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

Transcription

1 E-Filed Document Oct :04: CP COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI COURTNEY ELKINS APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS 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 FACTS SUMMARY OF THE ARGUMENT ARGUMENT THE TRIAL COURT USED THE CORRECT LEGAL STANDARD AND APPLIED IT TO THE FACTS IN FINDING THAT THE PAROLE BOARD, AT THE TIME OF THE REVOCATION, HAD EVIDENCE SUFFICIENT TO SUPPORT THAT IT WAS MORE LIKELY THAN NOT ELKINS VIOLATED HIS PAROLE CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES STATE CASES Brown v. State, 864 So.2d 1058 (Miss. Ct. App. 2004) Elkins v. State, 116 So. 3d 185 (Miss. Ct. App. 2013) , 4 Hardin v. State, 878 So.2d 111 (Miss. Ct. App. 2003) Moore v. State, 587 So.2d 1193 (Miss. 1991) Morris v. State, 66 So.3d 716 (Miss. Ct. App. 2011) , 5 People v. Totzke, 362 Ill.Dec. 887, 974 N.E.2d 408 (Ill. App. Ct. 2012) Wheeler v. State, 164 So. 3d 501 (Miss. Ct. App. 2015) Williams v. State, 167 So. 3d 252 (Miss. Ct. App. 2015) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI COURTNEY ELKINS APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE 2. On February 17, 1995, Elkins pled guilty in the Sunflower County Circuit Court to murder and was sentenced to life imprisonment. Twelve years later, the Mississippi Parole Board granted Elkins conditional parole and allowed him to relocate to Chicago, Illinois. 3. While in Chicago, Elkins was arrested on June 4, 2009, and charged with domestic battery, after he allegedly pushed down his girlfriend. Upon learning of his arrest, a preliminary parole hearing was held in Illinois to determine whether there was probable cause that Elkins had violated the conditions of his parole. The hearing officer concluded there was probable cause and recommended a parole-violation hearing be conducted. But two days later, on June 19, 2009, the Chicago Police Department dismissed by a nolle prosequi (or nol-prossed ) the domestic-battery charge against Elkins. 4. In August 2009, Elkins was extradited to Mississippi. Elkins waived his right to a preliminary parole-revocation hearing and requested he be returned to custody for a final parole-revocation hearing before the Mississippi Parole Board. Though the Illinois charge had been nol-prossed months earlier, and the purported victim provided the Board an affidavit in which she recanted the battery allegation, the Board revoked Elkins's parole on November 4, As a result, Elkins was sent back to prison for life. 5. Elkins filed a PCR motion on April 29, 2011, alleging his parole had been unlawfully revoked. The trial court summarily dismissed Elkins's PCR motion without conducting a hearing. Elkins now appeals Because it appears the Board relied solely on what amounts to a dismissed arrest when finding it more likely than not that Elkins violated a condition of his 1

5 parole, precedent dictates that we reverse and remand this case for an evidentiary hearing consistent with the law and this opinion. Elkins v. State, 116 So. 3d 185, (Miss. Ct. App. 2013). In August of 2013, an evidentiary hearing was held in the Circuit Court of Sunflower County. (Transcript part of this appellate record). On November 1, 2013, the trial court issued an order denying the motion for post-conviction relief and dismissing it with prejudice. (C.p.8-13). It is from that final order that petitioner Elkins timely filed his notice of appeal. STATEMENT OF FACTS At the hearing in Circuit Court the trial court heard testimony from an individual present at the parole revocation hearing. Within that testimony the Court heard evidence the Parole Board had heard Elkins admit to a domestic violence act and to another violent act by admitting to stabbing his father in an argument. Additionally, documentary evidence was admitted showing what the parole board had considered in their deliberation, before revoking Elkins s parole. (Tr ). After consideration of that testimony, the trial judge made findings of fact and conclusion of law supporting the position that the Parole Board had legally sufficient evidence that it was more likely than not, petitioner Elkins did violate his parole. SUMMARY OF THE ARGUMENT THE TRIAL COURT USED THE CORRECT LEGAL STANDARD AND APPLIED IT TO THE FACTS IN FINDING THAT THE PAROLE BOARD, AT THE TIME OF THE REVOCATION HAD EVIDENCE SUFFICIENT TO SUPPORT THAT IT WAS MORE LIKELY THAN NOT ELKINS VIOLATED HIS PAROLE. After the Appellate Court of the State of Mississippi remanded this case back to the trial court, the lower Court held an evidentiary hearing, obtained additional evidence and testimony and found, as required by the opinion of the Appellate Court that the Parole Board did, at the time of the 2

