E-Filed Document Nov :38: CA COA Pages: 20 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STATE OF MISSISSIPPI

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1 E-Filed Document Nov :38: CA COA Pages: 20 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ANTONIO VASHON SMITH APPELLANT VS. NUMBER 2014-CA COA STATE OF MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF LAUDERDALE COUNTY, MISSISSIPPI BRIEF OF APPELLANT James A. Williams MSB # 7270 Attorney for Appellant Post Office Box 5002 Meridian, Mississippi Telephone: (601) Facsimile: (601)

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record for Appellant certifies the following listed persons have an interest in the outcome of the case. This representation is made in order that the Judges of this Honorable Court may evaluate possible disqualifications or recusals: Bilbo Mitchell, District Attorney Jim Hood, Attorney General James A. Williams, Appellant s Attorney Hon. Lester F. Williamson, Jr. Judge Hon. Thomas Q. Brame, Jr., Trial Attorney Antonio Vashon Smith, Appellant s/james A. Williams James A. Williams, MSB# 7270 Attorney for Appellant

3 Table of Contents Certificate of Interested Persons Table of Authorities ii Statement of Issues 1 Issue One 1 Issue Two 1 Issue Three 1 Statement of the Case 1 Proceedings Below 1 Introduction and General 1 First Revocation 3 First Order Revoking Probation 4 Statutory Basis for Revocations 4 Smith s Argument of No Authority for 4 Second Revocation Second Revocation Hearing/New Sentence 5 Statement of the Grounds for Motion. 6 Right to effective assistance of counsel. 6 Double Jeopardy and No Statutory/Case Authority for Sentence. 7 Order Denying PCCR 8 Summary of Argument 8 Argument and Brief 9 Proposition One 9 Proposition Two 12 Proposition Three 14 Conclusion 14 Certificate of Service i

4 Table of Authorities Artis v. State, 643 So.2d 533(Miss.,1994) 11 Billiot v. State, 515 So.2d 1234(Miss.,1987) 12, 13 Brooks v. State, 573 So.2d 1350(Miss.,1990) 12 Campbell v. State, 430 So.2d 851(Miss.1983) 10, 11 Cherry v. State, 24 So.3d 1048(Miss.App.,2010) 12 Cotton v. McConnell, 435 So.2d 683(Miss.1983) 10 Culbreath v. Johnson, 427 So.2d 705(Miss.1983)) 10 Curry v. State, 855 So.2d 452(Miss.App.,2003) 11 Denton v. Maples 394 So.2d 895 (Miss. 1981) 11 Fanning v. State, 497 So.2d 70 (Miss.1986) 10 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, L.Ed.2d 656 (1973) Kelly v. State, 80 So.3d 802(Miss.2012) 10 Kirksey v. State, 728 So.2d 565(Miss.,1999) 9 McMillian v. State, 774 So.2d 454(Miss.Ct.App.2000) 13 Meeks v. State, 781 So.2d 109(Miss. 2001) 13 Mississippi Com'n of Judicial Performance v. Russell So.2d 929 (Miss. 1997) Moore v. State, 585 So.2d 738(Miss.,1991) 10 Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct L.Ed.2d 484 (1972) Par Industries, Inc. v. Target Container Co., So.2d 44(Miss.,1998) ii

5 Simmons v. State, 784 So.2d 985(Miss.App.,2001) 13 Stewart v. State, 938 So.2d 344(Miss.App.,2006) 9 Turner v. State, 590 So.2d 871(Miss.,1991) 13 Vielee v. State, 653 So.2d 920(Miss.,1995) 12 Other: Mississippi Code Annotated Section Section Section , 11 iii

