E-Filed Document Oct 13 2015 17:12:34 2014-CP-01810-COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI AKIVA KAREEM CLARK APPELLANT VS. NO. 2014-CP-01810-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 3599 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES................................................... ii ISSUES...................................................................... 1 FACTS...................................................................... 1 SUMMARY OF THE ARGUMENT.............................................. 3 STANDARD OF REVIEW...................................................... 3 ARGUMENT................................................................. 3 I. Whether the trial court erred in violating Clark's right to a speedy sentence which is encompassed within the sixth amendment right to a speedy trial....................................................... 3 II. III. IV. Whether the trial court erred in violating Clark's First, Fifth and Fourteenth Amendment rights when imposing banishment conditions...... 5 Whether the trial court erred in giving Clark a sentence which exceeded the maximum authorized by law..................................... 6 Whether the 2005 sentencing proceeding was illegal which rendered all present proceedings illegal.......................................... 7 CONCLUSION............................................................... 8 i
TABLE OF AUTHORITIES FEDERAL CASES Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)..................... 4 STATE CASES Bell v. State, 2 So.3d 747 (Miss. Ct. App. 2009)....................................... 5 Ben v. State, 95 So.3d 1236 (Miss. 2012)............................................ 4 Carroll v. State, 120 So.3d 471 (Miss. Ct. App. 2013).................................. 4 Hughes v. State, 106 So.3d 836 (Miss. Ct. App. 2012).................................. 3 Hundley v. State, 803 So.2d 1225 (Miss. Ct. App. 2001)................................ 5 Lee v. Kelly, 34 So.3d 1203 (Miss. Ct. App. 2010)..................................... 7 Mackey v. State, 37 So. 3d 1161 (Miss. 2010)......................................... 5 Means v. State, 43 So.3d 438 (Miss. 2010)......................................... 4, 5 Miller v. State, 875 So.2d 194 (Miss. 2004).......................................... 6 Mosley v. State, 150 So.3d 127 (Miss. Ct. App. 2014).................................. 5 Purnell v. State, 126 So.3d 949 (Miss. Ct. App. 2013)................................. 3 Rigdon v. State, 126 So.3d 931 (Miss. Ct. App. 2013).................................. 5 Smith v. State, 919 So.2d 989 (Miss. Ct. App. 2005)................................... 5 Whatley v. State, 123 So.3d 461 (Miss. Ct. App.),..................................... 7 Wheeler v. State, 164 So.3d 501 (Miss. Ct. App. 2015)................................. 7 STATE STATUTES Miss. Code Ann. 47-5-803...................................................... 7 Miss. Code Ann. 97-1-1........................................................ 6 Miss. Code Ann. 97-1-5........................................................ 6 Miss. Code Ann. 97-3-5........................................................ 6 Miss. Code Ann. 97-17-70...................................................... 6 Miss. Code Ann. 99-39-9 (2).................................................. 4, 5 Miss. Code Ann. 99-39-11(2).................................................... 8 ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI AKIVA KAREEM CLARK APPELLANT VS. NO. 2014-CP-01810-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE This appeal proceeds from the partial denial of Akiva Kareem Clark s Motion for Post Conviction Collateral Relief and Motion for Records and Transcripts filed in the Circuit Court of Pike County, Mississippi. ISSUES I. Whether the trial court erred in violating Clark s right to a speedy sentence which is encompassed within the sixth amendment right to a speedy trial. II. III. IV. Whether the trial court erred in violating Clark s First, Fifth and Fourteenth Amendment rights when imposing banishment conditions. Whether the trial court erred in giving Clark a sentence which exceeded the maximum. Whether the 2005 sentencing proceeding was illegal which rendered all present proceedings illegal. FACTS In Cause No. 05-256PKS, Clark plead guilty to Accessory to Armed Robbery after the Fact and Conspiracy to Commit Armed Robbery. On July 29, 2005, Clark was sentenced to five years with three years to serve and two years suspended on post release supervision for the armed robbery charge. Clark received a consecutive five years on the conspiracy charge with two years to serve and three years on post release supervision. The first five years of the post release supervision were to 1
