intelligently entered. (CP 34). As a factual basis for each conviction, the State explained that Sinko was charged after his father-in-law called authorities and informed them that he believed Sinko had a meth lab behind his home. (CP 34). By the time deputies arrived at the home, Sinko and his co-defendant had removed the suspicious items and had taken them to a dump site. (CP 35). However, Sinko informed law enforcement officers that he had placed a cooler in the back of his vehicle. (CP 35). The cooler contained a mixture of substances in the middle of a methamphetamine cook. (CP 35). Several containers that were in the cooler had methamphetamine in them. (CP 35). The crime lab tested the containers and found that one contained grams of methamphetamine, the second had grams, the third had grams, the fourth had grams, the fifth had grams, the sixth had grams, the seventh had grams, the eighth had

5 grams, and the ninth had grams. (CP 35). The trial court accepted Sinko s guilty pleas, and sentenced him, for each count, to serve 12 years in the custody of the Mississippi Department of Corrections (MDOC), and ordered him to pay a $5,000 fine. (CP 50 and ). His sentences were ordered to run concurrently. (CP 50 and ). Sinko filed a petition for post-conviction relief on November 13, (CP 5-8). In his PCR petition, Sinko claimed that he was informed that his parole had been granted; however he was later informed that he would not be released because he was not eligible for parole. (CP 6). Sinko asked the circuit court to set aside his 12 year sentence, and re-sentence him to time served. (CP 6). The circuit court denied Sinko s request, because it found that it lacked the authority to amend his sentence. (CP 22)(citing Warden v. State, 36 So. 3d 493, 496 (Miss. Ct. App. 2010)(holding that a request for a reduction or reconsideration of a sentence must be presented to the judge prior to the expiration of the sentencing term). The court found that a hearing was not necessary, and his petition should be dismissed. (CP 22). Sinko now appeals. Summary of the Argument The circuit court correctly found that the issues raised in Sinko s petition for post-conviction relief were without merit. The court also correctly found that, even if there were merit to Sinko s claims (he claimed that he was entitled to parole), it would not be appropriate to re-sentence him to time served. The 2014 change to the parole statutes did not affect Sinko s ineligibility for parole. 1 Although MDOC initially gave him a parole eligibility date and a parole action sheet, Sinko was 1 A document that informed him what he must do before being paroled. (CP 20). 2

6 never actually granted parole, and he was not given a parole certificate. To be clear, Sinko s parole was not revoked. He was not granted parole because he is ineligible for parole. The MDOC s determination that Sinko is not parole eligible was not incorrect. His parole ineligibility was not affected by the law that was enacted in 2014 through House Bill 585. The MDOC s interpretation of the parole statutes, which apply to Sinko, are supported by decisions from this Court, and by wellknown principles of statutory construction. Sinko s rights to Equal Protection and Due Process have not been violated. He was not entitled to relief, and he was not entitled to an evidentiary hearing. Argument Standard of Review When reviewing the dismissal or denial of a petition for post-conviction relief, this Court applies an abuse-of-discretion standard of review, and will only reverse if the trial court s decision was clearly erroneous. Hughes v. State, 106 So. 3d 836, 838 (Miss. Ct. App. 2012)(citation omitted). However, when this Court reviews questions of law, this Court applies a de novo standard of review. Id. I. PCR was the correct procedure. In his PCR petition, Sinko argued that MDOC had incorrectly found that he was not parole eligible, and asked the circuit court to set aside his sentence, and re-sentence him to time served. (CP 6). On appeal, Sinko argues that the circuit court erred in finding that it lacked the authority to entertain his petition. (Appellant s Brief p. 6). However, there was no error; the circuit court did entertain his petition. (CP 22). It found that Sinko was not entitled to relief, and that it lacked authority to re-sentence him. (CP 22). Although the circuit court had jurisdiction to entertain Sinko s PCR petition, it did not have the authority to provide the specific relief that Sinko sought. This Court has held that an inmate may 3

