IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA-0547 STATE OF MISSISSIPPI SUPPLEMENTAL BRIEF FOR THE APPELLEE

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1 E-Filed Document Nov :15: CT SCT Pages: 11 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI MILTON TROTTER APPELLANT VS. NO CA-0547 STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL 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 STATEMENT OF THE FACTS ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) th Scales v. Mississippi Parole Board, 831 F.2d 565 (5 Cir. 1987) State Cases Cotton v. Mississippi Parole Board, 863 So.2d 917 (Miss.2003) , 6 Holloway v. State, 31 So.3d 656 ((Miss.App Smith v. State, 118 So.3d, 180, 182 (Miss.App.2013) Trotter v. State, No CA COA, Dec. Nov. 4, 2014, rehearing Denied June 16, Vice v. State, 679 So.2d 205 (Miss.1996) Williams v. State, 522 So.2d 201 (Miss.1988) State Statutes Miss. Code Ann. Section Miss. Code Ann. Section ii

4 SUPPLEMENTAL BRIEF This is a supplemental brief filed pursuant to a grant of certiorari by the Mississippi Supreme Court. STATEMENT OF THE CASE COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT Milton Trotter entered a plea of guilty to murder on October 19, The Circuit Court of Lauderdale County sentenced Trotter to a term of life in the Mississippi Department of Corrections at Parchman, Mississippi. The sentencing order said that Trotter would allowed to serve his sentence concurrently with his federal sentence for kidnaping which was to be served in the federal prison system. R.E. 11. Trotter filed a motion for post-conviction collateral relief on Aril 11, 2012 in the Circuit court of Lauderdale County, Mississippi. The Circuit Court denied relief. The Mississippi Court of Appeals affirmed the denial of post-conviction relief on October 4, The Mississippi Supreme Court granted certiorari on October 22, STATEMENT OF THE FACTS On January 24, 1981, Milton Trotter and three others kidnaped Gail Allen in Lauderdale County, Mississippi, and stole the car belonging to Gail Allen s father. They drove to New Orleans, Louisiana, and then they returned to Mississippi and stayed in a motel. While they were in the hotel they choked and killed Gail Allen. R.E. 21, Trotter was convicted of kidnaping in the United States District Court and entered a plea of guilty to murder less than capital in the Circuit Court of Lauderdale County, Mississippi. Both the United States District Court and the Circuit Court of Lauderdale County sentenced Trotter to terms of life for each of his crimes. 1

5 Trotter s sentencing order in Lauderdale County Circuit Court said that Trotter was... sentenced to a term of life in the Mississippi State Penitentiary at Parchman, Mississippi, and said sentence to run concurrent with the life sentence of the United States Federal Court, Southern District of the State of Mississippi and defendant be allowed to serve said sentence in the Federal Penitentiary. R.E. 19. The federal Memorandum of Understanding said that it was understood that Charles Wright, the District Attorney, said that if, Trotter entered a plea of guilty to the murder of Gail Allen, he would recommend that... Trotter be sentenced to life imprisonment to run concurrent with the sentence imposed herein in E (N), and the Trotter shall serve his federal sentence. R.E. 21. SUMMARY OF THE ARGUMENT Trotter claims the State breached its promise to grant him parole or otherwise release him when the federal justice system released him from incarceration for his life sentence for kidnaping. He argues that he should be released or granted an evidentiary hearing. The appellate record does not support a finding that the State promised Trotter parole or release from his state court sentence for murder if the federal justice system released him from his incarceration for kidnaping. Even if it there were some evidentiary support for that finding, parole is a matter grace and is strictly in the discretion of the Parole Board. The Circuit Court has no authority to make an enforceable promise of parole. Trotter has not met his burden of showing the record supports his claim that he is entitled to relief. ARGUMENT Milton Trotter claims that the trial court erred when it denied his action for post- 2

6 conviction-collateral relief. Trotter sought to have his 1981 conviction for the murder Gail Allen vacated. Trotter argues that he entered into an agreement to plead guilty to the murder and the State agreed to recommend that he be sentenced to a term of life, and... he would serve that sentence in the federal penitentiary where he already received a life sentence for the kidnaping crime associated with the murder. Appellant s Petition For Certiorari, Page 1. Trotter s claim is based upon his allegation that the State promised through the agreement that... once he served the required portion of the Federal kidnaping life sentence, then he would have served the required portion of the Mississippi life sentence. He claims he should be released on parole or his plea of guilty should be set aside. Appellant s Petition, Page 1, 3. Trotter claims the State breached the agreement because, after the federal government paroled Trotter, Trotter was returned to the Mississippi Department of Corrections and the Mississippi Parole Board denied Trotter s request for parole. Trotter claims the supporting affidavits given by his co-defendants require an evidentiary hearing. The record does not support a finding that the State promised that Trotter would be given parole from his state sentence for murder when and if the federal government granted him parole from his sentence from the United States District Court. The record does support a finding that the Circuit Court of Lauderdale County ordered that his life sentence run concurrent with his federal sentence. That meant that Trotter would receive credit toward his life sentence while he was serving his life sentence for his kidnaping conviction in the United States District Court. The record also supports a finding that the Lauderdale County Circuit Court ordered that he serve his life sentence for murder... in the Mississippi State Penitentiary at Parchman, Mississippi, and said sentence to run concurrent with the life sentence of the United States Federal Court, Southern District of the State of Mississippi and defendant be allowed to serve 3

