E-Filed Document Mar 13 2017 09:59:29 2015-CP-01388-COA Pages: 17 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DANA EASTERLING APPELLANT VS. NO. 2015-CP-01388-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LAURA TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 9530 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 Issues.......................................................... iii Statement of the Case and Pertinent Facts............................................ 1 Summary of the Argument........................................................ 4 Argument..................................................................... 5 Conclusion................................................................... 11 Certificate of Service........................................................... 12 1
TABLE OF AUTHORITIES 2
STATEMENT OF THE ISSUES ISSUE: The State did not violate Easterling s due process rights in his probation revocation procedural process nor were his rights violated by the revocation of his post release supervision due to his arrest on multiple charges and subsequent indictment for two charges, possession of cocaine with intent to sell and possession of methamphetamine with intent to sell. 3
STATEMENT OF THE CASE AND PERTINENT FACTS On March 7, 2007, a Simpson County Grand Jury indicted Dana Easterling for one count of reckless driving and failing to follow the orders of law enforcement pursuant to Mississippi Code Annotated 97-9-72(2) (1972, as amended), and for one count of possess of a Schedule II controlled substance, to-wit: 8.0 grams of cocaine, in violation of Mississippi Code Annotated 41-29-139 (1972, as amended). On March 24, 2011, Easterling pled guilty possession of 8.0 grams of cocaine. The Honorable Richard W. McKenzie, Specially Appointed Circuit Judge, accepted Easterling s plea, adjudged him guilty, and sentenced him to a term of Fifteen (15) years under the direction and supervision of the Mississippi Department of Corrections, with Five (5) years to serve and ten (10) years post release supervision, five (5) of which were to be supervised. Easterling was given credit for time served in the Simpson County Jail. On December 27, 2013, while serving his suspended sentence and while on post-release supervision, Easterling was arrested by the Simpson Count Sheriff s Department. C.P. 16. He was charged with DUI, first offense possession of a controlled substance, possession of methamphetamine with intent to deliver, possession of crack-cocaine with intent to deliver, possession of drug paraphernalia, possession of liquor, failure to comply and resisting arrest. C.P. 16. On January 8, 2014, Field Officer Matthew Tullos filed his Affidavit alleging Violation of Post Release Supervision by Easterling for his arrest on December 27, 2013. On February 6, 2014, Field Officer Tullos caused a Warrant to be issued against Easterling for the violation of his Post Release Supervision. On July 14, 2014, Easterling filed a grievance asserting that Mississippi Code Annotated 47-7-37 (1972, as amended), which went into effect on July 1, 2014, entitled him to a revocation hearing within 21 days of his arrest. Easterling asserted that 1
because the new law required a revocation hearing within 21 days of the alleged violation, and because he had been incarcerated since December 28, 2013, his rights had been violated and that he should be returned to probation status. On September 10, 2014, Easterling was indicted by a Simpson County Grand Jury for offenses which had occurred on December 27, 2013, and for which he was arrested on December 28, 2013, as follows: Count I Possession of a schedule II controlled substance, to wit: methamphetamine, in an amount greater than 2 grams but less than 10 grams; and, Count II Possession of a schedule II controlled substance, to-wit: cocaine, in an amount greater than two grams, but less than 10 grams. C.P. 16. On September 16, 2014, the State of Mississippi filed its Petition to Revoke Post Release Supervision and to Impose Suspended Sentence, asserting that Easterling violated the terms and conditions of his post release supervision and suspended sentence. On September 17, 2014, a revocation hearing was held for Dana Easterling in Circuit Court Cause No. 2007-19K, the honorable Richard W. McKenzie, Special Judge, presiding. C.P. 12. Probation Parole Officer Matthew Tullos testified that Easterling was under his direction, control and supervision during probation. C.P. 15-16. Tullos testified that Easterling violated Condition A of his probation. C.P. 16. Easterling argued that he should have received a preliminary hearing within 72 hours of his arrest to determine whether there was reasonable cause to believe that he had violated a condition of his probation pursuant to the newly enacted House Bill 585, and that he did not receive such a hearing. C.P. 18-19. Officer Tullos testified that the provisions of House Bill 585 2