7 challenge policies, conditions, or events within the Department of Corrections that affect an inmate personally through administrative remedies, or an inmate may contest such matters through an original action in circuit court. Lattimore v. Sparkman, 858 So. 2d 936, 938 (Miss. Ct. App. 2003). And the Supreme Court has held that circuit courts have jurisdiction to entertain challenges to the MDOC s findings regarding parole eligibility, through PCR proceedings. Keys v. State, 67 So. 3d 758, (Miss. 2011). However, if a court disagrees with MDOC s finding regarding parole eligibility, the remedy is to issue an order setting forth findings in the petitioner s favor, not to resentence him. See Id. at 761. Accordingly, the circuit court did not err when it found that it lacked authority to re-sentence Sinko, and this issue is without merit. II. People who were convicted and sentenced for selling or manufacturing controlled substances, prior to July 1, 2014, are not parole eligible. Pursuant to Mississippi Code Annotated Section (1)(f), persons who were convicted of nonviolent crimes after June 30, 1995, may be eligible for parole. (emphasis added). The statute specifies that the sale or manufacture of a controlled substance is not considered a nonviolent crime. Miss. Code Ann (1)(f)(emphasis added). However, paragraph f of the statute goes on to provide that [a]n offender who is convicted of a violation under Section (a), not exceeding the amounts specified under Section (b), may be eligible for parole. Id. Mississippi Code Annotated Sections and were amended in The exact language of Miss. Code Ann (1)(h) was carried forward by the Legislature, and was re-codified as Miss. Code Ann (1)(f). The Legislature also added the following restrictive language to Miss. Code Ann (1)(f): "This paragraph (f) shall not apply to persons convicted on or after July 1, 2014." Prior to its amendment, and at the time that the Legislature incorporated Section

8 into Mississippi Code Annotated , these statutes (in combination) provided that a person convicted for selling a controlled substance except marijuana or synthetic cannabinoids was not parole eligible. (emphasis added). See Miss. Code Ann (b)(Rev. 2013). However, in 2014, the Legislature amended Section (b), and added sentencing guidelines for offenders convicted of selling and manufacturing Schedule I and II controlled substances (based on amounts sold and manufactured). Sinko argues that, based on the plain language of Miss. Code Ann , and the amendment to , he is now parole eligible. (Appellant s Brief p. 9-10). He bases his argument on the fact that he did not plead guilty to manufacturing a specified amount of methamphetamine. (Appellant s Brief p. 10). However, Sinko has misinterpreted the statutes, and this Court should find that the MDOC s interpretation is correct. The Supreme Court has held that the interpretation of a statute, given by the agency chosen to administer it, should be accorded deference. Williams v. Puckett, 624 So. 2d 496, 499 (Miss. 1993)(citation omitted). Furthermore, the Court held that if the MDOC erroneously interprets a statute, the error should be corrected by the legislature. Id. However, the MDOC has not misinterpreted the statutes at issue in this case. The MDOC s interpretation of the statute relating to parole eligibility for offenders convicted and sentenced for selling or manufacturing a controlled substance, prior to July 1, 2014, is supported by prior decisions from this Court. See Heafner v. State, 947 So. 2d 354, 358 (Miss. Ct. App. 2007), McGovern v. Mississippi Dept. Of Corrections, 89 So. 3d 69, 72 (Miss. Ct. App. 2011), and Turner v. State, 2013-CP COA (July 15, 2014). The MDOC s interpretation that the 2014 amendment only applies to people convicted after July 1, 2014 is further supported by the fact that, prior to July 1, 2014, the amount of a controlled substance that was sold or manufactured was not an element of the crime. See Smith v. State, 973 5

9 So. 2d 1003, 1007 (Miss. Ct. App. 2007)(citing Williams v. State, 821 So. 2d 883, 887 (Miss. Ct. App. 2002)). Offenders convicted under Miss. Code Ann , prior to July 1, 2014, for sale of a controlled substance (other than marijuana) were sentenced the same regardless of amount sold. See Id. The amount of the controlled substance sold or manufactured was not an element of the crime; therefore, sentencing orders and indictments received by MDOC for offenders convicted of sale or manufacture of a controlled substance (other than marijuana) do not contain the actual amount of controlled substance sold or manufactured. For offenders convicted on or after July 1, 2014, the actual amount of controlled substance sold is a now required element of the crime, pursuant to Miss. Code Ann The fact that the amount of a controlled substance that was sold or manufactured by an offender, prior to July 1, 2014, was not an element of the crime creates an ambiguity in the application of the statutes; therefore, principles of statutory construction are necessary to determine how these statutes should be applied. See Tipton v. State, 150 So. 3d 82, 84 (Miss. 2014)(citations omitted)(holding that appellate courts should not engage in statutory interpretation if a statute is plain and unambiguous). This Court should carefully review [the] statutory language and apply [their] most reasonable interpretation and meaning to the facts of [this] particular case. Id. Section consists of incorporative referential legislation the statute referenced within should be treated as if it were fully set forth at that point in the legislation. See Boyd, Looking Glass Law: Legislative Reference in the States, 68 La. L. Rev. 1201, 1210 and (2008)(explaining how this type of referential legislation should be interpreted). Our Supreme Court has held that where statutes refer specifically to another statute, it specifically embodies the statute referred to into the adopting statute. The effect of the adopting of an earlier statute is to incorporate the entire section of the earlier statute, the same as if recopied in the later statute. Belk v. Bean, 247 So. 2d 6