be served on a reporting supervision. The two sentences were to run consecutive to the sentence imposed in Cause No. 05-271. Clark was to complete his GED while in custody. The trial court ordered that Clark was not to be considered for or placed in Intensive Supervision Program or house arrest. Also, the court banned Clark from the State of Mississippi upon release from the MDOC. (CP 5; Tr. 33-34). In Cause No. 05-271PKS, Clark plead guilty to Possession of a Firearm by Convicted Felon and Possession of Stolen Property. On July 29, 2005, the trial court sentenced him to three years with two years to serve and one year on post release supervision for the firearm charge; and a consecutive ten years with three years to serve and seven years on post release supervision on the stolen property charge. The five years of post release supervision were to be reporting and supervised and the remainder non-reporting and unsupervised. For a total of 13 years post-release supervision. (Tr. 34). The court banned Clark from the State of Mississippi upon release from the MDOC. Both sentences were to run consecutive to each other and consecutive to sentence in Cause No. 05-256. (CP 9-10; Tr. 33-34). While on post release supervision, Clark was arrested and charged with the drug crimes in Cause No. 13-302 PKS. On March 4, 2014, Clark waived the filing of a formal petition of revocation being filed in Cause No. 05-256 and 05-271 and admitted to violating the terms and conditions of his probation. (Tr. 43). The trial court revoked the first three years of the suspended sentence in 05-271 and the balance of the suspended sentence in 05-256 to be served concurrently with the sentence in 13-302. (Tr. 42-44). In Cause No. 13-302PKS Clark plead guilty, on March 4, 2014, to four counts of Unlawful sale of Oxycodone, Hyromophene, Fentanly and Clonazepam respectively. (CP 13-14; Tr. 37). He was sentenced to twenty years on each count, with ten years suspended, ten years to serve and five 2
years post-release supervision. The four sentences were to run concurrent with the probation revocation in Cause No. 05-256 and cause number 05-271. Id. Clark filed for post-conviction collateral relief, which the Circuit Court of Pike County granted in part and denied in part by order entered December 12, 2014. (Tr. 259-261). Clark appealed. (CP 253). SUMMARY OF THE ARGUMENT The Circuit Court s order vacating Clark s banishment and denying the remainder of his motion for post-conviction collateral relief should be affirmed. Clark s remaining issues are without merit. STANDARD OF REVIEW When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Purnell v. State, 126 So.3d 949, 951 ( 4) (Miss. Ct. App.2013) (quoting Hughes v. State, 106 So.3d 836, 838 ( 4) (Miss. Ct. App. 2012)). ARGUMENT I. Whether the trial court erred in violating Clark's right to a speedy sentence which is encompassed within the sixth amendment right to a speedy trial. Clark was not denied a speedy trial. In his first argument, Clark claims the State violated his right to a speedy sentencing, which is a part of trial embedded in the Sixth Amendment, by failing to enforce the terms of banishment, as ordered in his sentence in cause numbers 05-271 and 05-256. The trial court, as part of his sentence in cause numbers 05-271 and 05-256, banished Clark from the State of Mississippi upon his release from MDOC. (CP 5-6, 9-10). However, the banishment was never enforced. 3