apply only to technical violations of probation such as a failed drug test or failing to report. C.P. 17-18. Officer Tullos testified that DUI and felony charges are not technical violations, but are instead considered new crimes. C.P. 18. Easterling argued that the provision of House Bill 585 did pertain to him and that MDOC was in violation of holding him past the 21-day rule. C.P. 21. On August 1, 2014, Easterling signed an agreed order of continuance to delay his revocation hearing. C.P. 23. The trial judge took judicial notice of the fact that there was an Agreed Order of Continuance signed by Easterling. C.P. 26. The trial court revoked Easterling s post release supervision and sentenced him to serve the remaining 10 years of his term. Tr. 30. Aggrieved, Easterling filed a Motion for Post Conviction Collateral Relief. On April 15, 2015, a hearing was held in Smith County Circuit Court on Easterling s Motion for Post Conviction Collateral Relief, the honorable Richard W. McKenzie, presiding. Easterling argued to the trial court that Mississippi Code Annotated 47-4-37 (July 1, 2014), applied to his case and that because he was held for more than 21 days without a revocation hearing, he should be released from custody and returned to probation. Tr. 1-3. Easterling further argued that under Mississippi Code Annotated 47-4-37(10) (July 1, 2014), because a hearing was not held within 30 days of the warrant being issued, his revocation charged should have been dismissed. Tr. 3. After a hearing on Easterling s Motion for Post Conviction Collateral Relief, the trial court overruled the motion and denied relief in all particulars. Aggrieved of this ruling, Easterling filed the instant appeal. Tr. 20. 3
SUMMARY OF THE ARGUMENT The State did not violate Easterling s due process rights in his probation revocation procedural process nor were his rights violated by the revocation of his post release supervision due to his arrest on multiple charges and subsequent indictment for two charges, possession of cocaine with intent to sell and possession of methamphetamine with intent to sell. The State did not violate Easterling s due process rights in his probation revocation procedural process. 47-7-3.3 does not apply to Easterling and his due process rights have not been violated by the State s failure to hold a preliminary hearing in the first 72 hours or to hold a Revocation hearing in the first 21 days. Indeed, there was no requirement for those procedures when Easterling violated his post release supervision. Easterling was arrested on December 27, 2013. A Revocation Petition was filed in January of 2013 and the Circuit Court issued a warrant on January 27, 2014. House Bill 585 went into effect on July 1, 2014. The Mississippi Supreme Court held that the provisions of House Bill 585 do not apply retroactively. Further, Easterling asked for a continuance of his Revocation Hearing after the law went into effect on July 1, 2014, thus waiving any rights to challenge the timeliness of the revocation hearing. Further, the provisions of HB 585 apply to technical violations of probation, parole or post release supervision. Easterling was arrested on new felony charges of possession with intent of Schedule II drugs cocaine and methamphetamine. This issue is without merit and the trial court s denial of Easterling s Motion for Post-Conviction Collateral Relief should be affirmed. 4
ARGUMENT ISSUE: The State did not violate Easterling s due process rights in his probation revocation procedural process nor were his rights violated by the revocation of his post release supervision due to his arrest on multiple charges and subsequent indictment for two charges, possession of cocaine with intent to sell and possession of methamphetamine with intent to sell. Easterling alleges that because the State did not hold a revocation hearing within 21 days of his incarceration pursuant to the provisions of HB 585, he should therefore be released from custody and returned to probation status. He further alleges that the State violated his rights by failing to hold an informal preliminary hearing within seventy-two (72) hours of his arrest pursuant to HB 585 to determine whether there was reasonable cause to believe that he had violated a condition of his probation. Easterling bases his argument on Mississippi Code Annotated 47-7-37(3) (Supp. 2014), which went into effect on July 1, 2014, and provides as follows: (3) Whenever an offender is arrested on a warrant for an alleged violation of probation as herein provided, the department shall hold an informal preliminary hearing within seventy-two (72) hours of the arrest to determine whether there is reasonable cause to believe the person has violated a condition of probation. A preliminary hearing shall not be required when the offender is not under arrest on a warrant or the offender signed a waiver of a preliminary hearing. The preliminary hearing may be conducted electronically. If reasonable cause is found, the offender may be confined no more than twenty-one (21) days from the admission to detention until a revocation hearing is held. If the revocation hearing is not held within twenty-one (21) days, the probationer shall be released from custody and returned to probation status. Easterling s was arrested on December 27, 2013, on several charges which included two felonies. The State filed its Revocation Petition in January of 2013 and the Circuit Court issued a warrant on January 27, 2014. House Bill 585 went into effect on July 1, 2014. Easterling s revocation was commenced prior to the effective date of House Bill 585, on which Easterling s 5
