IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Feb :24: CP COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RICKY EUGENE JOHNSON APPELLANT vs. VS. NO.2015-CP ST ATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JOE HEMLEBEN 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... 1 STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 CONCLUSION... 7 CERTIFICATE OF SERVICE.... 9

3 TABLE OF AUTHORITIES State Cases Braziel v. Bailey, 835 So. 2d 962 (Miss. Ct. App. 2003)... 5 Carlisle v. State, 936 So. 2d 415 (Miss. Ct. App. 2006)... 6 Crosby v. State, 16 So. 3d 74 (Miss. Ct. App. 2009)... 6 Johnson v. State, 909 So. 2d 1149 (Miss. Ct. App. 2005)... 6 Judge v. State, 933 So. 2d 1012 (Miss. Ct. App. 2006)...,... 6 Magee v. State, 166 So. 3d 528 (Miss. Ct. App. 2014)... 4 McGovern v. Mississippi Dept. o/corrections, 89 So. 3d 69 (Miss. Ct. App. 2011)... 5 Rigdon v. State, 126 So.3d 931 (Miss. Ct. App. 2013)... 7 Ross v. Epps, 922 So.2d 847 (Miss. Ct. App. 2006)... 4 Statutes Mississippi Code Annotated ,4 Mississippi Code Annotated , 5 Mississippi Code Annotated ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RICKY EUGENE JOHNSON APPELLANT VS. NO. 201S-CP-007S8 ST ATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT CASE This appeal stems from the Marion County Circuit Court's denial of Ricky Eugene Johnson's motion to correct in which Johnson asserted that the Mississippi Department of Corrections (MDOC) incorrectly deemed him ineligible for parole, denied him earned time, and was unlawfully making him serve consecutive sentences. The trial court denied the motion, finding that the relief requested was inappropriate as Johnson was first required to seek relief through the MDOC's administrative relief program (ARP). Johnson appealed. STATEMENT OF FACTS Johnson was indicted by a Marion County grand jury on October 1, 2012, for the sale of a controlled substance. (C.P. 3). On August 1,2013, Johnson knowingly and voluntarily entered a plea of guilty in Marion County Circuit Court. (C.P. 72). Johnson was sentenced to twenty years in the custody of the MDOC, with ten years to serve and ten years of post-release supervision. (C.P. 43). On November 21,2014, Johnson filed a motion to correct in the trial court, arguing that the 1

5 MDOC: improperly altered his parole eligibility; denied him "jail time credits"; and was making him serve consecutive, rather than concurrent, sentences. 1 (C.P. 82). The trial court denied Johnson's motion. (C.P. 99). On January 30, 2015, Johnson filed an answer to the trial court's order denying his motion to correct. (C.P. 101). Johnson then filed a petition for a writ of mandamus on April 10, 2015 and a motion for clarification on April 17, (C.P. 111, 119). On April 23, 2015, the trial court, treating Johnson's answer as a motion for reconsideration, entered an order granting the motion. (C.P. 133). In its order, the trial court found that a motion to correct was the improper mechanism for the relief Johnson sought and Johnson was first required to seek relief through the MDOC's administrative review procedure. (C.P. 134). The Court further found that" [ s ]hould Johnson complete the administrative review and still be aggrieved, he may then seekjudicial review." (C.P. 134). On May 8, 2015, Johnson filed a notice of appeal. (C.P. 136). In response to Johnson's motion for clarification, the trial court entered an order on May 15, 2015, again stating that Johnson was first required to exhaust all administrative remedies through the MDOC before seeking relief in circuit court. (C.P. 143). Finding no evidence that Johnson had done so, the trial court stayed the proceedings for ninety days, affording Johnson the opportunity to exhaust the administrative review process with the MDOC and to submit evidence of same. (C.P. 143). Finally, on September 30, 2015, the Court of Appeals denied Johnson's mandamus petition. (App. Rec. 1). SUMMARY OF THE ARGUMENT The instant appeal should be dismissed for lack of jurisdiction as set forth in the State's According to Johnson, at the time of his arrest and conviction, he was on parole for a previous conviction and sentence. 2