7 said sentence in the Federal Penitentiary. R.E. 19. The court agreed to let Trotter serve his time concurrently in the Federal Penitentiary. When there was no more federal term of incarceration, there was no more federal time in the federal penitentiary. That says nothing about Trotter being paroled or otherwise released from state custody when the federal justice system gave him parole. STANDARD OF REVIEW The Mississippi Court of Appeals used the correct standard of review. The Court said, we will not disturb the circuit court's factual findings unless they are clearly erroneous. Smith v. State, 118 So.3d 180, 182 ( 6) (Miss.Ct.App.2013) (citing Holloway v. State, 31 So.3d 656, 657 ( 5) (Miss.Ct.App.2010)). We review questions of law de novo. Id. Trotter, Id., 5. Mississippi law is unmistakably clear that the PCR movant bears the burden of presenting a record which is sufficient to undergird his assignments of error. Williams v. State, 522 So.2d 201, 209 (Miss.1988). FACTS The State of Mississippi agreed to recommend... said sentence to run concurrent with the life sentence of the United States Federal Court, Southern District of the State of Mississippi and defendant be allowed to serve said sentence in the Federal Penitentiary. R.E. 19. The State made that recommendation and the Circuit Court of Lauderdale County ordered... said sentence to run concurrent with the life sentence of the United States Federal Court, Southern District of the State of Mississippi and defendant be allowed to serve said sentence in the Federal Penitentiary. R.E. 19. There is nothing in the record that says that once Trotter is released from federal custody, 4

8 on parole or otherwise, that he will be released from state custody as well. There is nothing in the record that says that Milton Trotter will be given parole by the Mississippi Parole Board upon being released on parole by the federal government. Trotter claims in his affidavit that he has attached plea petitions of one of his codefendants that says all time will be served in federal custody, while the other co-defendant s plea petition says her time will be served in federal custody. He argues the affidavit or affidavits are sufficient to grant him an evidentiary hearing. LAW The Parole Board has the exclusive authority to grant or deny parole. Cotton v. Mississippi Parole Board, 863 So.2d 917, 921 (Miss.2003). In Mississippi, the absolute discretion conferred on the Parole Board affords a prisoner no constitutionally recognized liberty interest. Cotton, Id., citing Scales v. Mississippi Parole th Board, 831 F.2d 565 (5 Cir. 1987). Even assuming arguendo there was some evidence in the record to support Vice's assertion that he was promised parole, there is no basis in law for his argument that the Parole Board violated the plea agreement by not granting him parole in 1991 or Miss. Code Ann. Section , coupled with Section , place matters of parole within the discretion of the Parole Board. The United States Supreme Court, in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), held that while maintenance of a parole system does not, in and of itself, create a protected interest in parole, one exists only where mandatory language creates a presumption of entitlement to parole once certain objective criteria are met. However, because the Mississippi parole statutes contain no such mandatory language, employing the permissive may rather than shall, prisoners have no constitutionally 5

9 recognized liberty interest in parole. Vice v. State, 679 So.2d 205, 208 (Miss.1996). NEITHER THE RECORD NOR THE LAW SUPPORT TROTTER S CLAIMS THAT HE WAS PROMISED AND ENTITLED TO PAROLE. As noted above, the appellate record does not support a finding that the State or the Circuit Court promised Trotter that he would be paroled from his State life sentence or otherwise released when he was paroled from his federal life sentence for kidnaping. The Court of Appeals correctly described Trotter s argument as follows, What Trotter is trying to do is stretch the circuit judge's courtesy of allowing him to serve his concurrent state sentence in a federal correctional institution into some sort of promise that he must immediately be granted state parole if he is ever paroled in the federal system. Trotter v. State, No CA COA, Dec. Nov. 4, 2014, rehearing Denied June 16, The principles found in Vice and Cotton above are helpful in analyzing Trotter s claim. The matter of parole is strictly in the discretion of the Mississippi Parole Board. There is no liberty interest in parole in Mississippi. By saying both that Trotter shall serve his term in the Mississippi Department of Corrections in Parchman, Mississippi and that the term shall run concurrent and Trotter will be allowed to serve his time in the federal penitentiary, the court order anticipates that the two periods of incarceration may not overlap perfectly. According to Trotter s argument, if the federal government had set aside Trotter s conviction six months after sentencing, the service of his life sentence for murder in State court would have terminated, and he would be entitled to parole. Trotter has not met his burden of showing in the record that he is entitled to relief. 6

10 CONCLUSION The State asks this court to deny relief and affirm the order of the Lauderdale County 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)

11 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 Walter Bailey Circuit Court Judge Post Office Box 1167 Meridian, Mississippi Honorable E. J. (Bilbo) Mitchell District Attorney Post Office Box 5172 Meridian, Mississippi James A. Williams, Esquire Attorney At Law Post Office Box 5002 Meridian, Mississippi This the 2nd day of November, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 8