E-Filed Document Jul 29 2014 14:11:45 2013-CP-00467 Pages: 13 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JOHNNY YEARBY, JR. APPELLANT VS. NO. 2013-CP-0467 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES...................................................... ii STATEMENT OF THE CASE.................................................... 1 STATEMENT OF THE FACTS................................................... 2 SUMMARY OF THE ARGUMENT......................................... 2 PROPOSITION ONE............................................... 2 PROPOSITION TWO............................................... 2 PROPOSITION THREE............................................. 2 ARGUMENT............................................................ 3 PROPOSITION ONE. WHETHER YEARBY WAS DENIED HIS RIGHT TO A PRELIMINARY HEARING TO THE CHARGE THAT HE ESCAPED FROM THE HINDS COUNTY RESTITUTION CENTER................................................... 4 PROPOSITION TWO. WHETHER YEARBY WAS DENIED A TIMELY FINAL REVOCATION HEARING..................................... 6 PROPOSITION THREE. WHETHER YEARBY WAS DENIED DUE PROCESS AT HIS FINAL REVOCATION HEARING........................... 8 CONCLUSION................................................................ 9 CERTIFICATE OF SERVICE................................................... 10 i
TABLE OF AUTHORITIES Federal Cases Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)................. 6 State Cases Anderson v. State, 89 So.3d 645 (Miss. App. 2011).................................. 7, 8 Friday v. State, No. 2012-CP-01669-COA (Miss. 2014)............................... 4, 5 Havrad v. State, 94 So.3d 229 (Miss.2012.).......................................... 6 Morrissey v. Brewer, 408 U.S. 471 (1972)......................................... 4, 5 Presley v. State, 48 So.3d 526, 530 (Miss.2010)...................................... 5 Sewell v. State, 721 So.2d 129 (Miss.1998)........................................... 5 Smith v. State, 136 So.3d 424 (Miss.2014)......................................... 5, 6 Younger v. State, 749 So.2d 219, 222 (Miss. Ct. App. 1999)............................. 8 Mississippi State Statutes M.C.A., Section 99-37-27(9)...................................................... 3. ii
STATEMENT OF THE CASE This is an appeal from an order denying reinstatement of probation from the Circuit Court of Adams County, Honorale Forrest A. Johnson presiding. COURSE AND SCOPE OF THE CASE IN THE CIRCUIT COURT Johnny Yearby, Jr., entered a plea of guilty to two counts of uttering a forgery in the Circuit Court of Adams County. The Court sentenced Yearby to two eight year terms to run concurrently with each other. The Court gave Yearby credit for time served and suspended the remaining balance of Yearby s sentence, placing him on post-release supervision. The court ordered that Yearby pay restitution and be remanded to a restitution center for payment. C.P. 20. The Circuit Court of Adams County revoked Johnny Yearby s post-release supervision on July 25, 2011. C.P. 25. On April 10, 2012, Johnny Yearby filed a Petition for Writ of Habeas Corpus/Motion to Vacate Revocation of Post-Release Supervision. C.P. 2. On July 6, 2012, the Circuit Court found that Yearby was not entitled to relief and denied and dismissed his action for Habeas Corpus. The court treated Yearby s action as a motion for post-conviction relief. C.P. 26. On October 26, 2012 Johnny Yearby filed a motion for reinstatement of probation. C.P. 49. The Circuit Court signed an order on January 28, 2013, which was entered on February 1, 2013, dismissing Yearby s Motion for Reinstatement of Probation. The Court found that the matter was not properly before the court. C.P. 58. Johnny Yearby, Jr., filed a notice of appeal... from the final judgment entered in this cause on/or about January 28, 2013,... C.P. 60. 1
STATEMENT OF THE FACTS Johnny Yearby, Jr., was indicted and charged with uttering thirteen forged checks. Yearby entered pleas of guilty to Counts II and III. Counts I and IV-XIII were retired. Yearby was placed on post-release supervision but was ordered to pay restitution and was remanded to the restitution center to make the payments. C.P. 12, 19. Yeaerby walked away from the restitution center without permission because of a dispute over the amount of money he had paid. Yearby admits in his brief that he picked up two Loritabs on the ground and gave them to a jailer. He was charged with bringing contraband into a jail. C.P. 25. SUMMARY OF THE ARGUMENT PROPOSITION ONE. Yearby claims he was denied a preliminary hearing. Johnny Yearby did not raise the issue of not having a preliminary hearing and is therefore procedurally barred. Yearby does not show that he suffered any prejudice as a result of not having a preliminary hearing. PROPOSITION TWO. Yearby claims he was denied a timely final hearing. Johnny Yearby waived the claim and is procedurally barred from raising it on appeal because he did not raise the claim at the hearing. Johnny Yearby does not explain why a forty day delay is excessive. He further does not state the prejudice which he claims to have suffered. PROPOSITION THREE. Yearby argues that the sentencing court did not have the authority to impose the condition 2
