Hardison v. State

• Decision Date: 27 April 2021
• Docket Number: No. 2018-CP-01193-COA,2018-CP-01193-COA
• Court: Mississippi Court of Appeals
• Parties: Merlin HARDISON, Appellant, v. STATE of Mississippi, Appellee.

317 So.3d 978

Merlin HARDISON, Appellant,

v.STATE of Mississippi, Appellee.

No. 2018-CP-01193-COA

Court of Appeals of Mississippi.

April 27, 2021

ATTORNEY FOR APPELLANT: MERLIN HARDISON (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

BARNES, C.J., FOR THE COURT:

¶1. A Hinds County Circuit Court jury convicted Merlin Hardison of one count of armed robbery and two counts of aggravated assault on May 24, 2006. On direct appeal, the Mississippi Supreme Court reversed Hardison's convictions and remanded for a new trial, finding the trial court "committed clear and reversible error by denying Hardison's right to a peremptory strike." Hardison v. State , 94 So. 3d 1092, 1102 (¶37) (Miss. 2012).

¶2. On remand, as part of a plea agreement, Hardison entered a guilty plea to one count of armed robbery and one count of aggravated assault on July 1, 2014; the remaining charge of aggravated assault was remanded to the files. House Bill (H.B.) 585 went into effect as law on the day of Hardison's plea; so the plea petition was amended to note the "[n]ew sentencing guidelines[,] which may allow for early release after serving 50% of time per H.B. 585 effective July, 2014." At the plea hearing, Hardison's attorney, Brent Southern, addressed the recent changes to the law and the amendment to the petition:

BY MR. SOUTHERN: Your Honor, if I may just for a brief moment. You may have noticed it by now, but the plea petition that we were using, the form this morning, there is a cross through on, I think, the second page -

BY THE COURT: I'm looking at it.

BY MR. SOUTHERN: - where it talks about House Bill 585, which becomes law effective today, July 1, 2014, which eliminates armed robbery as a specific crime whereby the defendant would not be eligible for early release. Under House Bill 585, he will be eligible for early release provided he meets certain other criteria during the time of his incarceration.

I had Mr. Hardison initial the cross[-]through, so I went through it with him and he understands it.

BY THE COURT: I note the change in the petition.

....

BY [THE STATE]: Your Honor, as far as any amendment to the plea petition as to [H.B.] 585, I am not - I'll say 585, it's my understanding, does set forth parameters which he may be eligible under 585 for early release . I'm not aware of that. I don't -- I don't deal with [Mississippi Department of Corrections (MDOC)] once they're out of my hands, which is why I had no objection to the amendment to the plea petition.

....

BY THE COURT: ... I'll note the - this writing in the petition to plead guilty. And I share the prosecutor's and your own attorney's lack of ability to interpret House Bill 585, but I believe it accurately represents what the bill stands for. But that's above my pay grade. Somebody else at the MDOC is going to have to deal with that as far as whether or not to apply those early release dates.

(Emphasis added). The trial court thereby sentenced Hardison to serve two concurrent sentences in the custody of the MDOC—thirty years for the armed-robbery conviction and twenty years for the aggravated-assault conviction—with twenty-three years to be served and seven years suspended.

¶3. Once in custody, Hardison claims he was informed that he was not eligible for early release; so Hardison filed a motion for post-conviction relief (PCR) on November 28, 2016, requesting that the trial court either allow him to withdraw his guilty pleas or enforce the conditions of his plea agreement (i.e., provide him with eligibility for early release). He also requested an evidentiary hearing.

¶4. To support his claim, Hardison cited Mississippi Code Annotated section 47-7-3.2(1) (Supp. 2014), enacted by H.B. 585, which provides:

Notwithstanding Sections 47-5-138, 47-5-139, 47-5-138.1 or 47-5-142, no person convicted of a criminal offense on or after July 1, 2014, shall be released by the department until he or she has served no less than fifty percent (50%) of a sentence for a crime of violence pursuant to Section 97-3-2 or twenty-five percent (25%) of any other sentence imposed by the court.

(Emphasis added). Without holding an evidentiary hearing, the trial court denied Hardison's PCR motion on September 21, 2018, finding:

Hardison pled guilty to these crimes on July 1, 2014. This was also the effective date for H.B. 585, codified as Mississippi Code Annotated § 47-7-3.2. This statute gave violent offenders the chance for parole after serving fifty percent of their sentence. Hardison claims [the] new law was his main incentive for pleading guilty and asserts he was misled by his attorney to accept the agreement. The Mississippi Legislature enacted another law in 2016, Mississippi Code Annotated § 47-7-3, that made any person convicted of a violent crime on or after July 1, 2014, ineligible for parole. The two laws were contradictory; however, the Attorney General clarified the issue holding the latest statute, Mississippi Code Annotated § 47-7-3, as the binding authority.¹

Accordingly, since Hardison was sentenced on or after July 1, 2014 and was convicted of violent offenses, he is not eligible for parole or early release. At the time of his guilty plea, his attorney advised him of the correct law and is not responsible for a legislative change two years after sentencing.