6 Revocation Hearing, have evidence beyond the mere arrest of Elkins, to support the Parole Revocation. ARGUMENT THE TRIAL COURT USED THE CORRECT LEGAL STANDARD AND APPLIED IT TO THE FACTS IN FINDING THAT THE PAROLE BOARD, AT THE TIME OF THE REVOCATION, HAD EVIDENCE SUFFICIENT TO SUPPORT THAT IT WAS MORE LIKELY THAN NOT ELKINS VIOLATED HIS PAROLE. 12. While there is much uncertainty about the specific evidence the State presented to the Board, we do know the June 4, 2009 battery charge was nol-prossed in Illinois months before the final revocation hearing. In Illinois, when the State moves for a nolle prosequi, the State formally indicates that it is unwilling to prosecute the case. People v. Totzke, 362 Ill. Dec. 887, 974 N.E.2d 408, 413 ( 23) (Ill. App. Ct.2012). This action has the same effect as moving to dismiss. Id.2 So Elkins was obviously never convicted of battery while on parole. Still, we emphasize that based on the lower evidentiary standard applicable in revocation hearings, a dismissal, acquittal, or nolle prosequi of criminal charges does not per se preclude parole revocation stemming from the acts constituting the same charge. See Moore, 556 So.2d at But our supreme court has been emphatic that when the underlying charges are dismissed before a revocation hearing occurs, proof of the arrest alone is insufficient to prove that the defendant committed the act that violated the parole condition. Id. at And this court has held that even if criminal charges are not dismissed, [t]he mere arrest of a probationer is not a violation of probation. Brown v. State, 864 So.2d 1058, 1060 ( 9) (Miss. Ct. App. 2004) (citing Moore v. State, 587 So.2d 1193, 1194 (Miss. 1991)). 13. We recognize the Illinois authorities likely nol-prossed the battery charge after it became apparent Elkins was headed back to Mississippi for parole-revocation proceedings. However, our supreme court instructs that when there is an acquittal or dismissal of the underlying criminal charges, prior to completion of the revocation hearing, the State must offer actual proof that [the petitioner] committed an act violating the terms and conditions of his parole, and the mere fact that he was arrested and charged with a crime may hardly suffice. Morris v. State, 66 So.3d 716, ( 17) (Miss. Ct. App. 2011) (quoting Moore, 556 So.2d at 1062); cf. also Hardin v. State, 878 So.2d 111, 112 ( 3) (Miss. Ct. App. 2003) (holding probation revocation requires State to show more likely than not terms of probation were violated). Because Illinois views a nol-prossed arrest as a dismissal, we find Moore's reasoning also applies here. See Moore, 556 So.2d at While there is no record evidence detailing what proof the Board actually relied on other than the dismissed charge, the trial judge summarily dismissed the PCR motion without an evidentiary hearing, finding that the State had clearly proven Elkins had violated his 3

7 parole. Thus, we found it prudent to determine whether the record before this court differed from that before the trial judge. So we requested that the circuit court supplement the record with a transcript from Elkins's parole-revocation hearing the hearing during which the State had to prove by a preponderance of the evidence that Elkins had violated his parole. We also ordered the circuit court to provide any other documents [it] relied upon... in denying Elkins's petition for post [-]conviction relief. But the circuit court did not possess a transcript of the Mississippi Parole Board's revocation hearing because the hearing was not recorded. Nor did the circuit court respond with any other documentary evidence it may have relied on in denying Elkins's PCR motion. Elkins v. State, 116 So. 3d 185, (Miss. Ct. App. 2013). Based upon the clear opinion of the Court of Appeals, the trial Court held an evidentiary hearing and issued an order with comprehensive findings of fact and conclusions of law. (Order denying and dismissing, c.p.8-16). It is clear from the transcript that the Parole board, at the time of the hearing, had information beyond knowledge of Elkin s arrests (plural) and considered same at the revocation and upon which they based their decision. Petitioner Elkin s continues to operate on the misapprehension that having a charge dismissed means it may not be used for other purposes. First to counter Elkin s present argument, dismissal of a charge does not involve double jeopardy. The facts of the arrest (or even his admissions) may be used for parole revocation purposes. This Court has held: Dismissal of a charge or even a nolle-prosequi of a charge does not implicate double jeopardy. Williams v. State, 167 So. 3d 252 (Miss. Ct. App. 2015). The trial court in fulfillment of the opinion of the Court of Appeals of the State of Mississippi held the required evidentiary hearing in order to determine the evidentiary basis for the Parole Board s revocation. All the trial court was required to do was determine if the Parole Board had sufficient evidence at the time of the revocation hearing that the State had proved that it was more 4

8 likely than not petitioner Elkins had committed an act in violation of his parole. (Order denying & dismissing, 42). 8. A [trial] court's denial of post-conviction relief will not be reversed absent a finding that the court's decision was clearly erroneous. However, when issues of law are raised, the proper standard of review is de novo. Morris v. State, 66 So.3d 716, 719 ( 13) (Miss. Ct. App. 2011) (footnote and citations omitted). Wheeler v. State, 164 So. 3d 501, 504 (Miss. Ct. App. 2015). The State would ask this Court to affirm the trial court s findings and conclusions of law in fulfilling the mandate of this court in Elkins, supra ( 13-15) CONCLUSION Based upon the previous ruling of this Court and the present record on appeal supporting the trial court order dismissing and denying the post-conviction petition, the State would ask this Court to affirm the trial denial of post-conviction relief. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) BY: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

9 CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, hereby certify that on this day I electronically filed 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: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 13th day of October, Honorable Richard A. Smith Circuit Court Judge P.O. Box Greenwood, MS Honorable Dewayne Richardson District Attorney P.O. Box 426 Greenville, MS Courtney Elkins, Pro Se, #35270 MSP P.O. Box 1057 Parchman, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 6