that he be sent to a restitution center, and... there was no mention of any sanction (especially revocation of post-release supervision) if he failed to complete same; He claims there was no warning of potential revocation, and the sentence was illegally imposed. He argues that walking away from the restitution center was not sufficient evidence to revoke his post-release supervision. He reasons that the violation was not severe enough to warrant revocation. The Circuit Court ordered that Johnny Yearby pay restitution. The Court also ordered as a special condition.. of Johnny Yearby s post-release supervision that he be remanded to a restitution center for payment of said amounts. C.P. 19-21. The Court ordered that Yearby be sentenced to the restitution center to pay his restitution. It was a condition of his post-release supervision. Walking away without permission before completing the restitution clearly violated the terms of Yearby s sentence. ARGUMENT Before addressing Johnny Yearby s claims individually, they are all procedurally barred because Yearby filed a filed a Petition for Writ of Habeas Corpus/Motion to Vacate Revocation of Post-Release Supervision on April 10, 2012. C.P. 2. This appeal is from an order denying relief on entered February 1, 2013. Yearby s most recent filing is a successive writ and barred pursuant to M.C.A., Section 99-37-27(9). Johnny Yearby s claims that he was denied a preliminary hearing, notice of the allegations against him, notice of the hearing, and that he was not under a condition to complete the restitution program were all decided by the Circuit Court in an order entered July 6, 2012 and are barred by the doctrine of res judicata. 3
PROPOSITION ONE. WHETHER YEARBY WAS DENIED HIS RIGHT TO A PRELIMINARY HEARING TO THE CHARGE THAT HE ESCAPED FROM THE HINDS COUNTY RESTITUTION CENTER. Johnny Yearby, Jr., claims he was denied his right to a preliminary hearing on the charge that he violated the terms of his probation when the State claimed that he escaped from the Hinds County Restitution Center on June 9, 2011. A... defendant is procedurally barred from arguing that he was denied the right to a preliminary hearing where the defendant failed to raise the issue at his formal revocation hearing. Friday v. State, No. 2012 CP 01669 COA, Decided March 4, 2014, Rehearing Denied June 24, 2014, The state does not waive the procedural bar, but the state does address the merits. Johnny Yearby, Jr., was entitled to a preliminary hearing. However, Mississippi Courts have held that the failure to hold separate hearings is not necessarily reversible error. Presley, 48 So.3d at 530 ( 14). The prisoner must show that prejudice resulted from the failure to hold a separate preliminary hearing. If no prejudice is found and a formal proceeding was held in compliance with Morrissey, then the failure to hold a preliminary hearing is harmless error. Id. The minimum due-process requirements for a formal parole-revocation hearing as set out by Morrissey are: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless 4
the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Friday, I., at 3, 13. Johnny Yearby received notice of the hearing, he knew the State charged him with walking away from the Hinds County Restitution Center, and he had the right to be heard at the hearing. Johnny Yearby does not tell us what evidence he had to rebut the allegation that he left the restitution center. Johnny Yearby does not tell us how a preliminary hearing would have allowed him to better respond to the allegations against him. It does not appear that a preliminary hearing would have mattered. The facts and evidence would be the same. Yearby suffered no prejudice as a result of the failure to have a preliminary hearing. Yearby s notice of appeal said that he was appealing from a final judgment entered on January 28, 2013. Yearby does not assert or demonstrate how the court s adjudication on June 25, 2011 affected the outcome of a judgment or order on January 28, 2013. The appellate court will not reverse a conviction unless the trial court abused its *432 discretion in a manner that was prejudicial to the accused. Sewell v. State, 721 So.2d 129, 138 (Miss.1998). Smith v. State, 136 So.3d 424, 431-432, 17 (Miss.2014). Harmless-error analysis prevents setting aside convictions for small errors or defects that 5
