Pruitt v. State

• Decision Date: 19 July 2011
• Docket Number: No. 2010–CA–00230–COA.,2010–CA–00230–COA.
• Citation: 85 So.3d 876
• Parties: Cecil Junior PRUITT, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

85 So.3d 876

Cecil Junior PRUITT, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–CA–00230–COA.

Court of Appeals of Mississippi.

July 19, 2011.

Rehearing Denied Nov. 15, 2011.

Certiorari Granted March 15, 2012.

Certiorari Dismissed April 12, 2012.

James A. Williams, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

GRIFFIS, P.J., MYERS, ISHEE and CARLTON, JJ.

ISHEE, J., for the Court:

¶ 1. This is an appeal from the denial of post-conviction relief (PCR) from the Circuit Court of Lauderdale County's revocation of Cecil Junior Pruitt's (Pruitt) post-release supervision (PRS). Pruitt pleaded guilty to the sale of cocaine. The circuit court sentenced Pruitt to twenty years, with all but one day suspended, and ordered Pruitt to serve three years on PRS.

¶ 2. While on PRS, Pruitt was arrested again for selling cocaine. Pruitt's PRS was subsequently revoked, and he was ordered to serve the remainder of his twenty-year sentence in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Pruitt now appeals, raising ten assignments of error. Finding that none of Pruitt's arguments merit relief, we affirm the circuit court's judgment.

STATEMENT OF THE CASE

¶ 3. In 2005, Pruitt pleaded guilty to the sale of cocaine within 1,500 feet of a church, and was sentenced to twenty years in the custody of the MDOC. The circuit court ordered a suspended sentence of nineteen years, three hundred and sixty-four days, with only one day for Pruitt to serve in jail. The circuit court also ordered that Pruitt serve three years on PRS.

¶ 4. While on PRS, Pruitt was arrested again for selling cocaine within 1,500 feet of a church. An affidavit asserting a violation of PRS was filed on October 10, 2007, and a warrant for Pruitt's arrest was issued that same day. Trial was set for March 18, 2008, on the second charge for the sale of cocaine, and the PRS revocation hearing was set for the same date. However, on the morning of trial, the State agreed to nolle prosequi the new sale-of-cocaine charge and proceed only on the revocation issue. The circuit court signed a nolle prosequi order and moved forward with the revocation hearing.

¶ 5. During the hearing, the State presented testimony of Karl Merchant (Merchant), an agent with the East Mississippi Drug Task Force, and of Shannon Tension (Tension), the confidential informant. The State also presented the wire-recorded conversation of the drug sale between Pruitt and Tension. Pruitt did not present witnesses or evidence, but his counsel did cross-examine the State's witnesses.

¶ 6. Tension stated that before the buy, he was searched by task force agents, wired, and given two marked $20 bills to use to purchase drugs. He was then dropped off in the vicinity of the sale. Pruitt, who was driving a car with his girlfriend and baby as passengers, pulled up to Tension. The two began talking, and Tension gave Pruitt money in exchange for cocaine. Once Tension walked away from the car, narcotics agents pulled Pruitt over. Cocaine residue was found in the console of the car he was driving, along with the marked $20 bills. Tension was picked up by the police shortly thereafter, and was found to be in possession of cocaine and without the $20 bills.

¶ 7. After hearing the testimony, the circuit court determined that Pruitt was involved in a drug sale and as a result, revoked Pruitt's PRS. Pruitt received credit for time served while he was in jail awaiting the revocation hearing. Pruitt filed a "petition for a writ of habeas corpus and/or motion to reinstate post-release supervision." The circuit court considered this petition as a request for post-conviction relief and denied relief without an evidentiary hearing.

¶ 8. Pruitt now appeals, asserting ten issues, which we have consolidated for clarity into the following: (1) he was denied due process of law because he did not receive proper notice for the PRS revocation hearing, and he should have first received a preliminary hearing; (2) he was not afforded due process of law because he was denied a right to discovery concerning evidence to prove his guilt of the charge upon which the revocation was based; (3) he was denied due process of law because the State only introduced a copy of a forensic report prepared by the Mississippi State Crime Laboratory concerning the cocaine he was alleged to have sold, and the laboratory technician was not called to testify; (4) the circuit court erred in denying post-conviction relief without conducting an evidentiary hearing; and (5) he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 9. This Court will not disturb a circuit court's decision to deny a petition for post-conviction relief unless the court's factual findings are clearly erroneous. Forshee v. State, 853 So.2d 136, 139 (¶ 16) (Miss.Ct.App.2003). "However, where questions of law are raised[,] the applicable standard of review is de novo." Id.