10 821, 828 (Miss. 1971)(citing 50 Am. Jur. Statutes section 38, page 58 (1944)). But when the statute that was referenced by a later statute is amended, the amendment does not amend the adopting statute. Id. (emphasis added). The United States Supreme Court announced the same holding in Hassett v. Welch, when it held that when one statute adopts the provisions of another statute, the adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications by the statute so taken unless it does so by express intent. Hasset v. Welch, 303 U.S. 303, 314, 58 S. Ct. 559, 564, 82 L. Ed. 858 (1938). The rule set forth in Belk and Hassett is applicable to the present issue. The 2014 amendment to Section did not amend Section When reading Section , and applying it to a person convicted and sentenced prior to July 1, 2014, the pre-2014-amendment version of Section applies. Accordingly, this Court should find that, because Sinko was convicted of manufacture of a controlled substance (other than marijuana), prior to July 1, 2014, he is not parole eligible. Sinko s argument that the Legislature intended for the amendment to to be retroactively applied is without merit. And his reliance on the recommendation from the Mississippi 2 Corrections and Criminal Justice Task Force to support his argument is inappropriate. The Supreme Court has held that legislative intent can be deduced from legislative acts alone, and that testimony to explain the motives which operated upon the law-makers, or to point out the objects they had in view, is wholly inadmissible. Miss. Gaming Comm n v. Imperial Palace of Miss., 751 So. 2d 1025, 1028 (Miss. 1999)(citation omitted). For this reason, the State of Mississippi respectfully requests that the report either not be considered by this Court, or, if this Court deems 2 In fact, this report was compiled by Pew Charitable Trusts, and not by the task force, itself. See Appendix to Appellant s Brief, p

11 necessary, that it be stricken from the record. In regard to whether statutes should be applied retroactively, the Supreme Court has held that [t]he rule is fundamental, in the construction of statutes, that they will be construed to have a prospective operation, unless the contrary intention is manifested by the clearest and most positive expression. Bell v. Union Planters Bank & Trust Co., 130 So. 486, 487 (Miss. 1930)(emphasis 3 added)(citations omitted). And, while [t]he legislature can and has on occasions[ ] permitted the trial court to resentence a defendant for a milder sentence where the authorization to so do is written into the new law[,]...the previous law remains in effect for the purpose of providing punishment, unless otherwise specifically provided in the new statute. Lampley v. State, 308 So. 2d 87, 90 (Miss. 1975)(citing Miss. Code Ann ). Mississippi Code Annotated Section provides the following: No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes. When the Legislature passed HB 585, it did not express that the amendment to the parole statutes should be retroactively applied, or that offenders convicted of sale or manufacture of a controlled substance should be re-sentenced or found to be parole eligible. Instead, the Legislature expressed its intention that offenders convicted after June 30, 1995, and prior to July 1, 2014, maintain their parole eligibility status, when it passed one provision that applies to offenders who were convicted after June 30, 1995, and before July 1, 2014, and a separate provision that applies 3 See Miss. Code Ann (Supp. 1974). 8

