Anderson v. State

• Citation: 89 So.3d 645
• Decision Date: 07 June 2012
• Docket Number: No. 2010–CP–01628–COA.,2010–CP–01628–COA.
• Parties: Ira Lee ANDERSON II, Appellant v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

89 So.3d 645

Ira Lee ANDERSON II, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–CP–01628–COA.

Court of Appeals of Mississippi.

Nov. 29, 2011.

Rehearing Denied March 13, 2012.

Certiorari Denied June 7, 2012.

Ira Lee Anderson II, appellant, pro se.

Office of the Attorney General by John R. Henry Jr., attorney for appellee.

Before LEE, C.J., BARNES and ROBERTS, JJ.

ROBERTS, J., for the Court:

¶ 1. On August 2, 2010, Ira Lee Anderson II filed his motion for post-conviction relief (PCR) in the Panola County Circuit Court asserting multiple issues regarding the revocation of his post-release supervision (PRS) on August 21, 2009. The circuit judge entered an order denying Anderson's PCR motion on September 20, 2010. It is from this denial that Anderson now appeals. Finding no error, we affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 7, 2008, a Panola County grand jury indicted Anderson on one count of aggravated assault for cutting Reginald Kirkland with a razor blade. At the hearing held on March 16, 2009, the circuit judge accepted Anderson's petition to enter a guilty plea to one count of aggravated assault as indicted. Written into his petition to enter a guilty plea, which was signed by Anderson and acknowledged by him at the hearing, the recommended sentences is as follows:

As a result of plea-bargaining, my attorney an[d] I have reached an agreement with the District Attorney's Office concerning my offer to plead guilty to the charge(s) listed in paragraph three [aggravated assault]. It is my understanding that the District Attorney will recommend to the [c]ourt that I receive a sentence as follows or see attached plea agreement:

10 yrs. MDOC suspended (PRS) 2 years

supervised probation

pay restitution [and] court costs

At the hearing, the circuit judge approved the agreement and stated that he would “sentence Mr. Anderson to a term of five days in the Mississippi Department of Corrections [MDOC].” He then ordered Anderson “to be placed upon ten years of [PRS]. Of the ten years [PRS], two years will be on a reporting basis ... [and] eights years on a non[-]reporting basis.” He cautioned Anderson by saying, “[t]hat means you have ten years hanging over your head, Mr. Anderson.” Lastly, the circuit judge informed Anderson that “[a]s long as you don't commit any new offenses you'll be fine, but if you do then you stand the opportunity of coming back before this [c]ourt upon five days notice[,] on a petition to revoke your suspended sentence and you could serve up to possibly ten years in jail. Do you understand that?” Anderson responded, “Yes, sir.”

¶ 3. At the conclusion of the hearing, Anderson was given credit for time served and began serving the PRS portion of his sentence. Less than six months later, Anderson was again before the circuit court representing himself at his PRS revocation hearing. After hearing evidence from the State and Anderson, the circuit judge entered an order revoking eight years of Anderson's PRS because Anderson violated the terms of his PRS by failing to pay any of the court-ordered restitution and costs, not reporting to his probation officer, not having suitable employment, testing positive for marijuana use, driving under the influence (DUI), careless driving, speeding, having no insurance, and driving with a suspended driver's license.

¶ 4. Anderson subsequently filed a PCR motion on August 2, 2010, alleging multiple issues with the revocation of his PRS. The circuit judge entered an order denying Anderson's PCR motion on September 20, 2010. Feeling aggrieved, Anderson perfected his appeal and raises the following issues, which we recite verbatim:

I. Whether [the] [circuit] court had authority or jurisdiction over appellant?

II. Whether [the] [circuit] court had authority or jurisdiction to hear appellant's [PRS] revocation hearing?

III. Whether appellant was denied [d]ue [p]rocess at his [PRS] revocation hearing?

IV. Whether [the] [circuit] court's imposition of a sentence at appellant's [PRS] revocation hearing exceeding his original sentence constituted [d]ouble [j]eopardy?

