Johnson v. State

• Decision Date: 17 January 2012
• Docket Number: No. 2010–CP–01335–COA.,2010–CP–01335–COA.
• Citation: 77 So.3d 1152
• Parties: Eldridge JOHNSON, Appellant v. STATE of Mississippi Appellee.
• Court: Mississippi Court of Appeals

77 So.3d 1152

Eldridge JOHNSON, Appellant

v.STATE of Mississippi Appellee.

No. 2010–CP–01335–COA.

Court of Appeals of Mississippi.

Jan. 17, 2012.

Eldridge Johnson, appellant, pro se.

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

EN BANC.

ROBERTS, J., for the Court:

¶ 1. Eldridge Johnson appeals the Forrest County Circuit Court's summary dismissal of Johnson's motion for post-conviction relief. Johnson argues that the circuit court impermissibly sentenced him to a vague and indeterminate sentence. Finding that the circuit court erred when it sentenced Johnson in a manner that, for multiple reasons, cannot operate within the parameters of the law, we find that the circuit court erred when it summarily dismissed Johnson's motion for post-conviction relief. Therefore, we reverse the judgment of the circuit court and remand this matter to the circuit court for further proceedings, if necessary, based on the State's decision whether to pursue revocation proceedings, as discussed in further depth, below.

FACTS AND PROCEDURAL HISTORY

¶ 2. Johnson pled guilty to false pretense. On November 7, 2008, the Forrest County Circuit Court sentenced Johnson to ten years in the custody of the Mississippi Department of Corrections (MDOC). However, the circuit court also added the following language to Johnson's order of conviction:

IT IS FURTHER ORDERED AND ADJUDGED that the Defendant shall serve two (2) years(s) in the custody of the Mississippi Department of Corrections Intensive Supervision House Arrest Program. Should the Defendant fail to successfully complete the service of said two (2) year(s) in the Intensive House Arrest Program, then this Court directs that the Defendant shall serve the entire ten (10) year sentence with the Mississippi Department of Corrections in the Department's general population. Should the Defendant successfully complete the service of said two (2) year(s) in the Intensive House Arrest Program, the remaining eight (8) years of his ten (10) year sentence be and the same are hereby suspended pursuant to and in conformity with the Post–Release Supervision set out and authorized in Miss.Code Ann. § 47–7–34 (1972), as amended, and Defendant shall be placed on Post–Release Supervision.

(Emphasis in original).

¶ 3. On December 3, 2009, Johnson filed a “motion to correct/modify sentencing order” in the Forrest County Circuit Court. Within his motion, Johnson stated that he had gone before the MDOC's classification committee based on the allegation that he had violated the terms of the intensive supervision program (ISP)—colloquially known as house arrest. Johnson further stated that the MDOC classification committee informed him that “per order of the [circuit court] he was to serve the entire ten ... years [sic] sentence in the [MDOC].” Johnson reasoned that the circuit court impermissibly required that he complete the ISP as a condition of his term of post-release supervision.

¶ 4. The circuit court treated Johnson's motion as a motion for post-conviction relief. The circuit court stated that, as seen in the order of conviction, “the [ISP] was not a condition of Johnson's post-release supervision.” Accordingly, the circuit court summarily dismissed Johnson's motion. Aggrieved, Johnson appeals.

STANDARD OF REVIEW

¶ 5. A circuit court may summarily dismiss a PCR motion “[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....” Miss.Code Ann. § 99–39–11(2) (Rev.2007). We will affirm the circuit court's summary dismissal of a PCR motion if, after reviewing the PCR motion de novo, we conclude that the petitioner has failed to “demonstrate ‘a claim procedurally alive substantially showing denial of a state or federal right....’ ” Ivory v. State, 999 So.2d 420, 424 (¶ 9) (Miss.Ct.App.2008) (quoting Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)).

