Grayson v. State

• Decision Date: 21 December 1994
• Docket Number: No. 91-KP-01215,91-KP-01215
• Citation: 648 So.2d 1129
• Parties: Leroy GRAYSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1129

648 So.2d 1129

Leroy GRAYSON v. STATE of Mississippi.

No. 91-KP-01215.

Supreme Court of Mississippi.

Dec. 21, 1994.

Leroy Grayson, Pro Se.

Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

HAWKINS, Chief Justice, for the Court:

On October 21, 1988, Appellant Leroy Grayson (hereinafter Grayson) pled guilty to possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. He received a suspended sentence of ten years, five years supervised probation, and a fine of $5,000. Two years later, on July 17, 1990, an Affidavit was sworn out stating that Grayson had violated the terms of his probation by committing the crime of sale of cocaine. On that same day, Grayson waived his right to a preliminary probation revocation hearing. An indictment was handed down for this crime on September 13, 1990, and Grayson was arraigned on October 4, 1990.

A trial on the charge of sale of cocaine held December 11, 1990, ended in a mistrial. A probation revocation hearing was then held that same day after which an Order of Revocation of Probation was issued. On February 6, 1991, Grayson filed a motion to review and modify the order of revocation. A hearing was held on this motion on February 22, 1991, at which the motion was denied. On November 13, 1991, Grayson filed a motion in the nature of a post-conviction relief motion which was denied on November 21, 1991. That same day the lower court filed an Amended Order of Revocation of Probation.

Grayson appealed on December 3, 1991.

FACTS

On January 15, 1988, the grand jury of Washington County indicted Grayson on two counts: possessing cocaine on October 19, 1987, with intent to sell, and possessing marijuana on the same date with intent to sell.

On October 21, 1988, there was a hearing before Circuit Judge Gray Evans at which time Grayson, represented by an attorney, pleaded guilty to both counts. Grayson had only gone to the third grade in school, and on the date of the hearing informed the court he was 73. ¹ When asked if he could read and write, he answered, "A little, not much."

The court sentenced him to ten years imprisonment on count one, but suspended its execution, and placed Grayson on supervised probation for a period of five years. The court also fined him five thousand dollars.

Grayson received the same imprisonment on count two, to run concurrently with count one. No fine was levied on the second count.

On July 17, 1990, W. Roy Long, field officer, made an affidavit before Circuit Judge E. M. Bogen that Grayson had on June 14, 1990, violated the conditions of his probation by committing the crime of the sale of cocaine on June 14, 1990. On the same date Grayson executed a "Waiver of Right to Preliminary Probation Revocation Hearing," acknowledging therein that he was aware that the basis for the revocation was the crime of sale of cocaine on June 14. The waiver then contains the following printed paragraph:

After having these charges fully explained to me, and without waiving any other rights I may have, DO HEREBY VOLUNTARILY WAIVE and relinquish my right to a Preliminary Probation Revocation Hearing, and further request that I be returned to the Circuit Court for a full revocation hearing before the Circuit Judge.

A revocation hearing did not directly follow, however. Instead, the matter was presented to the Washington County grand jury, which on September 13, 1990, indicted Grayson for the sale of cocaine on June 14, 1990, and as a second offender. A capias under this indictment was issued September 13, and Grayson placed under arrest thereunder September 27. Grayson was arraigned October 4 and through his attorney entered a plea of not guilty.

The next entry in the record on this appeal is the following handwritten note, "Exhibit C-1," filed December 11. "At this point, we the jury, are seeming at a point of impass[e] with a talley [sic] of 9 guilty and 3 not guilty. We wait for Further instruction."

On the next page is the following handwritten note:

Please continue your deliberations with a view toward reaching a unanimous verdict, if you can do so without violence to your individual judgment.

We will order sandwiches and drinks for you at your request.

(signed) E.W. Bogen,

Circuit Judge

On the next page is another handwritten note, filed December 11, 1990: "After prolonged heated discussion we the Jury have reached a 10 guilty and 2 not guilty verdict. After much discussion this Vote has slim chance of changing. We respectfully await your further instruction's [sic]."