6 motion to dismiss appeal.2 Should this Court choose to reach the merits of Johnson's claims, the State would show that the trial court's order denying Johnson's motion to correct should be affirmed. Contrary to Johnson's assertions, the MDOC's alleged act of retroactively applying statutory revisions to Mississippi Code Annotated section (Rev. 2015), did not, in fact, affect his parole eligibility because Johnson, by virtue of the nature of his conviction, was not eligible for parole pursuant to Section as it was written at the time of is indictment, conviction, and sentence. Johnson's claim that the MDOC "usurped judicial power" by sentencing him to serve consecutive sentences is likewise without merit as Johnson's consecutive sentence is in accordance with Mississippi Code Annotated section (2) (Rev. 2015), which provides "[w]hen a person is sentenced to imprisonment for a felony committed while the person was on parole... the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole... shall not run concurrently with any preceding term of imprisonment." Finally, the present record does not support Johnson's claim that he has been denied jail-time credits. In addition, that claim pertains to a conviction and sentence 3 that is not the subject of the present appeal; therefore, the claim is not properly before the Court. ARGUMENT The trial court did not err when it denied Johnson's motion to correct. Without abandoning its position that Little's appeal is not properly before the Court, the State 2 The State's motion to dismiss appeal was filed on December 28, 2015, and passed for consideration with the merits of the appeal by order dated January 28, The present appeal proceeds from Johnson's conviction and sentence in lower court cause number K However, this claim pertains to time computation for a sentence in lower court cause number K Furthermore, the time period during which the alleged error was made occurred prior to Johnson's conviction in K

7 would show that Johnson's claims are without merit, as Johnson's parole eligibility was not altered by statutory amendments and Johnson is properly serving consecutive sentences. A. Parole Eligibility Johnson asserts that amendments to Mississippi Code Annotated section (Rev. 2014) affected his parole eligibility, constituting an ex post facto violation. Johnson claims that he "deserve[ s]... to be treated under the law as it existed prior to [the] July 1,2014 [amendment] [t]hat... allowed for parole." This Court has held that "an ex post facto law is one which creates a new offense or changes the punishment, to the detriment ofthe accused, after the commission ofthe crime." Magee v. State, 166 So. 3d 528, ('1127) (Miss. Ct. App. 2014) (citing Ross v. Epps, 922 So.2d 847,849 ('115) (Miss. Ct. App. 2006)). "[T]he Ex Post Facto Clause is designed to prevent the legislature from increasing punishment beyond what was prescribed when the crime was committed." Jd. Johnson claims that amendments to Section , effective July 1,2014, changed his parole eligibility. According to Johnson, he was eligible for parole under the prior law. Johnson is incorrect. While it is true that the July 1,2014 amendments made many changes to parole eligibility under Mississippi law, these changes did not result in an ex post facto violation as pertains to Johnson, because Johnson was not eligible for parole under the prior law. Johnson's claim is the result of Johnson's misunderstanding, or misreading, of the relevant law at the time of his conviction and sentence. Johnson was indicted by the Marion County grand jury on October 1, 2012 for the sale ofa controlled substance. The indictment read, in pertinent part, "[Johnson]... did willfully, unlawfully, feloniously and knowingly sell or transfer Cocaine, a Schedule II Controlled Substance... in the amount of 1.0 gram, contrary to and in violation of Section (a)(1) of the Mississippi Code 4

8 of 1972[.]" On August 1, 2013, Johnson knowingly and voluntarily entered a plea of guilty. Johnson was sentenced to twenty years in the in the custody of the MDOC with ten years to be served in the custody of the MDOC, and ten years to be served under post-release supervision. This Court has held that a prisoner's parole eligibility is controlled by Section , as it existed at the time of conviction. Braziel v. Bailey, 835 So. 2d 962, 964 (~6) (Miss. Ct. App. 2003). At the time of Johnson's conviction, Section (1)(h) (Rev. 2011) provided, in pertinent part: No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole... For purposes of this paragraph, "nonviolent crime" means a felony other than... the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law[.] In McGovern v. Mississippi Department o/corrections, 89 So. 3d 69 (Miss. Ct. App. 2011), this Court, applying Section (1)(h), held that a defendant, convicted of selling a controlled substance, other than certain amounts of marijuana, was not eligible for parole. McGovern, 89 So. 3d at 72 (~8). Thus, Johnson is not eligible for parole pursuant to Section as it was written at the time of his conviction. Accordingly, there is no merit to Johnson's claim. B. Consecutive Sentences Johnson next claims that the MDOC "usurped judicial power" by sentencing him to serve consecutive sentences. In support of his claim, Johnson points to the order of conviction and sentence which does not explicitly state that Johnson's sentence in charge number K is to run consecutively with his prior conviction and sentence in charge number K The details of Johnson's prior conviction and sentence are not contained in the record on appeal. However, the inmate time sheet attached to appellant's brief indicates that Johnson was on parole at the time of his conviction on charge number K Mississippi Code Annotated section (2) (Rev. 2015) provides: 5