6 BRIEF OF APPELLANT STATEMENT OF ISSUES ISSUE ONE Whether a Prisoner Is Denied Due Process of Law and Fundamental Fairness and Suffers Double Jeopardy Where His Original Suspended Sentence of Ten Years Is Revoked to Serve a Year, but the Judge, after the Petitioner Exits Prison and Is under the Same Original Probationary Period, upon Petition Alleging Violation of Probation Is Revoked Again and Ordered to Serve the Remaining Nine Years. ISSUE TWO Whether a Prisoner Is Denied Due Process of Law and Fundamental Fairness and a Fair Hearing When He Is Denied an Evidentiary Hearing on a Post Conviction Collateral Relief Petition Where He Shows That He Was Not Informed That a Sentence on a Sex Crime Would Have to Be Served Day for Day, That the Probation Officer Had Told the Petitioner He Would Speak up for Him at the Hearing, but Did Not, and the Judge Misconceived That Petitioner Had Paid None on His Fines and Fees.. ISSUE THREE Whether A Prisoner Is Denied Fundamental Fairness and Due Process of Law and a Guilty Plea Should Be Set Aside Where He Is Not Given Advice That Any Sentence He May Serve Is Day for Day. PROCEEDINGS BELOW STATEMENT OF THE CASE Introduction and General On February 22, 2006, Antonio Vashon Smith, was indicted in Case Number in the Circuit Court of Clarke County, Mississippi on two Counts. Count I of the Indictment was a charge of sexual battery by penetration, as prohibited in Section (1)(d) of Mississippi Code Annotated of 1972, as amended, alleging an incident date of September of This Count I had been investigated contemporaneous to the alleged incident of September 2002 and no prosecution was held, it being the fact and circumstances that no penetration nor other prohibited contact by Antonio Smith with the child had occurred. The victim Deshauna Johnson was under the age of 14 at the time of the alleged incident and Smith was more than 24 months older than her. In Count II of the Indictment, Smith was charged with Fondling of Deshauna Johnson on August 2005,prohibited by Section (1) of the MCA. This Count II charged that the fondling occurred in Lauderdale County, Mississippi, while 1

7 Count I charged that the sexual battery occurred in Clarke County, Mississippi. In fact the entire language of Count II, from its caption to the end of the charging language stated Lauderdale County, Mississippi. On February 24, 2006, Smith waived arraignment and pled not guilty to both counts and was represented by retained counsel Thomas Q. Brame, Jr. of Bay Springs, Mississippi. On June 20, 2006, a court order was entered requiring the medical records of the child at Rush Foundation Hospital to be produced at Court. Those records were described as: A complete copy of every document in your file regarding the sexual assault protocol, pelvic examination and other evaluations that were conducted on Deshauna Johnson in or about August, These records were to be supplied to attorney Brame and to the District Attorney s office. On July 19, 2006, Smith submitted a guilty plea petition to Count II, in which petition, nor during the plea hearing, was Smith informed by the Court or his attorney, that if he violated probation terms, then any time to be served would be day for day as a sex offense. The plea offer and the eventual sentence on Count II was that Smith was sentenced to a ten year sentence, all of which was suspended, and to reporting probation for a period of five years and to pay various fees and restitution. Smith maintained his innocence and, is in fact innocent of the crimes set forth in the Indictment. His plea as to the factual predicate for the plea was offered and accepted under Alford v. North Carolina, i.e. Smith maintained his innocence of fondling. As for the medical records of the child, Smith was never informed of the content of those records, and he states that they could not show evidence of the Count I crime of sexual penetration. Those records were not disclosed to him by his retained attorney. There was no amendment of the Indictment to allege that the fondling crime occurred in Clarke County, Mississippi and not, as it did allege, that the crime occurred in Lauderdale County, Mississippi. The Count I charge of sexual battery was dismissed. The Court on July 19, 2006 entered its Order Accepting Guilty Plea and Sentencing in which, among other things, the Court imposed a total fine and fees of $ , payable at $25.00 per month during the period of probation. The final language of the body of the Order stated: 2

8 You are hereby advised that under the laws of the State of Mississippi, the Court shall determine the terms and conditions of your probation, and may at any time during the period of probation, alter, modify, extend, terminate or direct the enforcement of the above sentence. Further the Order had condition (Q) which required Smith to register as a sex offender and condition (A) was that Smith commit no offense against the laws of the State. The statute as to enforcement of a failure to register is found in Section (4) of the Mississippi Code and, in relevant part, states: (4) A first violation of this Chapter may result in the arrest of the offender. Upon any second or subsequent violation of this Chapter, the offender shall be arrested for such violation. First Revocation On March 29, 2007, Smith s probation officer filed a Petition to revoke probation alleging that Smith had violated condition (Q) specifically saying: that the Defendant failed to register in a timely manner. He was scheduled to re-register on and as of (Arrest Date) he had failed to re-register as a Sex Offender. Before the filing on March 29, 2007 of the Petition to revoke, the payment history on the total original amount of $ recounts(in the Court file), that Smith had paid August 2006, October 2006, December 2006,(X3), January 2007 and March 2007, for a total of $ A revocation hearing was originally set for May 7, 2007 and Attorney Brame re-entered the case to represent Smith at the revocation hearing. The hearing was continued from May 7th to August 29, 2007 to allow the grand jury to hear pending felony case,, which was the failure to register event. On August 29, 2007, a hearing was held on the revocation petition before the Circuit Judge, the Honorable Lester F. Williamson, Jr. and the Judge entered an Order Revoking Probation after finding that Smith had violated Condition (Q). 3