12 4 to offenders convicted after July 1, See Miss. Code Ann (f) and (g). Furthermore, the Legislature specifically noted that paragraph f would not apply to people convicted on or after July 1, 2014 (nor would the post-amendment version of Miss. Code Ann ). And the bill, itself, states that the "act shall take effect and be in force from and after July 1, See House Bill 585, Section 83. The potential for parole eligibility was clearly not intended to be retroactive. If the Legislature had intended for all drug offenders to be parole eligible, it could have easily stated so. It did not. However, the Legislature did specifically carve out a means by which non-violent offenders could retroactively seek parole eligibility. See Miss. Code Ann (1)(g)(iii). The actual language of Miss. Code Ann (1)(f) makes it clear that the legislature intended for offenders such as Sinko, who were convicted between June 30, 1995 and July 1, 2014, to retain the same parole eligibility status that they held prior to the passage of House Bill 585. And the principles of statutory construction, discussed above, help to interpret the statute and to give effect to the intent of the legislature. The 2014 amendment to Mississippi Code Annotated Section does not impact Sinko s parole eligibility. He remains ineligible for parole. The MDOC correctly interpreted the 4 Pursuant to Mississippi Code Annotated Section (1)(f), all offenders convicted after June 30, 1995 and before July 1, 2014, of sale or manufacture of a controlled substance (other than marijuana, subject to specified amounts), arson, felonies with enhanced penalties, or felonious abuse of vulnerable adults were parole ineligible at the time they were sentenced, and maintain their parole ineligibility status. However, in 2014, the Legislature specifically provided, through Section (1)(g)(i), that offenders who are convicted of these crimes on or after July 1, 2014 are parole eligible, because it did not include those crimes in its list of crimes of violence, and did not specifically prohibit those offenders from being parole eligible. See Miss. Code Ann (1)(g)(i) and But the Legislature also specifically provided that a person convicted of trafficking in controlled substances, is not eligible for probation or parole. See Miss. Code Ann (f)(1) and (2). 9

13 statute, and the circuit court correctly found that Sinko was not entitled to relief. Accordingly, this issue is without merit. III. IV. Sinko s parole-ineligible status did not violate his Equal Protection rights, and Sinko s parole-ineligible status did not implicate his Due Process rights. In response to this Court s decisions in McGovern and Turner, the Parole Board stopped its policy of considering for parole those felons who had been convicted of sale or manufacture of controlled substances. Sinko alleges a violation of his equal protection rights based on the parole board s decision to correct its policy, and to implement the law that provides that offenders convicted of manufacture of a controlled substance (other than marijuana) are not parole eligible. (Appellant s Brief p ). He essentially argues that, even if the MDOC was incorrect in its initial interpretation of the parole statutes (which it was), it should have continued to apply the incorrect application. Sinko repeats this argument in Issue IV of his brief, when he argues that the change in policy amounted to an unconstitutional ex post facto change in policy. (Appellant s Brief p ). For the sake of brevity, and to avoid being repetitive, the State will respond to Sinko s Issues III and IV in one section. Since Sinko has not alleged that he is a member of a suspect class, his argument that he has been denied equal protection of the laws should be reviewed under a rational basis standard of review. Justus v. State, 750 So. 2d 1277, 1279(Miss. Ct. App. 1999). Under this standard, the MDOC s policy (and interpretation of the parole statutes) should be upheld if there is a legitimate government interest, and the policy is rationally related to achieving it; however, this Court should not weigh competing interests such as rehabilitation and punishment that is the province of the Legislature. See Id. and Bosarge v. State, 141 So. 3d 24, 28 (Miss. Ct. App. 2014). The MDOC s policy was implemented to further a legitimate State interest: appropriately 10

14 punishing criminals. See Justus, 750 So. 2d at Sinko argues that his rights were violated because some prisoners were granted parole before the MDOC changed its policy, and that it was irrational for the MDOC to change it s policy to reflect the Legislature s intent. (Appellant s Brief p. 13). He also argues that the change in policy was unconstitutional because it increased his punishment. (Appellant s Brief p. 15). An argument, similar to the one raised by Sinko, was presented to this Court in Snow v. Johnson, 913 So. 2d 334 (Miss. Ct. App. 2005). In Snow, the Court explained that the MDOC had been forced to change its policy regarding parole eligibility dates for habitual offenders serving consecutive sentences, because its former methods for calculating parole eligibility dates conflicted with Mississippi Code Annotated Section (1)(Rev. 2000). Snow, 913 So. 2d at 337. Based on the correction in its policy, although Snow had once been placed in trusty status and earned a trusty time allowance, the MDOC later informed him that he was not entitled to the trusty time allowance or parole, and that his time sheet incorrectly indicated a parole eligibility date. Id. at 336. Snow filed a writ of habeas corpus, and asked the circuit court to order the MDOC to re-calculate his time. Id. at 336. The circuit court denied relief, and Snow appealed. Id. This Court affirmed the circuit court s decision, and in its opinion, the Court addressed the issue of whether the MDOC had the authority to change its policy, and to deny Snow a parole eligibility date. Id. at 338. The Court relied on the Supreme Court s holding in Taylor v. Mississippi State Probation and Parole Board, 365 So.2d 621 (Miss.1978), and found that, when the MDOC made an administrative correction to its prior misinterpretation of the parole laws, the change did not violate Snow s constitutional rights and did not violate the ex post facto clause of the United States or Mississippi Constitutions (even though the differing policy interpretations affected different prisoners in different ways). Id. The MDOC s correction to its previous erroneous interpretation of the parole statutes did not 11

