Claverie v. State, 2017–CP–00433–COA

• Decision Date: 13 March 2018
• Docket Number: NO. 2017–CP–00433–COA,2017–CP–00433–COA
• Citation: 261 So.3d 1120
• Parties: Todd Michael CLAVERIE a/k/a Todd M. Claverie a/k/a Todd Claverie, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

261 So.3d 1120

Todd Michael CLAVERIE a/k/a Todd M. Claverie a/k/a Todd Claverie, Appellant

v.STATE of Mississippi, Appellee

NO. 2017–CP–00433–COA

Court of Appeals of Mississippi.

March 13, 2018

Rehearing Denied October 2, 2018

ATTORNEY FOR APPELLANT: TODD MICHAEL CLAVERIE (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

CARLTON, J., FOR THE COURT:

¶ 1. Todd Michael Claverie appeals the Harrison County Circuit Court's denial of his motion for post-conviction relief (PCR), seeking to have his post-release supervision (PRS) reinstated based upon his "full acquittal" of a sexual-battery charge brought against him while he was on PRS. Claverie asserts, pro se, that: (1) his PRS should be reinstated because he was acquitted of the sexual-battery felony that served, in part, as the basis for his PRS revocation; and (2) even if he had violated other conditions of his PRS, the circuit court exceeded its authority under Mississippi Code Annotated section 47–7–37(5) (Rev. 2015) when it imposed the full remainder of the suspended portion of his sentence at the revocation hearing. Finding no error in the circuit court's denial of Claverie's PCR motion, we affirm. The record reflects sufficient evidence supporting the circuit court's authority to impose the remainder of Claverie's sentence under section 47–7–37.1 (Rev. 2015) and under 47–7–37(5)(b) for the commission of multiple technical violations.

STATEMENT OF FACTS

¶ 2. In December 2012, Claverie was indicted for possession of marijuana with the intent to transfer or distribute. On September 3, 2013, he pled guilty to that charge and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), suspended for time served, with three years' PRS pursuant to Mississippi Code Annotated section 47–7–34 (Rev. 2015). The order entered on September 3 set out specific terms and conditions of Claverie's PRS, including the condition that Claverie commit no offense against the laws of Mississippi or any other state or the United States.

¶ 3. Claverie was arrested and charged with sexual battery in January 2015. The State filed a petition to revoke his PRS on February 13, 2015, with an amended petition filed on February 23. In its revocation petition, the State itemized four PRS violations as follows:

Condition a: (Commit no offense against the laws of this state or any state of the United States). Offender was arrested by the Jackson County Sheriff's Department and charged with one count of sexual battery.

Condition d: (Report to supervising officer as directed). Offender missed reporting dates in the months of October, November, [and] December 2014 and January 2015.

Condition k: (Supervision Fees) Offender [is] in arrears of $160, offender missed payments for November, December 2014 & February 2015, but last payment was 1/7/15 for $60.

Conditions n & o: (Court Fines & Payments). Offender has a balance of $407.50; last payment was on 2–11–14 for $2[,]000.

Claverie waived his right to a preliminary PRS revocation hearing, and on April 20, 2015, a revocation hearing was conducted before the circuit court. Claverie was represented by counsel.

¶ 4. At the hearing, the circuit court first questioned Claverie on whether he admitted or denied the violations itemized in the State's revocation petition. Claverie, through counsel, admitted to being arrested for sexual battery as to condition (a). Claverie denied condition (d) (failing to report in October, November, and December 2014 and January 2015) because he claimed he was put on quarterly reporting. As for condition (k), failing to pay the $55 monthly supervision fee, the circuit court noted at the hearing that "[i]f you absconded, you're not paying [and] they're saying you owe some money to the probation field office." Continuing, the circuit court said that because Claverie denied he had failed to report, the court likewise took that to mean that Claverie also denied failing to pay his supervision fees. Claverie affirmed that interpretation, and thus denied that he violated condition (k). Claverie also denied any failure to pay court fines and costs (conditions (n) and (o) ), but testified that he had a remaining balance of $400 of a $2,400 fine.