9 First Order Revoking Probation The language of the revocation order as the consequence of violating condition (Q) was: It is therefore, ordered and adjudged that the Defendant s probation is revoked and he/she is sentenced to serve One(1) year the(sic) custody of the Mississippi Department of Corrections. Defendant shall receive credit for 182 days from being(sic) Five(5) days pretrial and from March 6, 2007 to 8/29/2007. If the Defendant fails to strictly abide by probation terms then he will be subject to revocation of the remaining Nine(9) years of his original Ten(10) year sentence. The Defendant s probation will end in July Statutory Basis for Revocations. Section of Mississippi Code Annotated proscribes the power of the Circuit Judge upon a finding of violation of probation, in relevant part, as follows;...the court, in term time or vacation, shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction. Smith s Argument that No Authority for Second Revocation. Smith contends that once the Court has exercised the power granted under this Section , and has revoked any part of the suspension of sentence and caused that all or part to be served, then subsequently, the Court is without power to impose in the future any more of the suspended sentence. Further Smith contends that the Court at that hearing only has power at that time to continue probation within the terms of the probation s original length. Here, as to probation term, the Court did not change it. The language of the Order said: The Defendant s probation will end in July 2011, which was the original terminal point of the five year probation period. The may continue or revoke all or any part of the probation or the suspension of sentence language does not allow the Court to lengthen the probation from its original length at the original sentencing. The may continue or revoke all or any part of the probation or the suspension of sentence certainly authorizes the court to impose an adverse, negative consequence for the probation violation. 4

10 There was no suspension of any sentence at the revocation hearing. The only sentence was to one(1) year. However, the Court is, in this Statute, allowed to impose no sentence to serve as a consequence. The only power is to activate a portion or all of the originally imposed sentence that was suspended. The negative consequence of prison commitment is authorized by the statutory language of and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction. Significant here, is the authority given the Court to impose only part of the sentence. That is what the Court did here at the revocation hearing and caused only One(1) year to be served. Second Revocation Hearing/new Sentence After the first revocation, Defendant went on and served the one year in the penitentiary and, to the surprise of the Defendant, it was day for day. After getting out he approached Attorney Brame on whether the sentence was day for day. Attorney Brame admitted that at the first revocation he had told Smith that the sentence would be served at 85 per cent. Attorney Brame said he would have to research whether any sentence would be day for day. Attorney Brame quoted a fee for this research, which as Defendant recalls, of approximately $ No such research was purchased nor advice given as to whether the fondling sentence was day for day. After the second revocation, Smith called Attorney Brame and he said the time was day for day. On August 6, 2009, probation officer Jamie West, filed a petition for probation violation alleging that Defendant had been warned twice not to let his sex offender registration expire and it had expired in April, Further the Defendant had failed to pay court assessments and Mr. West said Defendant had paid no such and owed the original balance of $ Further Mr. West charged that Defendant had failed to pay probation reporting fees of $ Finally Mr. West charged that the Defendant had failed to register on two occasions, April 2009 and August

