Harwell v. State, 2000-CP-01642-COA.

• Decision Date: 07 May 2002
• Docket Number: No. 2000-CP-01642-COA.,2000-CP-01642-COA.
• Citation: 817 So.2d 598
• Parties: Jessie HARWELL, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

817 So.2d 598

Jessie HARWELL, Appellant v. STATE of Mississippi, Appellee.

No. 2000-CP-01642-COA.

Court of Appeals of Mississippi.

May 7, 2002.

Jessie Harwell, Appellant, pro se.

Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appellee.

Before SOUTHWICK, P.J., BRIDGES, and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. Jessie Harwell appeals from an order of the Circuit Court of Lafayette County, Mississippi denying his petition for post-conviction relief. Aggrieved, Harwell perfected this appeal, arguing that the trial court erred by not appointing counsel for the probation revocation hearing. However, Harwell, proceeding pro se, presented this Court with an incomplete record. We remanded the cause to the circuit court, requesting that an evidentiary hearing be held regarding the reasons for the revocation of Harwell's probation. The court supplemented the record with the actual transcript taken from Harwell's probation revocation hearing. Finding no error, we affirm.

FACTS

¶ 2. Jessie Harwell was indicted on two counts of simple robbery on January 14, 1996. Harwell entered a guilty plea to both offenses and was sentenced to probation for five years under a suspended sentence of five years. The judgment also ordered Harwell to leave Mississippi for a period of ten years.

¶ 3. Subsequent to the sentence, Harwell moved to Alabama. However, contrary to the court's orders, he returned to Lafayette County, Mississippi after approximately two years. Harwell alleged that he had been stabbed through the chest while living in Alabama and that, as a safety and precautionary measure, it was necessary for him to return to his family in Mississippi. Harwell also asserted that he contacted the Lafayette County Sheriff prior to returning and received permission to return to Mississippi. While in Mississippi, Harwell was arrested and charged with public drunkenness.

¶ 4. Following a revocation hearing, Harwell's probation was revoked. The trial judge concluded that Harwell's arrest for public drunkenness clearly violated the terms and conditions of his probation. Harwell was ordered to serve his five-year sentence in the penitentiary.

¶ 5. Harwell filed a motion seeking post-conviction relief in which he claimed that the revocation of his probation without the aid of appointed counsel violated his Fourteenth Amendment right to due process and his Sixth Amendment right to assistance of counsel. The circuit court entered an order summarily denying Harwell's complaint. It is from this denial that Harwell now appeals.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR BY NOT APPOINTING COUNSEL FOR THE PETITIONER WHEN THE PROBATION REVOCATION HEARING WAS HELD?

¶ 6. In reviewing the trial court's denial of a petition for post-conviction relief, this Court will not disturb the factual findings of the trial court unless they are determined to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 7. Harwell argues that the trial court erred in failing to appoint counsel at his probation revocation hearing. Specifically, Harwell asserts that a probation revocation hearing is a critical stage within the process of a criminal prosecution; therefore, the Fourteenth and Sixth Amendments require that counsel be appointed during probation revocation proceedings. Finding Harwell's argument contrary to well-established case law, this Court rejects this assignment of error.

¶ 8. The Mississippi Supreme Court has made it clear that probationers do not "have, per se, a right to counsel at revocation hearings." Riely v. State, 562 So.2d 1206, 1209 (Miss.1990) (citing Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United States Supreme Court reasoned that the right to counsel does not attach because a probation revocation proceeding does not fall within the critical stages of a criminal prosecution where a substantial right of the accused might be affected. Nonetheless, the court emphasized that the potential deprivation that accompanies a revocation of probation requires that the probationer be accorded due process during the revocation proceeding, including, in a very limited number of cases, the right to counsel. Id. at 781-82, 93 S.Ct. 1756. The court, however, did not incorporate the right to counsel within the list of basic due process rights that always attaches during a revocation proceeding. Id. at 786, 93 S.Ct. 1756. Instead, the court stated that "the decision as to the need for counsel must be made on a case-by-case basis, in the exercise of sound discretion by the state authority charged with responsibility for administering the probation and parole system." Id. at 790, 93 S.Ct. 1756. In concluding, the court noted:

Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.