ANALYSIS

¶ 6. Johnson does not attack the MDOC Classification Committee's decision to remove him from the ISP. Instead, Johnson attacks the sentence imposed by the circuit court. Consequently, Johnson's motion for post-conviction relief is subject to review. See Miss.Code Ann. § 99–39–5 (Rev.2007). We are also mindful that “[a]n argument that the sentence violates [the] law, either because it is clearly erroneous or because it is unredeemably ambiguous or incomplete, would be proper under the post-conviction [-]relief procedures.” Burns v. State, 933 So.2d 329, 331 (¶ 8) (Miss.Ct.App.2006). Johnson's specific claim is that the circuit court's sentence was illegally vague and indeterminate. During Johnson's two-year sentence to the ISP, he was under the full and complete jurisdiction of the MDOC, subject to re-classification to custody status if he violated the rules and guidelines of the ISP. Mississippi Code Annotated section 47–5–1003(3) (Rev.2004) provides:

To protect and to ensure the safety of the state's citizens, any offender who violates an order or condition of the [ISP] shall be arrested by the correctional field officer and placed in actual custody of the [MDOC]. Such offender is under the full and complete jurisdiction of the department and subject to removal from the program by the classification hearing officer.

See also Babbitt v. State, 755 So.2d 406, 409 (¶ 11) (Miss.2006). Johnson claims that his re-classification from ISP status to custody status by the MDOC classification hearing officer effectively terminated the circuit court's eight-year conditional sentence to post-release supervision under Mississippi Code Annotated section 47–7–34 (Rev.2004). After careful consideration, we agree.

¶ 7. There are two reasonable but mutually exclusive ways to interpret the circuit court's sentence: (A) at the time the circuit court sentenced Johnson, it sentenced him to ten years with the possibility of later having eight years suspended if the MDOC found that Johnson had satisfactorily completed the ISP; or (B) at the time the circuit court sentenced Johnson, it suspended eight years of Johnson's ten-year sentence and made Johnson's successful completion of the ISP one of the conditions of Johnson's suspended sentence. The uncertainty is based on the circuit court's conditional suspension of Johnson's sentence based on the undetermined—at least at the time Johnson was sentenced—outcome of whether he completed two years in the ISP. For multiple reasons, the circuit court's sentence cannot operate within the parameters of the law.

¶ 8. First, the circuit court did not retain sentencing authority over Johnson, and even if it had attempted to retain sentencing authority over him, it could have only done so for one year pursuant to Mississippi Code Annotated section 47–7–47(2)(a) (Rev.2004), which states that a sentencing court may:

upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered into the custody of the [MDOC], to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation....

Without retention of sentencing jurisdiction pursuant to section 47–7–47, the circuit court's authority to modify Johnson's sentence terminated at the expiration of the term of court. Miss. Comm'n on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997). See also Denton v. Maples, 394 So.2d 895, 898 (Miss.1981) (holding “the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the trial judge announces and imposes sentence.”) Accordingly, the circuit court lacked the authority to defer the question of suspension of part of Johnson's sentence to a later date past the term of court and conditioned on an event that may or may not occur in the future.

¶ 9. The dissent finds that the circuit court's failure to retain sentencing jurisdiction over Johnson was not fatal to Johnson's sentence. According to the dissent, the circuit court intended for the suspension of Johnson's sentence to be “self-executing.” With utmost respect for the dissent, Johnson's sentence could not be “self-executing.” At the precise moment that the circuit court sentenced Johnson, was Johnson sentenced to two years in the ISP with eight years suspended or was Johnson sentenced to ten years in the custody of the MDOC? The dissent concludes that the circuit court “clearly” sentenced Johnson to ten years in the custody of the MDOC. However, at the time the circuit court sentenced Johnson, it is only through clairvoyance, not clarity, that one could conclude that the circuit court sentenced Johnson to ten years in the custody of the MDOC, because the outcome determinative feature of Johnson's sentence—whether he completed two years in the ISP—had not yet occurred.

¶ 10. If the dissent's interpretation of Johnson's sentence is correct, then the circuit court's “self-executing” order would have allowed the circuit court to conditionally suspend Johnson's sentence after the time that the circuit court actually sentenced Johnson. As mentioned, because the circuit court did not retain sentencing jurisdiction over Johnson, the circuit court could not “automatically” suspend Johnson's sentence two years after the fact. The dissent's interpretation would allow the circuit court to circumvent the statutory limitation that a circuit court “shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” Miss.Code Ann. § 47–7–33 (Rev.2004); McGee v. State, 976 So.2d 954, 956 (¶ 12) (Miss.Ct.App.2008). To the extent that Brown v. State, 906 So.2d 833 (Miss.Ct.App.2004) contradicts this principle of law, Brown is hereby overruled.

¶ 11. If the dissent is correct that a circuit court has the power to issue ambiguous “self-executing” sentencing orders, by extension, circuit...