11 When Mr. West came to arrest the Defendant, Defendant was allowed to drive his car to his mother s house and there submit to the arrest. The Defendant asked Mr. West if he needed an Attorney, but Mr. West said he did not and that he(mr. West) would speak up for him at the hearing. When Smith got to the second revocation hearing, Mr. West did not speak up for him and in answer to the Circuit Judge s question whether West wanted to violate Smith, Mr. West told the judge yes. The Circuit Judge began to intently speak to Smith about failing to make the payments and this as much because it was represented and not corrected, that Smith had paid no fees and fines. Smith was unable to defend himself though it was true that Smith had paid substantial portion of the fees and fines. The Circuit Judge remarked that a statutory rape Count of the Indictment had been dropped. Further Smith was unprepared for the hearing because he thought Mr. West would intervene with the Circuit Judge in order that Smith not be revoked. Mr. West did nothing to assist Smith. Smith requested a continuance, but it was denied. Had a continuance been granted, Smith would have retained counsel for the hearing. Smith had been out of work and his license was suspended and he was unable to get to work and unable to get to Meridian to register. Smith was thus denied the benefit of counsel at the revocation hearing and, with counsel, it is a high probability that Smith would not have been revoked and sentenced anew on the fondling conviction. STATEMENT OF THE GROUNDS FOR MOTION. Right to effective assistance of counsel. (A) At the Guilty Plea. Attorney Thomas Brame did not advise the defendant during the plea discussions that the time would be day for day, if Defendant were later to suffer revocation of his suspended sentence. Brame did not challenge the fact that Count I on sexual battery was a totally unfounded charge and had been abandoned by the Sheriff s office and was only brought up to force a plea to 6

12 Count II, fondling. Smith s wife used the charges to file for a divorce, with Smith being served with divorce papers within day of his original arrest. After the divorce the Smith s lived together in the same house as the alleged child victim and before the guilty plea, went to Attorney Brame s office where Ms Smith signed papers to drop the charges, but they were never dropped. Petitioner alleges that Count I was added just for the purpose of forcing a plea to the fondling count. For a plea to fondling to be gained through a totally unfounded greater charge, sexual battery, made involuntary the plea on Count II. (B) At the First Revocation Hearing. Brame did not defend against revocation by interposing the legislature s preference in the sexual registration statutes that a person does not have to be arrested or charged on the first violation of a registration duty. There is a right not to be arrested on a first violation and there should be standards applied to evaluate on a case by case basis whether to arrest and revoke a suspended sentence on a first violation. Smith s arrest upon a first violation of sex registration duty is a violation of the due process and equal protection provisions of the 14th Amendment to the U. S. Constitution. Double Jeopardy and No Statutory/Case Authority for Sentence. On September 1, 2009, there was a violation of the double jeopardy prohibition in sentencing, and the Circuit Court exceeded statutory and case authority, when Smith was sentenced again, this time to nine(9) years in prison, when he had already been sentenced to one year in prison and had served that sentence. When the Circuit Judge had before it the first revocation petition and he chose to sentence Smith to only one year in the penitentiary, then there was no more authority available, and further, such second sentence violated the double jeopardy clause. 7

13 Smith was denied a fair hearing and the right to counsel at the hearing. His rights to substantive and procedural due process were violated. Under the facts and circumstances above and in the petition itself, it is clear that counsel was important to Smith. The Judge asked Mr. West whether he wanted to violate Smith and Mr. West by saying Yes, contradicted the impression under which he had left Smith when he told him he would speak up for him. Thus Smith did not retain counsel to assist him at the hearing. Mr. West yielded to the Judge s factually unfounded view that Smith should be revoked due to an absolute failure to pay, no excuse for failure to register and that Smith had gotten leniency, so to speak, by the State dropping the statutory rape Count. Again, Smith asserts strong doubts that the medical evidence showed any alleged penetration, thus asserts there was no basis but plea advantage in the State s having Smith indicted for statutory rape. ORDER DENYING PCCR This Order is found in Record Excerpts at page 3 and Clerk s Papers p As relevant below in the Propositions, Smith contends against the reasoning of that Order and its denial of an evidentiary hearing. SUMMARY OF ARGUMENT Smith contends that the authority of the circuit court to revoke or operate upon the original sentence of ten years suspended was exhausted at the first revocation hearing where the judge only imposed one year of the ten. Though the judge said if Smith violated probation after serving the one year he would revoke the remaining nine years, there was no authority to do so and a second sentence constituted double jeopardy. Smith contends that his attorney at the guilty plea hearing, nor the court informed him that this lustful touching was a sex crime that required mandatory day for day time of any revoked suspended sentence. He contends he is entitled to an evidentiary hearing on this claim and his claim that he would have hired an attorney for the second revocation hearing hadn t his probation officer 8