argument relies. House Bill 585 was not in effect during the time period covering the first 72 hours or the first 21 days after his arrest on felony charges. On December 27, 2013, while serving his suspended sentence and while on post-release supervision, Easterling was arrested by the Simpson Count Sheriff s Department. C.P. 16. He was charged with DUI, first offense possession of a controlled substance, possession of methamphetamine with intent to deliver, possession of crack-cocaine with intent to deliver, possession of drug paraphernalia, possession of liquor, failure to comply and resisting arrest. C.P. 16. On January 8, 2014, Field Officer Matthew Tullos filed his Affidavit alleging Violation of Post Release Supervision by Easterling for his arrest on December 27, 2013. On February 6, 2014, Field Officer Tullos caused a Warrant to be issued against Easterling for the violation of his Post Release Supervision. On July 14, 2014, Easterling filed a grievance asserting that Mississippi Code Annotated 47-7-37 (1972, as amended) went into effect on July 1, 2014. Easterling asserted that because the new law required a revocation hearing within 21 days of the alleged violation, and because he had been incarcerated since December 28, 2013, his rights had been violated and that he should be returned to probation status. On September 10, 2014, Easterling was indicted by a Simpson County Grand Jury for the following offenses which occurred on December 27, 2013: Count I Possession of a schedule II controlled substance, to wit: methamphetamine, in an amount greater than 2 grams but less than 10 grams; and, Count II Possession of a schedule II controlled substance, to-wit: cocaine, in an amount greater than two grams, but less than 10 grams. C.P. 16. 6
On September 16, 2014, the State of Mississippi filed its Petition to Revoke Post Release Supervision and to Impose Suspended Sentence, asserting that Easterling violated the terms and conditions of his post release supervision and suspended sentence. On September 17, 2014, a revocation hearing was held for Dana Easterling in Circuit Court Cause No. 2007-19K, the honorable Richard W. McKenzie, Special Judge, presiding. C.P. 12. Probation Parole Officer Matthew Tullos testified that Easterling was under his direction, control and supervision during probation. C.P. 15-16. Tullos testified that Easterling violated Condition A of his probation. C.P. 16. Easterling argued that he should have received a preliminary hearing within 72 hours of his arrest to determine whether there was reasonable cause to believe that he had violated a condition of his probation pursuant to the newly enacted House Bill 585, and that he did not receive such a hearing. C.P. 18-19. Officer Tullos testified that the provisions of House Bill 585 applies to technical violations of probation such as a failed drug test or failing to report. C.P. 17-18. Officer Tullos testified that DUI and felony charges are not technical violations, but are instead considered new crimes. C.P. 18. Easterling argued that the provision of House Bill 585 did pertain to him and that MDOC was in violation of holding him past the 21-day rule. C.P. 21. On August 1, Easterling signed an agreed order of continuance to delay his revocation hearing. C.P. 23. The trial judge took judicial notice of the fact that there was an Agreed Order of continuance signed by Easterling. C.P. 26. The provisions of HB 585 are not retroactive. Easterling was not entitled to the 72 hour preliminary hearing of the 21 day rule revocation hearing pursuant to Miss. Code Ann. 47-7-3.3, since he was arrested and charged with felony crimes in violation of his post release supervision prior to July 1, 2014. The Mississippi Supreme Court has held that the interpretation 7