The court declared a mistrial on December 11 and on the same date made a bench ruling with Grayson standing before him at the bench that Grayson had violated the terms of his probation:

As a consequence of your arrest and indictment in Cause No. 21,738 charging you with sale of cocaine, the probation office filed an affidavit in Cause No. 20,314 charging you with violation of your probation by committing the crime of sale of cocaine. And pursuant to the request of counsel, the charge of violating your probation has been held in abeyance pending the outcome of this case.

Now, the jury was unable to agree on the charge of sale of cocaine and I've declared a mistrial in that case, but I find on the basis of the evidence produced here in Court on that charge that there is sufficient evidence to lead me to the conclusion that you did violate your probation by making such a sale. There is further evidence from you acknowledging possession of two firearms in your residence, and [sic] automatic pistol and a 30.06 rifle, and the possession and ownership of these weapons is also in violation of your probation.

For those reasons then I order that your probation in Cause No. 20,314 be revoked and that you be ordered to serve the ten-year sentence originally imposed in that cause number. You will be remanded to the custody of the sheriff of Washington County for transportation and delivery to the Department of Corrections.

That will be all, counsel. Thank you.

Court stands adjourned. ²

The court entered a mistrial order that same date, and continued the cause until the next term. The Department of Corrections, also on the same date, was notified of Grayson's sentence for violation of his probation, and that he was then in jail.

On February 5, 1991, Grayson's attorney filed a motion with the court to reconsider, pointing out that Grayson had no prior notice before the court's December 11, 1990, ruling that he was charged with possession of a firearm. The motion also asked the court to reconsider the severity of Grayson's sentence because of his age, 76 at the time, and his being crippled and in poor health.

The court conducted a hearing on the motion on February 22, 1991, at which time Grayson, again represented by counsel, testified he had no notice of the firearm violation prior to the December 11, 1990, hearing. Counsel made no attempt to offer any evidence as to Grayson's guilt or innocence of sale of cocaine in June 1990. The court then made the following ruling:

BY THE COURT:

Well, if that had been the only evidence offered against Mr. Grayson, I would not have revoked his probation. But the evidence was clear that he was involved with the sale of cocaine. Now the jury couldn't reach agreement, but the evidence was abundantly clear that he was involved in making a sale of cocaine with there being numerous law enforcement eyewitnesses. It was the same activity that he'd been involved in when he was convicted of the underlying offense that got him on probation in the first place, and I recognize that he is elderly. He claims to be in bad health. He has this deformed arm, but that's something that he's had all his life. He's been a successful businessman all his life selling this and other illegal substances as well as farming and carrying on legal business activities. He is seventy-four years old. I don't know what the condition of his health is, but it was good enough to deal drugs. He got one chance when he was put on probation. I'm not inclined to set aside the order, Counsel. I'm sorry.

BY MR. McILWAIN:

Thank you.

BY THE COURT:

The motion will be denied.

On November 13, 1991, Grayson filed a "Motion to Reinstate Probation," giving a ground therefor that he was not given a hearing that comported with the Constitution, contending a violation of due process. He alleged he had been given no advance notice of the revocation hearing, that it was not disclosed what would be considered, that he was given no opportunity to present witnesses, that he was denied his right to confront witnesses.

The court entered an order on November 20, 1991, again noting that at Grayson's trial the evidence was clear that "Petitioner was involved in making a sale of cocaine, and for that reason his probation was revoked." The order concluded:

At all stages of proceedings against the Petitioner, he has been represented by able counsel, he was timely served notice of the charges against him, and he has been given a full opportunity to respond to those charges. The motion to Reinstate Probation is not well taken and is denied.

The court's amended order of revocation of probation, dated November 20, 1991, stated his probation was revoked for "selling cocaine," was revoked in accordance with the provisions of Sec. 47-7-37 of the Code, and that Grayson was sentenced to serve 10 years in the custody of the Mississippi Department of Corrections.

Grayson has appealed.

LAW

WAS APPELLANT DENIED DUE PROCESS OF LAW BY HAVING HIS PROBATION REVOKED BY THE CIRCUIT COURT OF WASHINGTON COUNTY?

Any analysis of probation revocation due process in Mississippi must begin with Riely v. State, 562 So.2d 1206 (Miss.1990). This case adopted the minimal probation revocation due process requirements as set out by the United States Supreme Court in Gagnon v. Scarpelli, ...