14 told him that he didn t need once since the probation officer would speak for him. He is entitled to a hearing on the erroneous conclusion by the trial judge that he had not paid any on his fines and fees. He contends that his guilty plea should be set aside because of the failure to be advised that any time served would be day for day. ARGUMENT AND BRIEF PROPOSITION ONE A Prisoner Is Denied Due Process of Law and Fundamental Fairness and Suffers Double Jeopardy Where His Original Suspended Sentence of Ten Years Is Revoked to Serve a Year, but the Judge, after the Petitioner Exits Prison and Is under the Same Original Probationary Period, upon Petition Alleging Violation of Probation Is Revoked Again and Ordered to Serve the Remaining Nine Years. Standard of Review In Kirksey v. State, 728 So.2d 565, 567(Miss.,1999), the Court stated: In reviewing a trial court's decision to deny a petition for post conviction relief this Court will not reverse such a denial absent a finding that the trial court's decision was clearly erroneous. State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990). In Stewart v. State, 938 So.2d 344, 345(Miss.App.,2006), the Court explained that factual findings are subject to clearly erroneous review, findings will be presumed and distinguished de novo review for questions of law: This Court will not disturb the trial court's factual findings, when reviewing a decision to deny a petition for post-conviction relief, unless they are found to be clearly erroneous; however, the applicable standard of review is de novo where questions of law are raised. Brown v. State, 731 So.2d 595, 598( 6) (Miss.1999). Furthermore, where the trial court summarily dismisses the post-conviction relief claim, it does not have an obligation to render factual findings and this Court will assume that the issue was decided consistent with the judgment and... will not be disturbed on appeal unless manifestly wrong or clearly erroneous. Culbert v. State, 800 So.2d 546, 550( 9) (Miss.Ct.App.2001) (quoting Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47( 4) (Miss.1998)). In Par Industries, Inc. v. Target Container Co., 708 So.2d 44 46(Miss.,1998), explained clearly erroneous as protecting a circuit judge s ruling where his findings are supported by substantial, credible, and reasonable evidence, and will not disturb them on appeal unless manifestly wrong or clearly erroneous. In utilizing clearly erroneous, the reviewing court must examine the entire record and must accept, that evidence which supports or reasonably tends to 9

15 support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact. Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983) ( quoting Culbreath v. Johnson, 427 So.2d 705, (Miss.1983)). The Court, at 46, strongly acknowledge as to matters of law: Notwithstanding our respect for and deference to the trial judge, on matters of law it is our job to get it right. That the trial judge may have come close is not good enough. Cooper, 587 So.2d at 239 ( quoting UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987)). After First Revocation Court was Without Authority to Revoke Again. Smith s argument is that under case law and the statutes regulating imposition of sentence and revocation of probation, once the Court in 2007 revoked only one year of his ten year suspended sentence, he served the same and was released, that it had no authority in September 2009 to sentence him to the remaining nine years of the suspended sentence. Under Kelly v. State, 80 So.3d 802, 805 (Miss.2012) the double-jeopardy clause provides three separate protections: (1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense. Here Smith complains that once the Court at the first revocation hearing imposed a sentence of one year then it had no authority at the second revocation hearing, after Smith s release from prison, to impose the nine years remaining on the original ten year sentence imposed, but suspended at his guilty plea hearing. He contends the court had no authority but to impose all or some lesser portion of the ten year suspended sentence and once the court imposed only one year then that was all the court had power to do. In Moore v. State, 585 So.2d 738, (Miss.,1991) the Court authorized split sentences and that is the effect of the one year sentence resulting from the first Revocation hearing under of Mississippi Code Annotated citing the approval of such sentences in Fanning v. State, 497 So.2d 70 (Miss.1986) and Campbell v. State, 430 So.2d 851 (Miss.1983)., describing that section as authorizing a circuit or county to suspend the execution of a sentence in a felony case, and instead place the defendant on probation as including the lesser power to to suspend in part the 10