15 violate Sinko s equal protection rights. Both the parole statutes, and the MDOC policy in applying those statutes serves a legitimate State interest. Furthermore, the fact that the MDOC previously misinterpreted the parole eligibility statute, and then corrected its error, did not result in the application of an ex post facto law, and did not violate Sinko s rights. See Snow v. Johnson, 913 So. 2d 334 (Miss. Ct. App. 2005), citing Taylor v. Mississippi State Probation and Parole Board, 365 So. 2d 621, 622 (Miss. 1978)(finding that an administrative correction by MDOC of a prior misinterpretation of law, even if it causes the offender to serve more time on his sentence, does not violated the offender s rights). In fact, the MDOC was required to change its policy once it realized that its former methods of determining parole eligibility conflicted with Mississippi Code Section Id., with McGovern, 89 So. 3d at 71, and Turner, 2013-CP COA (July 15, 2014) at The fact that the MDOC previously misapplied the parole statute, and then corrected its policy, did not change the fact that, at all times, Sinko was ineligible for parole, based on the fact that he had manufactured methamphetamine. He was sentenced, for two convictions, to serve twelve years. His sentence remained intact, and no years were added to his sentence, followoing the MDOC s change in its policy. Accordingly, both of these issues are without merit. V. The trial court was not required to inform Sinko about whether or not he was eligible for parole. Sinko argues that his due process rights were violated because he was not warned, at the time that he pleaded guilty, that he would not be eligible for parole; however, he also argues that it would have been incorrect for the trial court to warn him that he would be ineligible for parole because the policy of MDOC at that time was that he was eligible for parole. (Appellant s Brief p. 17). Case law clearly states that parole is a matter of legislative grace; therefore, parole eligibility or non-eligibility is not considered a consequence of a guilty plea. Thomas v. State,

16 So. 2d 912, 916 (Miss. Ct. App. 2004)(citing Ware v. State, 379 So. 2d 904, 907 (Miss. 1980)); Smith v. United States, 324 F.2d 436, 441 (D.C.Cir.1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964); and Fernandez v. United States, 492 F.2d 771 (5th Cir.1974) (finding that the trial court was not required to divulge parole eligibility information before accepting plea). And it is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted. Id. However, the Supreme Court has held that a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation. Id. Sinko argues that this rule announced in Ware should be overturned, or that he was, at least, entitled to a hearing to demonstrate that he relied on the MDOC s former policy when he entered his guilty plea. (Appellant s Brief p. 18). However, the rule should not be overturned, and Sinko was not entitled to a hearing because his claims were manifestly without merit. Furthermore, he did not present evidence to show that he was misinformed about his parole eligibility. See Jones v. State, 976 So. 2d 407, 412 (Miss. Ct. App. 2008)(citations omitted). In a document that Sinko filed in the circuit court on September 23, 2014, Sinko claimed that he did not plead guilty to a sentence without a parole date. (CP 2). However, the transcript of his plea proceeding does not indicate that he was misinformed about his parole eligibility, and (other than the fact that the MDOC initially assigned him a parole date, and then informed him that he was not eligible) he does not indicate why he thought he was parole eligible. Furthermore, Sinko entered an open plea; therefore, there was no agreement as to what his sentence would be. (CP 85). He was clearly not entitled to an evidentiary hearing, because he provided no support for his claims, and the record showed that his claims were without merit. This Court should affirm the trial court s ruling that Sinko s claims were without merit, and that he was not entitled to an evidentiary hearing. 13

17 Conclusion Sinko is not eligible for parole because he was convicted of manufacturing methamphetamine prior to July 1, The issues raised in his motion for post-conviction relief were without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm the trial court s decision to deny his petition. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO s/ Anthony Schmidt ANTHONY SCHMIDT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

18 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: This the 20th day of August, Honorable Lee J. Howard Circuit Court Judge Post Office Box 1679 Starkville, Mississippi Honorable Forrest Allgood District Attorney Post Office Box 1044 Columbus, Mississippi Jim Waide, Esquire Attorney At Law Waide & Associates, P.A. Post Office Box 1357 Tupelo, Mississippi Honey H. Ussery, Esquire Attorney At Law 426 South Lamar Blvd., Suite 13 Oxford, Mississippi OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL 15