of a statute, given by the agency chosen to administer it, should be accorded great deference. Williams v. Puckett, 624 So. 2d 496, 499 (Miss. 1993) (citation omitted). The Mississippi Court of Appeals has held that [t]here is a rebuttable presumption which favors the agency s decision and the challenging party has the burden of proving the contrary. Smith v. Wesley, 157 So. 3d 860, 861 (Miss. Ct. App. 2015) (citing Ross v. Epps, 922 So. 2d 847, 849 (Miss. Ct. App. 2006)). Reviewing courts will not disturb the decision of an administrative agency, such as MDOC, unless the decision is unsupported by substantial evidence, arbitrary or capricious, beyond the agency s scope or powers, or violative of the constitutional or statutory rights of the aggrieved party. Id. (citing Taylor v. Petrie, 41 So. 3d 724, 727 (Miss. Ct. App. 2010) (quoting Edwards v. Booker, 796 So. 2d 991, 994 (Miss. 2001)). Furthermore, if MDOC erroneously interprets a statute, the error should be corrected by the legislature. Williams, 624 So.2d at 499. However, MDOC has not misinterpreted the statutes at issue in this case. Miss. Code Ann. 47-7-3.3 was added as a new statutory section with the passage of HB 585, which shall take effect and be in force from and after July 1, 2014. The Mississippi Supreme Court ruled in Rochell v. State of Mississippi, 2015-CP-01151- SCT (Miss. 2016): [S]tatutes will be applied prospectively, unless the statute clearly provides that it is retroactive With this standard in mind, we see no plain declaration or clearly expressed intent that Section 47-7-18 applies retroactively. On the contrary, we note at least four other indicators that show the Legislature did not intend that section to apply retroactively. First, as noted by the trial judge, Section 47-7-3.1(2) states that [w]ithin ninety (90) days of admission, the department shall complete a case plan on all inmates.... Miss. Code Ann. 47-7-3.1 (Rev. 2015) (emphasis added). Clearly, that statutory requirement cannot be satisfied in Rochell s case, as he was admitted to the MDOC s custody in 1994. Also, the Mississippi Supreme Court in Marshall Fisher v. Michael Drankus, 204 So.2d 1232, 8
1236 (Miss. 2016) held that because Miss. Code Ann. 47-7-3.1 does not clearly and unequivocally express an intention for retroactive applicability, we cannot say that 47-7-3.1 and the case plan, presumptive parole, set-off, or corrective action applies to Drankus. Therefore, applying the same analysis, 47-7-3.3 does not apply to Easterling and his due process rights have not been violated by the State s failure to hold a preliminary hearing in the first 72 hours or to hold a Revocation hearing in the first 21 days. Indeed, there was no requirement for those procedures when Easterling violated his post release supervision. Further, Easterling asked for a continuance of his Revocation Hearing after the law went into effect on July 1, 2014. Further, Easterling was not being held on a technical violation of his post-release supervision, such as failing to report. Easterling was being held on new felony charges and the indictment process was going forward on those charges. Technical violation is defined as an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer. Miss.Code Ann. 47 7 2(q) (Rev.2015). HB 585 addresses technical violations and does not prohibit or add requirements to the process of revocation for new felonies. Even assuming arguendo that HB 585 is retroactive for purposes of the 21 day rule, it does not affect Easterling s case, because notwithstanding any other laws, including the 21 day requirement, the judge can still revoke probation for these two violations, absconding or commission of a felony. Pursuant to Mississippi Code Annotated 47-7-29 (1972, as amended), any prisoner who commits a felony while at large upon parole or earned-release supervision and who is convicted and sentenced thereof shall be required to serve such sentence after the original sentence has expired. Therefore, they did not even need to have a parole revocation hearing 9
much less follow the 21 days. Further, Mississippi Code Annotated 47-7-37.1 states that notwithstanding any other provision of law to the contrary, if a court finds by a preponderance of the evidence, that a probationer or a person under post-release supervision has committed a felony or absconded, the court may revoke his probation and impose any or all of the sentence. This issue is without merit and the trial court s denial of Easterling s Motion for Post- Conviction Collateral Relief should be affirmed. 10
CONCLUSION This assignments of error presented by the Appellant are without merit and the trial court s dismissal of Easterling s Petition for Post-Conviction Collateral Relief should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI BY: s/ Laura H. Tedder Laura H. Tedder, MSB # 9530 Special Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 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 Richard W. McKenzie Special Circuit Court Judge, 13 th District P.O. Box 1403 Hattiesburg, MS 39403 Honorable Wendell James Office of the District Attorney Simpson County Courthouse, Third Floor Mendenhall, Mississippi 39114 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Dana Easterling, # 121110 Choctaw County Jail 122 Jail House Road Ackerman, MS 39738 This the 13 th day of March, 2017. OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi 39205-0220 Telephone: (601) 359-3680 s/laura Tedder LAURA TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL 12
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