Clark plead guilty in Cause Nos. 05-256 and 05-271 on June 17, 2005; he was sentenced July 29, 2005. When Clark plead guilty he waived any speedy trial violations prior to the plea, if any. As to Clark s claim of a delay in sentencing, the supreme court cases dealing with a defendant s right to a speedy sentence deal with the imposition of a sentence, not the execution of the sentence. There was no unreasonable delay in the court imposing Clark s sentence after his guilty plea. The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other Barker factors. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Mississippi, a delay of more than eight months is considered presumptively prejudicial. Ben v. State, 95 So. 3d 1236, 1242 (Miss. 2012). In the case at bar, the short time between the June 2005 plea and July 2014 sentencing does not trigger a speedy trial violation analysis. Also, Clark s claim that the court s failure to enforce the banishment violates his rights to speedy trial is without merit. Banishment is an allowable condition of post-release supervision, provided the reason or reasons for its imposition are within acceptable parameters and made the subject of an on-the-record analysis. Carroll v. State, 120 So. 3d 471 (Miss. Ct. App. 2013). As noted by the lower court, there was no on-the-record analysis of the reasons for banishment by the sentencing court, therefore the banishment portion of Clark s sentence was vacated. See Means v. State, 43 So.3d 438, 447 ( 33) (Miss. 2010). Because the banishment was not enforced, the error was harmless. Mississippi Code Annotated section 99-39-9(2) (Supp. 2014) provides: A [PCR petition] 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. Thus, separate motion for [PCR] must be filed for each cause number or 4
conviction. Rigdon v. State, 126 So.3d 931, 934 ( 6) (Miss. Ct. App. 2013) (quoting Bell v. State, 2 So.3d 747, 749 ( 5) (Miss. Ct. App. 2009)). This rule applies even when, as [here], the multiple convictions were imposed in the same plea hearing and sentencing order. Id. See also Hundley v. State, 803 So.2d 1225, 1229 ( 9) (Miss. Ct. App. 2001) (noting that section 99-39-9(2) requires separate PCR petitions to attack guilty pleas in two different cause numbers, even though the pleas were taken in the same hearing). Mosley v. State, 150 So. 3d 127, 130 (Miss. Ct. App. 2014) cert. dismissed, 158 So. 3d 1153 (Miss. 2015). In his PCR, Clark specified all three file numbers. Each file number represents a separate judgment. Clark is unable to collaterally attack all three judgments in the same PCR. Miss. Code Ann. 99-39-9(2) (Supp. 2004). Therefore, Clark's PCR was necessarily limited to a single judgment. The State considers the judgment in Cause No. 05-256 as that collaterally attacked. Smith v. State, 919 So. 2d 989, 992 (Miss. Ct. App. 2005). Without waiving the procedural bar the State will address the merits of the remaining issues. II. Whether the trial court erred in violating Clark's First, Fifth and Fourteenth Amendment rights when imposing banishment conditions. By order entered December 14, 2014, the Circuit Court properly vacated the banishment portion of Clark s sentence in cause numbers 05-256 and 05-271. When a trial judge suspends all or part of a criminal defendant's sentence, the judge is free to impose lawful, reasonable conditions which must be met during the period of the suspended sentence. Mackey v. State, 37 So. 3d 1161 (Miss. 2010). In Means v. State, 43 So.3d 438, 447 ( 33) (Miss.2010), the Supreme Court stated that banishment is an allowable condition of post-release supervision provided the reason or reasons for its imposition are within acceptable parameters and made the subject of an on-the-record analysis. 5
The sentencing court did not make an on-the-record analysis, in cause numbers 05-256 and 05-271, of the reasons for Clark s banishment from the State of Mississippi. Therefore the banishment portion of Clark's sentence was invalid and was properly vacated by the Circuit Court. III. Whether the trial court erred in giving Clark a sentence which exceeded the maximum authorized by law. Clark claims the trial court exceeded the maximum sentence allowed by statute when it revoked his suspended sentence in cause numbers 05-256 and 05-271. In Cause No. 256, at the time of the crime, the maximum sentence for accessory, Miss. Code Ann. 97-1-5, was five years, and the maximum sentence for conspiracy, Miss. Code Ann. 97-1-1, was five years. In Cause No. 05-271, the maximum sentence for possession of the firearm, Miss. Code Ann. 97-3-5, was three years and the