have little, if any, likelihood of having changed the result of the trial. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Smith v. State, 136 So.3d 424, 435 27 (Miss.2014). If the Court had violated any of Yearby s rights at the June 25, 2011 hearing, the violation did not result in any prejudice to Yearby. In essence, if the Court committed error, the error was harmless. Since Yearby was put into his original status by the June 25, 2011 hearing, it is irrelevant to the final judgment entered on January 28, 2013. PROPOSITION TWO. WHETHER YEARBY WAS DENIED A TIMELY FINAL REVOCATION HEARING. Johnny Yearby claims that he was denied a timely final revocation. He argues that the hearing was forty days after his arrest, and the delay caused him prejudice. Yearby failed to raise this claim at the hearing. He thereby waived the claim and is procedurally barred from raising it on appeal. The State does not waive the procedural bar, but the State does address the merits. Johnny Yearby does not explain why a forty day delay is excessive. He further does not state the prejudice which he claims to have suffered. In the absence of a showing of any prejudice, his claim of excessive delay has no merit. More than broad assertions of prejudice must be asserted when denial of speedy trial claims are litigated. Havard v. State, 94 So.3d 229, 237, 22 (Miss.2012.). This is not a speedy trial claim, but it is analogous since it complains of delay until hearing and says that the delay caused prejudice. The same reasoning applies. Yearby claims that he was charged with bringing contraband into the jail on July 15, 6
2011. Yearby asserts that he merely picked up two Loritabs from the ground and handed them to the jailer. Yearby argues that he was charged on July 15, 2011, seven days before the July 25, 2011 revocation hearing. Yearby reasons that, since the judge entered the order to put him back on post-release supervision on July 25, 2011, that it violated his right to due process by revoking his post-release supervision without any evidentiary support. At the July 25, 2011 hearing, the Judge asked Yearby if he had any other charges. Yearby told the Judge that he did not. At the end of the hearing the Court found that Yearby had a technical violation and ordered that Yearby be put back on post-release supervision. Tr. 4-6. Apparently before the day was over the Judge learned that Yearby did have another charge against him for bringing contraband into the jail, despite having told the Judge that he did not have any other charges. The Judge entered a written order that same day, July 25, 2011, finding that Yearby was in violation of the terms and conditions of his supervision. The Court ordered that Yearby s supervision be revoked and that Yearby should serve the remaining balance of his sentence. C.P 25. Yearby does not explain what he means by a lack of evidentiary support. He had notice of the hearing on July 25, 2011. The Court conducted the hearing, and Yearby told the Judge that he had walked off and left the Restitution Center in Hinds County. When Yearby was asked if he had any other charges, he answered falsely by saying that he did not have any other charges. He had been charged ten days before the hearing with bringing contraband into the jail. The amount of evidence must be enough to show that the defendant more likely than not violated probation. Anderson v. State, 89 So.3d 645, 653, 22 (Miss.App.2011). The evidence supported a finding that Johnny Yearby violated the conditions of his postrelease supervision. 7
PROPOSITION THREE. WHETHER YEARBY WAS DENIED DUE PROCESS AT HIS FINAL REVOCATION HEARING. Yearby argues that the sentencing court did not have the authority to impose the condition that he be sent to a restitution center, and... there was no mention of any sanction (especially revocation of post-release supervision) if he failed to complete same; He claims there was no warning of potential revocation, and the sentence was illegally imposed. He argues that walking away from the restitution center was not sufficient evidence to revoke his post-release supervision. He reasons that the violation was not severe enough to warrant revocation. The Circuit Court ordered that Johnny Yearby pay restitution. The Court also ordered as a special condition.. of Johnny Yearby s post-release supervision that he be remanded to a restitution center for payment of said amounts. C.P. 19-21. A... conviction is not necessary to revoke probation. Probation may be revoked upon a showing that the defendant more likely than not violated the terms of probation. Younger v. State, 749 So.2d 219, 222 ( 12) (Miss.Ct.App.1999) The amount of evidence must be enough to show that the defendant more likely than not violated probation. Anderson v. State, 89 So.3d 645, 653, 22 (Miss.App.2011). The evidence supported a finding that Johnny Yearby violated the conditions of his postrelease supervision. 8
CONCLUSION The State of Mississippi asks the court to affirm the order of the Circuit Court of Adams County which denied post-conviction collateral relief. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 9
CERTIFICATE OF SERVICE I 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: Honorable Forrest A. Johnson Circuit Court Judge Post Office Box 1383 Natchez, Mississippi 39121 Honorable Ronnie Harper District Attorney Post Office Box 1148 Natchez, Mississippi 39121 Johnny Yearby, Jr., #R9432 South Mississippi Correctional Institution (S.M.C.I.) Post Office Box 1419 Leakesville, Mississippi 39451 This the 29th day of July, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 10