¶ 5. The State then presented its case, first addressing Claverie's sexual-battery charge in violation of condition (a) of the PRS order. The State called Sergeant Kristin McElwain, a detective with the Jackson County Sheriff's Department who, at the time, was investigating Claverie's sexual-battery charge against the victim, H.T.¹ She testified that her investigation began based on a report from school officials that H.T. had reported to her principal that she was being sexually assaulted by her stepfather, Claverie. The detective interviewed H.T., who told her that she was being sexually assaulted by Claverie beginning at the age of twelve, continuing until his arrest four years later, and including penetration beginning at age fourteen by penis and fingers along with fellatio and oral sexual battery. Additionally, the detective testified that she had spoken with eight witnesses who corroborated H.T.'s story, and she also had corroborating physical evidence. Sergeant McElwain also testified that she had interviewed another alleged victim, a former neighbor, who was present during the sexual assault at issue here. She then advised the circuit court that, at the time of the hearing, Claverie's case had been bound over to the Jackson County grand jury.

¶ 6. The State also addressed Claverie's denial of condition (d), that he missed reporting dates in October, November, and December 2014 and January 2015. Officer Rashad Conerly, with MDOC, testified that from his review of MDOC records he saw no evidence that Claverie had reported in any of the months at issue, nor was he informed that Claverie had been placed on quarterly probation. Additionally, Officer Conerly testified that even if Claverie had been reporting on a quarterly basis, Claverie would have been required to report during the four-month period from October 2014 to January 2015. If Claverie had reported, it would have been noted in MDOC's system, and there was no evidence that he had done so.

¶ 7. The State did not put on evidence relating to conditions (k), (n), or (o) at the revocation hearing, stating that Claverie had admitted to violating these "failure to pay" conditions. At the close of the State's case, Claverie offered no witnesses. He also offered no testimony or proof that he had paid the $55 monthly supervision fee to MDOC for the months of November and December 2014 and February 2015, as required under condition (k); nor did he offer any evidence to rebut the information in the State's February 23, 2015 revocation petition that Claverie had violated conditions (n) and (o) because he had not made the required $50 monthly payments on the court costs and fines that he owed since February 11, 2014.

¶ 8. The circuit court then called Claverie to the bench and explained that based on the evidence it heard relating to condition (a) (Claverie's sexual-battery charge) and the testimony regarding Claverie's failure to report as required under condition (d), there was a sufficient basis, by a preponderance of the evidence, to revoke Claverie's PRS. The circuit court imposed the original fifteen-year sentence, with credit for all time served, and entered its revocation order on April 22, 2015.

¶ 9. On October 7, 2015, the Jackson County grand jury returned a ten-count indictment setting forth the sexual battery and related charges against Claverie, including: five counts of sexual battery; two counts of touching a child with lustful purposes; two counts of tampering with a witness (charging that Claverie attempted to induce H.T.'s two half-sisters to falsely testify that H.T. said she lied about Claverie's actions against her); and one count of intimidating a witness (charging that Claverie sent intimidating and threatening messages to H.T.).

¶ 10. On August 5, 2016, a jury found Claverie guilty of three felonies—two counts of tampering with a witness and one count of intimidating a witness, H.T. The State nol prossed one count of sexual battery against Claverie, and the jury acquitted Claverie of the other sexual-battery/lustful-touching charges. Claverie was sentenced to seven years in MDOC custody. The sentencing order was entered on September 15, 2016.

¶ 11. On January 11, 2017, Claverie filed a five-sentence pleading styled "Brief of the Appellant," requesting "post-conviction relief" based only upon his "full acquittal [of] the false allegations made against him" regarding the sexual-battery charge. Claverie attached to his PCR motion the following exhibits: (A) the entry of the nolle prosequi as to Count IV only (the sexual-battery charge that he penetrated H.T.'s vagina with his tongue) and the jury verdict from the trial on the sexual-battery and related charges; and (B) the transcript of the April 20, 2015 revocation hearing. Claverie's PCR motion was unsworn.

¶ 12. By order of the circuit court, the State filed a response to Claverie's PCR motion and attached to that response the following exhibits: (A) the ten-count indictment returned on October 7, 2015, delineating the sexual-battery and other related charges against Claverie; and (B) the sentencing order entered September 15, 2016, following Claverie's sexual-battery trial, together with the entry of nolle prosequi as to Count IV only.

¶ 13. On March 6, 2017, the circuit court entered a detailed order denying Claverie's PCR motion. The circuit court judge that conducted Claverie's revocation hearing was the same judge that ruled on Claverie's PCR motion, and he specifically noted in his order that he had conducted a full evidentiary hearing on April 20, 2015, on Claverie's alleged PRS violations. In its order denying Claverie's PCR motion, the circuit court summarized...