9 When a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned release supervision, post release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned release supervision, post release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. In Carlisle v. State, 936 So. 2d 415 (Miss. Ct. App. 2006), Carlisle was on five years probation for a drug offense when he was convicted of possession of marijuana with intent to distribute. Carlisle, 936 So. 2d at 417 (~1). There, this Court held that, pursuant to Section (2), "the [trial] court was prohibited from allowing Carlisle to serve his new sentence concurrently with his prior sentence." Id. at 423 (~29). See also Johnson v. State, 909 So. 2d 1149, (~7) (Miss. Ct. App. 2005) ("under Mississippi law, a convict sentenced for a crime committed while on probation is not eligible for a concurrent sentence for the second crime"); Judge v. State, 933 So. 2d 1012, (~6) (Miss. Ct. App. 2006) ("when a convicted felon is sentenced for a crime he committed while he was on supervised release for committing a previous crime, the two sentences cannot run concurrently, they must run consecutively); Crosby v. State, 16 So. 3d 74, 80 (~11) (Miss. Ct. App. 2009) ("if a convicted felon is sentenced for a crime he committed while he was on supervised release for committing a previous crime, the two sentences cannot run concurrently, they must run consecutively") (citation and internal quotation marks omitted). Thus, Johnson's consecutive sentence for a felony committed while on parole was proper. Accordingly, this issue is without merit. C. Remaining Claim Finally, Johnson claims that the MDOC has denied him jail time credits from January 26, 2013 to August 1,2014. However, this issue is not properly before this Court as Johnson's motion for PCR does not comply with the Uniform Post-Conviction Collateral Relief Act (UPCCRA), and 6

10 the relevant information necessary to address this claim is not contained in the appellate record. This appeal follows the trial court's denial of Johnson's motion to correct filed in cause number K Johnson alleges that the MDOC failed to credit him earned time accrued from January 26,2013 to August 1, 2014 while Johnson was on parole following his conviction and sentence in cause number K Thus, the alleged error in time computation occurred prior to Johnson's conviction in cause number KI2-0208, which is the subject of this appeal. Mississippi Code Annotated section (2) (Rev. 2015) provides: "A motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions." See also Rigdon v. State, 126 So.3d 931, 934 (~6) (Miss. Ct. App. 2013) (noting "Section (2) clearly limits a PCR motion to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions" (citation and internal quotation marks omitted)). Here, Johnson is clearly attempting to address issues pertaining to two separate convictions in two separate cause numbers in a single motion for PCR. As a result, there is not an adequate record before the Court pertaining to Johnson's claim that the MDOC has denied him credits. The only document that Johnson claims demonstrates the alleged denial is an inmate time sheet attached to Johnson's brief; however, this document is not a part ofthe appellate record and is not properly before this court. Therefore, this claim should be dismissed. CONCLUSION The State of Mississippi asks this Court to dismiss this appeal for lack of jurisdiction. Alternatively, the State contends that the trial court did not err in denying Johnson's motion. Based upon the arguments presented herein, as supported by the record on appeal, the State would ask this 7

11 Court to affirm the trial court's denial of Johnson's motion. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: JOE HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

12 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 Anthony Alan Mozingo Circuit Court Judge P.O. Drawer 269 Purvis, MS Honorable Hal Kittrell District Attorney 500 Courthouse Sq., Ste. 3 Columbia, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 4th day of February, Ricky Eugene Johnson, South MS Correctional Institution (SMCI) P. O. Box 1419 Leakesville, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/j oe Hemleben JOE HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL 9