Hardison appeals the trial court's ruling, arguing that (1) his plea was involuntary because he relied on his attorney's representation that he would be eligible for parole after serving fifty percent of his sentence, and (2) the court erred in its ex post facto² application of the 2016 amendment to his sentence. Hardison, therefore, requests that this Court reverse and render his sentence, as he has already served over fifty percent of that sentence.

¶5. The State asserts that "Hardison's claim that the trial court enacted or enforced an ex post facto law through its order is without merit" and that Hardison is not parole eligible. The State does concede, however, that Hardison was "entitled to an evidentiary hearing on the issue of whether he voluntarily, knowingly, and intelligently entered his guilty plea," as counsel's advice "regarding his eligibility for early release was erroneous." Therefore, the State requests that this Court remand for further proceedings merely to allow Hardison to present any evidence that he relied on his attorney's misrepresentation "when entering his guilty plea."

¶6. At the outset, we find the trial court erroneously stated that Mississippi Code Annotated section 47-7-3(1)(g)(i) was "enacted" in 2016.³ Enacted by H.B. 585, section 47-7-3(1)(g)(i) went into effect on July 1, 2014, and provides, "No person who, on or after July 1, 2014, is convicted of a crime of violence pursuant to Section 97-3-2, a sex crime or an offense that specifically prohibits parole release, shall be eligible for parole." For this reason, we cannot find merit to Hardison's argument that the court applied an ex post facto law.

¶7. We also find that Hardison is not parole eligible because he was convicted of two crimes of violence under Mississippi Code Annotated section 97-3-2(1) (Rev. 2014). Nevertheless, the State has conceded that defense counsel's advice regarding parole eligibility was "erroneous" and that "this case should be remanded for an evidentiary hearing" based on his claims. Accordingly, we reverse and remand to the trial court for an evidentiary hearing on the voluntariness of Hardison's guilty plea.

STANDARD OF REVIEW

¶8. "This Court employs the clearly-erroneous standard of review when reviewing a trial court's summary dismissal of a PCR motion." Smith v. State , 291 So. 3d 1, 5 (¶8) (Miss. Ct. App. 2019) (quoting Lofton v. State , 233 So. 3d 907, 908 (¶4) (Miss. Ct. App. 2017) ). We will affirm a court's "summary dismissal of a defendant's PCR motion ‘if he fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.’ " Id . (quoting Moore v. State , 248 So. 3d 845, 848 (¶7) (Miss. Ct. App. 2017) ). Questions of law, however, are reviewed de novo. Id . (citing Lofton , 233 So. 3d at 908 (¶9) ).

DISCUSSION

¶9. As in his PCR motion, Hardison contends that section 47-7-3.2 grants him eligibility for early release from custody. Hardison argues that he entered his guilty plea believing that "he would be eligible for parole after serving [fifty] percent (50%) of his sentence pursuant to [H.B.] 585 effective July 1, 2014." Yet when he re-entered MDOC's custody, his new time sheet "reflected that he must serve the entire [twenty-three-year] sentence rather than receiving a [fifty] percent reduction to be release on parole or early release after serving 11 ½ years as promised in the agreement."

¶10. The State asserts that notwithstanding the language of section 47-3-3.2, "Hardison was not eligible for parole at the time he pleaded guilty because both of his crimes were classified as crimes of violence pursuant to [ section] 97-3-2." Section 97-3-2(1), also enacted in 2014, enumerated specific crimes of violence, including armed robbery and aggravated assault.⁴ See Miss. Code Ann. § 97-3-2(1). While we have found no cases addressing if or how section 47-3-3.2 affects an inmate's parole eligibility, the supreme court did address in Fogleman v. State , 283 So. 3d 685, 691 (¶22) (Miss. 2019), the interplay between section 47-7-3(1)(g)(i) and section 97-3-2(2). Specifically, the supreme court was asked to consider if the petitioner was entitled to parole or early release under subsection (2) of section 97-3-2.⁵ Pertinent to our analysis is the supreme court's conclusion in Fogleman :

Instead of just declaring that Section 43-7-3(1)(g)(i)'s parole-elimination provision trumps, our law requires us, if possible, to harmonize these two parole-related provisions so as not to render the last sentence of Section 97-3-2(2) meaningless. We find Section 43-7-3(1)(g)(i) does apply to the per

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