V. Whether [the] appellant's attorney's performance was ineffective?

VI. Whether [the] sentence [the] appellant received at his [PRS] hearing was illegal?

VII. Whether [the circuit judge] acted in bad faith and with willful misconduct in office?

VIII. Whether [the circuit] court failed to render findings of fact and conclusions of law as requested by the appellant?

IX. Whether [the] [circuit] court erred in denying the appellant's [PCR] motion without affidavits?

STANDARD OF REVIEW

¶ 5. The circuit court summarily dismissed Anderson's PCR motion pursuant to Mississippi Code Annotated section 99–39–11(2) (Supp.2011) which provides the PCR motion may be dismissed “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” In State v. Santiago, 773 So.2d 921, 923–24 (¶ 11) (Miss.2000), the Mississippi Supreme Court held “a trial court may summarily dismiss a [motion] for PCR, without having held an evidentiary hearing, when it is clear that the [movant] is not entitled to relief under the [Uniform Post–Conviction Collateral Relief Act].” Additionally, “dismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

ANALYSIS

¶ 6. Although Anderson raises his argument that his sentence was illegal as his sixth issue, we will address that issue first since it has bearing on subsequent issues. Further, we have combined Anderson's issues for clarity and judicial economy.

I. Illegal Sentence

¶ 7. Anderson asserts that the sentence he received at his PRS revocation hearing was illegal. He argues he was originally sentenced to serve five days in the custody of the MDOC, with no years suspended and ten years of PRS. He further contends that no portion of his sentence was suspended originally; therefore, the circuit judge could not order him to serve any more time in jail. This assertion is clearly erroneous.

¶ 8. First, it is clear from our reading of the record that Anderson understood he faced up to possibly ten more years in the custody of the MDOC. At Anderson's original sentencing hearing, the circuit judge informed Anderson that if he violated the terms of his PRS, the circuit court could “revoke [his] suspended sentence and [he] could serve up to possibly ten years in jail.” (Emphasis added). After hearing this, Anderson answered in the affirmative when asked if he understood that he could serve up to ten years in the custody of the MDOC if he did not abide by the conditions of his PRS.

¶ 9. Further and more importantly, Mississippi Code Annotated section 47–7–34 (Rev.2011) provides guidance when handling the imposition of PRS. Mississippi Code Annotated section 47–7–34(1) contains the following language:

When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, 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. The defendant shall be placed under post-release supervision upon release from the term of incarceration.

(Emphasis added). Under this section of the statute, it was proper for the circuit court to give Anderson a PRS sentence in addition to the five days he was ordered to serve in custody. It is imperative to note that the statute contains no language that a suspended sentence must be given if the circuit court also wants to impose PRS. Likewise, it contains no language prohibiting the circuit court from suspending a portion of the sentence as long as the remaining portion of the sentence “includes a term of incarceration in a state or local correctional facility[.]”

¶ 10. Mississippi Code Annotated section 47–7–34(2) provides the following language:

Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.

(Emphasis added). The circuit court found that Anderson violated the terms and conditions of his PRS, revoked his PRS, and ultimately recommitted him to serve eight years of his PRS in the custody of the MDOC. It is customary procedure for the circuit court to suspend a portion of the sentence when utilizing PRS. For clarity and consistency in sentencing, we encourage such practice. Based on the language in the PRS statute, we fail to find merit in Anderson's argument that because he was not given a suspended sentence, the circuit court's revocation of his PRS and sentence of eight years to serve in the custody of the MDOC was illegal.

¶ 11. We acknowledge there is confusion in interpreting how Mississippi Code Annotated section 47–7–34 and Mississippi Code Annotated section 47–7–33 (Rev.2011) work in conjunction with one another. The language found in Mississippi Code Annotated section 47–7–34(1) implies that PRS is part of the term of the sentence; however, Mississippi Code Annotated section 47–7–34(2) mandates that PRS revocation is to use the same the procedures found in Mississippi Code Annotated sections 47–7–33, 47–7–35 (Rev.2011) and 47–7–37 (Rev.2011) which contains the revocation procedures for probation and suspended sentences. Differing from...