Id.

¶ 9. It is clear from the record that Harwell neither obtained nor requested counsel during any stage of his revocation proceeding. It is equally apparent that Harwell's situation is not of the type contemplated by the Supreme Court in Gagnon where it announced the limited need for counsel during certain revocation proceedings. Nonetheless, Harwell argues that his situation was unique due to the mitigating circumstances forcing his return to Mississippi. The record shows that Harwell asserted two mitigating circumstances justifying his prohibited return: (1) he feared for his life outside of Mississippi and needed to be with his family, and (2) he obtained permission from the Sheriff of Lafayette County before he returned. We find that although mitigating, the defenses argued by Harwell were straightforward and certainly not "complex or otherwise difficult to develop or present." Therefore, the trial court was under no duty to appoint counsel for Harwell during the revocation proceeding. See Mississippi State Probation Bd. v. Howell, 330 So.2d 565, 566 (Miss.1976)

(noting that out of the tens of thousands of probation revocation hearings, very few would require the presence of counsel).

¶ 10. In reaching this decision we address the issue raised by the dissent as to whether the trial court had the authority to revoke Harwell's probation. The dissent contends that Harwell received suspended sentences on both counts of simple robbery and was never placed on probation. In support of this conclusion, the dissent notes that there is no evidence in the record that the trial court notified Harwell of conditions to his suspended sentence; therefore, the dissent reasons that Harwell was never placed on probation. Moreover, the dissent argues that the clear absence of the terms and conditions of probation from the final judgment of conviction and sentence supports the conclusion that Harwell was never placed on probation. This conclusion, however, is inaccurate as the Mississippi Supreme Court has noted that a defendant may be placed on probation where the trial court orally informs him of the terms and conditions attached to the suspended sentence. Artis v. State, 643 So.2d 533, 538 (Miss. 1994). See also Tunstall v. State, 767 So.2d 167, 169

(¶ 10) (Miss.1999) (noting that probation may be implied from the language used by the trial court during the sentencing proceedings).

¶ 11. While the dissent is correct in concluding that the record lacks evidence that Harwell was ever placed on probation, its conclusion that this omission warrants reversal is misguided. As the Mississippi Supreme Court has stated, "[w]e have repeatedly stressed that the necessary transcripts are to be made part of the record, and that the appellant bears the burden of presenting a record which is sufficient to undergird his assignment of error." Williams v. State, 522 So.2d 201, 209 (Miss.1988). Assuming Harwell had raised this issue, he would have had the burden of establishing that he was never placed on probation. See Green v. State, 802 So.2d 181, 184

(¶ 19) (Miss.Ct.App.2001) (noting that appellant bears the burden of establishing a claim for relief in post-conviction actions). As noted, there is no evidence in the record establishing that the trial court suspended Harwell's sentence without attaching conditions of probation; therefore, we cannot reverse the trial court's denial of post-conviction relief.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS AND BRANTLEY, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

IRVING, J., Dissenting:

¶ 13. The majority addresses one issue, whether Harwell was entitled to appointed counsel to represent him in the revocation hearing. My review of Harwell's pro se brief indicates that Harwell complains about both the lack of justification for revoking his probation and the failure to appoint counsel to represent him in the probation hearing.¹ Because I believe there was no justification for revoking Harwell's probation, I respectfully dissent.

¶ 14. Harwell pleaded guilty in the Circuit Court of Lafayette County to two counts of robbery. He was sentenced to five years in the custody of the Mississippi Department of Corrections with the five years suspended. As a part of his sentence, he was "banished from [the] State of...