16 execution of a sentence. In Artis v. State, 643 So.2d 533, 537(Miss.,1994.), the court, referring to Miss.Code Ann (1972), (1972) and (1972), said: We find pursuant to the foregoing Code sections that the normal course of procedure, when the court exercises its authority to suspend the execution of a portion of a defendant's sentence, is as follows: (1) impose a sentence; (2) determine what portion is to be suspended; (3) impose a period of probation (up to five years); and, (4) specify the terms and conditions upon which the probation/suspended sentence is contingent. Then, any time during the period of probation (i.e., within five years from the end of the time served portion of the sentence), if upon hearing it is determined that the probationer violated any of the specified conditions of his probation, the court has the authority to revoke any part or all of the probation or any part or all of the suspended sentence, as if the decision to suspend the sentence and place the defendant on probation had never been made. In Curry v. State, 855 So.2d 452, 454(Miss.App.,2003), the Court said: There is no question that the circuit court could have ordered Curry to immediately begin serving the entire balance of his original sentence once the court determined that he had violated the terms of his probation. However, it is also a fact that the circuit court has some discretion in the matter of further punishment after adjudicating a violation and may, in the exercise of its sound discretion, sentence the violator to something less than the entire unserved portion of the original sentence. Granting a probation violator the opportunity to be confined for a relatively brief time under the RID Program with the opportunity to earn an early release by successful completion of the program requirements is, in our view, an appropriate exercise by the circuit court of the discretion afforded it under Section of the Mississippi Code. We know that when a defendant begins to serve the sentence imposed, time has passed for trial judge to suspend sentence under statute giving court authority to suspend sentence. See Mississippi Com'n of Judicial Performance v. Russell 691 So.2d 929 (Miss. 1997)(reh den. ) Further we know from Denton v. Maples 394 So.2d 895 (Miss. 1981) that the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the trial judge announces and imposes sentence; if no appeal is perfected and defendant begins to serve the sentence imposed, the time has passed for the trial judge to suspend the sentence. In Campbell v. State, 430 So.2d 851, 853(Miss.,1983), the Court expressed the limited power of the trial court in matters such as these: After the January 1981 term of the Lamar County Circuit Court at which Campbell was sentenced had expired, even the circuit judge had no authority to impose a new or different sentence than that imposed at that term. Following this term, the circuit judge's sole authority in the case was to determine whether or not all or a portion of the original suspended sentence should be revoked. See Harrigill v. State, 403 So.2d 867 (Miss.1981); Denton v. Maples, 394 So.2d 895 (Miss.1981). 11

17 PROPOSITION TWO A Prisoner Is Denied Due Process of Law and Fundamental Fairness and a Fair Hearing When He Is Denied an Evidentiary Hearing on a Post Conviction Collateral Relief Petition Where He Shows That He Was Not Informed That a Sentence on a Sex Crime Would Have to Be Served Day for Day, That the Probation Officer Had Told the Petitioner He Would Speak up for Him at the Hearing, but Did Not, and the Judge Misconceived That Petitioner Had Paid None on His Fines and Fees.. Here Smith argues the original guilty plea was involuntary since Smith s retained attorney did not inform him, nor did the judge, that, if the suspended sentence were revoked that any sentence given would be day for day. He argues that he was deceived into not acquiring counsel for the second revocation hearing because his probation officer told him that he(the probation officer) would speak for him not to go to jail and that the trial court misconceived that Smith had paid not one red cent on his fines and penalties. Smith s sworn PCR petition raises these claims and further the Record Excerpts payment sheet(re 132, CP38) does show some payments. The so-called rule of not PCR claiming ineffective counsel shall be granted, or at least justify an evidentiary hearing, developed first from Brooks v. State, 573 So.2d 1350, 1354(Miss.,1990), and on through Vielee v. State, 653 So.2d 920, 922(Miss.,1995) and in Cherry v. State, 24 So.3d 1048, 1051(Miss.App.,2010). At lease Smith s retained attorney should have been made to respond to the failure to apprise Smith of mandatory day for day time. No doubt the record of the guilty plea does not show that the court advised Smith of this onerous outcome if he violated probation. The same argument as to no PCR based solely upon the prisoner s affidavit, applies as to Smith s failure to obtain counsel at the second revocation hearing because of an assurance by his probation officer that the probation officer, himself, would speak in Smith s favor. The revocation hearing clearly show the probation officer actually sought revocation. Strangely proving Smith s contention on this is that the probation officer did say some time should be revoked. This helps prove Smith s claim that he didn t need counsel, if you view this statement by the officer as his just moving with the flow of the wind. 12