maximum sentence for possession of stolen property, Miss. Code Ann. 97-17-70, was ten years. Clark received the maximum sentence on each case. Section 47-7-34 states inter alia that the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. While the statute unquestionably limits to five years the period of time that the MDOC may supervise an offender who is on post-release supervision, the clear language of the statute does not limit the total number of years of post-release supervision to five years. Miller v. State, 875 So. 2d 194, 199 (Miss. 2004). The sentences in 05-256, 05-271 and 13-302 fall within sentencing guidelines for the crimes to which Clark entered a guilty plea. The Circuit Court did not exceed the maximum years incarceration allowed by statute. As to Clark s claim of miscalculation of sentence, Clark failed to demonstrate to the trial court that he had exhausted the administrative remedies program through the MDOC as required by Miss. Code Ann. 47-5-803. In the event that the offender has not completed the ARP process, the 6
law provides that: No state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure. Wheeler v. State, 164 So. 3d 501, 507 (Miss. Ct. App. 2015) (quoting Lee v. Kelly, 34 So.3d 1203, 1205 06 ( 8 9) (Miss. Ct. App. 2010). See also Miss. Code Ann. 47 5 803(2) (Rev.2011)). MDOC ARP documents attached to the Appellant s Brief as exhibits were not provided to the trial court. [An appellate court] may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record. Whatley v. State, 123 So. 3d 461, 466 (Miss. Ct. App.), reh'g denied (June 25, 2013), cert. denied, 123 So. 3d 450 (Miss. 2013). The ARP documents Clark attached to his brief are not a part of the appellate record, and thus cannot be considered by this Court. IV. Whether the 2005 sentencing proceeding was illegal which rendered all present proceedings illegal. As stated in the above issues, the reason for the banishment provision in Clark s 2005 sentence was not supported by the record; therefore, the court vacated the banishment provision. [C]ircuit courts have the authority of law to include banishment clauses under certain circumstances. See Cobb v. State, 437 So.2d 1218, 1220 (Miss.1983). These circumstances include cases where banishment is justified by the defendant's record as well as the best interests of the public and the defendant. See id. However, the Mississippi Supreme Court has held that a circuit court's reasons for ordering banishment... must be articulated and supported in the record by a factual basis... Mackey v. State, 37 So.3d 1161, 1167 ( 23) (Miss.2010). Ratcliff v. State, 120 So. 3d 1058, 1060 (Miss. Ct. App. 2013). The remainder of the sentence in Cause No. 05-256 and 05-271 and the sentence rendered in 2014 in 13-302 were all valid sentences. The sentences were the 7
result of Clark knowingly, voluntarily and intelligently pleading guilty. The length of the sentences fall within statutory limits. The sentences are legal and enforceable. The new crime committed by Clark and charged in Cause No. 13-302 constituted a legal basis for revocation of Clark s PRS. Nothing in the trial court record reflects that Clark s PRS was unlawfully revoked or that he failed to receive due process. Therefore, this issue lacks merit. 8
CONCLUSION For the foregoing reasons, the State asks this honorable Court to affirm the trial court's order granting Clark s motion for post-conviction relief in part and dismissing with prejudice in part pursuant to Miss. Code Ann. 99-39-11(2). Respectfully submitted, JIM HOOD, ATTORNEY GENERAL Office of the Attorney General Post Office Box 220 Jackson, Ms 39205-0220 Telephone: (601) 359-3680 BY: /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 3599 9
CERTIFICATE OF SERVICE I, LISA L. BLOUNT, 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, 2015. Honorable David H. Strong, Jr. Circuit Court Judge P.O. Drawer 1387 McComb, MS 39649 Honorable Dewitt (Dee) Bates District Attorney 284 E. Bay Street Magnolia, MS 39652 Akiva Kareem Clark, Pro Se, #114088 SMCI P.O. Box 1419 Leaksville, MS 39451 /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL Office of the Attorney General Post Office Box 220 Jackson, Ms 39205-0220 Telephone No. 601-359-3680 Fax No. 601-576-2420 lblou@ago.state.ms.us 10