18 Evidentiary Hearing In Turner v. State, 590 So.2d 871, 873(Miss.,1991) the court gave a substantive standard for denying an evidentiary hearing and analogized to summary judgement, saying: We adhere to the principle that a post-conviction collateral relief petition which meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Myers v. State, 583 So.2d 174 (Miss.1991); Harris v. State, 578 So.2d 617, 619 (Miss.1991); Wright v. State, 577 So.2d 387, 389 (Miss.1991); Billiot v. State, 515 So.2d 1234, 1237 (Miss.1987).(Writer s emphasis) We have analogized the court's position when faced with a petition meeting pleading requirements with that of a court in a civil procedure considering a motion for summary judgment. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Harris, 578 So.2d at 619; Wright, 577 So.2d at 389; Billiot, 515 So.2d at There is a distinction however. Our Post-Conviction Collateral Relief Act [Miss.Code Ann et seq. (Supp.1992) ] provides a procedure limited in nature to review those matters which, in practical reality, could not or should not have been raised at trial or on *875 direct appeal. Miss.Code Ann provides that the trial court judge shall examine not only the motion, but also files, records, transcripts, and correspondence relating to the judgment under attack as well as prior proceedings in the case to determine whether movant is entitled to relief. Summary dismissal motions under Miss.R.Civ.P. 12(b)(6) restrict the court to the pleadings. If matters outside the pleadings are considered, the motion is treated as one for summary judgment and disposed of as provided in Miss.R.Civ.P. 56. In Billiot v. State, 515 So.2d 1234, 1236(Miss.,1987), the Court pointed out that in a post conviction petition the procedural posture is analogous to that when a defendant in a civil action moves to dismiss for failure to state a claim. See Rule 12(b)(6), Miss.R.Civ.P. In Simmons v. State, 784 So.2d 985, 987(Miss.App.,2001), the Court wrote: Secondly, we must address the issue of when an evidentiary hearing is required... In regards [sic] to evidentiary hearings, the Post Conviction Collateral Relief Act reads: (1) If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require. Miss.Code Ann (1) (Rev.1994). Clearly, the trial court is not required to grant an evidentiary hearing on every petition it entertains. More specifically, the Act states: If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified. Miss.Code Ann (2) (Supp.1999). McMillian v. State, 774 So.2d 454 ( 5-6) (Miss.Ct.App.2000). In Meeks v. State, 781 So.2d 109, at 111(Miss. 2001), the Court explained clearly erroneous as applied to a finding of an ultimate fact as when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction 13

19 that a mistake has been made.(writer s emphasis.) Constitutional Standards for Revocation Hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) adopted the standards for a parole revocation established in the case of Morrissey v. Brewer, 408 U.S. 471,487, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972). Those standard are (a) written notice of the claimed violations; (b) disclosure of the evidence against him; (c) an opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross examine adverse witnesses; (e) a neutral and detached hearing body; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revocation. PROPOSITION THREE A Prisoner Is Denied Fundamental Fairness and Due Process of Law and a Guilty Plea Should Be Set Aside Where He Is Not Given Advice That Any Sentence He May Serve Is Day for Day. Smith swears that he did not know that his time was day for day until he arrived at the penitentiary when the first revocation hearing resulted in him having to serve the one year sentence there imposed day for day. An evidentiary hearing should have been held on this issue since it is not shown beyond a reasonable doubt that he could not prove the same. See authorities cited above as to standard for determining whether an evidentiary hearing should be provided. CONCLUSION Antonio Vashon Smith respectfully submits the Court should conclude that the order revoking his post release supervision and imposing the suspended sentence should be reversed and rendered. In the alternative he urges the Court to reverse and order a full evidentiary hearing on all matters raised in his PCCR. RESPECTFULLY SUBMITTED, s/james A. Williams James A. Williams, MSB 7270 Attorney for Appellant 14

20 CERTIFICATE OF SERVICE I, the undersigned James A. Williams, counsel for the Appellant, in the above styled and numbered cause, do hereby certify that a true and correct copy of the above and foregoing Brief of Appellant has been mailed by United States Mail, postage prepaid to the following: Honorable Lester F. Williamson, Jr. Honorable Bilbo Mitchell Circuit Judge District Attorney P.O. Box 1002 P.O. Box 5163 Meridian, Mississippi Meridian, Mississippi and do hereby certify that I have this date electronically filed the foregoing Brief of Appellant with the Clerk of the Court using the MEC system, which sent notification of such filing to the following: Honorable Jim Hood Attorney General Post Office Box 220 Jackson, Mississippi Done this the 24th day of November, s/james A. Williams James A. Williams MSB # 7270 Attorney for Appellant Post Office Box 5002 Meridian, Mississippi Telephone: (601)