DISCUSSION

I. Notice and Preliminary Hearing

¶ 10. Pruitt first argues that he did not receive adequate notice of the PRS revocation hearing, because the hearing was held in lieu of the trial. For the second charge of selling cocaine near a church, the circuit court set a trial date for March 18, 2008. On the day of the trial, however, the prosecutor dropped the charges against Pruitt and pursued only the PRS revocation. Pruitt argues that he was only notified of the PRS revocation hearing on the day the hearing took place, and because of the late notice, he was unable to adequately prepare a defense. However, we find the record is contrary to his assertions.

¶ 11. Pruitt claims that he was "ambushed" by the revocation hearing because he only received notice of the hearing on the day that the trial was originally set. The State must give prior notice of the grounds upon which it contends PRS should be revoked, and that notice must be specific and timely so as to allow an individual to mount a defense both with cross-examination of State witnesses and the opportunity to gather and present any evidence tending to show revocation is improper. Edmond v. Miss. Dep't of Corrs., 783 So.2d 675, 679 (¶ 14) (Miss.2001) ; Grayson v. State, 648 So.2d 1129, 1134 (Miss.1994).

¶ 12. The evidence shows that a written "Warrant and Petition" for revocation of Pruitt's PRS was entered on October 10, 2007, giving Pruitt notice that the MDOC had asked the circuit court to revoke the PRS due to the new charge of selling cocaine within 1,500 of a church. This petition served as formal written notice to Pruitt of the claim that he had violated his PRS. Further, the hearing transcript shows that both the trial and revocation hearing were scheduled for March 18, 2009:

BY THE COURT: The matter was scheduled—there were two matters that were scheduled today. One is the trial on the new cocaine sale charge. And as I understand it, the State is not pursuing that today.

Both Pruitt's attorney and the attorney for the State replied in the affirmative that this was the situation. Based on the record, we find that Pruitt received adequate notice for the PRS hearing. This assignment of error is without merit.

¶ 13. Pruitt also maintains that due process requires that he should have received a preliminary revocation hearing before the final revocation hearing. An inmate on PRS has a right to a preliminary hearing as soon as practicable after he receives notice that the State intends to pursue revocation. Rusche v. State, 813 So.2d 787, 789–90 (¶ 7) (Miss.Ct.App.2002) (citing Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). Pruitt contends he was denied this right.

¶ 14. The record shows that Pruitt waived his right to arraignment on the second charge of the sale of cocaine, which led to the revocation hearing. At the revocation hearing, Pruitt did not raise this issue. Failure to raise the issue of denial of a preliminary hearing to revoke post-release supervision waives the issue. Hubbard v. State, 919 So.2d 1022, 1027 (¶ 17) (Miss.Ct.App.2005). Therefore, Pruitt is precluded from now raising this issue.

¶ 15. Moreover, even absent waiver, this issue is without merit. Pruitt's argument is premised upon the notion that by denying him a preliminary hearing on the revocation, the State intentionally deprived him of the means to inquire into the charges and evidence that would be introduced against him. Yet Pruitt admits that he prepared for trial on the underlying charge, and he only later complained that he was surprised when the State introduced evidence gathered to prosecute this second charge to revoke his PRS. If he was prepared for trial, as he admits, he could not be unfairly surprised by the very evidence the State would have introduced at trial.

¶ 16. Even if we assumed that the issue was not waived, which we do not, Rusche requires that a person asserting that he failed to receive a preliminary hearing must show some harm stemmed from the denial of the hearing. Rusche, 813 So.2d at 790–91 (¶ 13). See also Roach v. State, 938 So.2d 863, 866 (¶ 5) (Miss.2006). Pruitt fails to show that he was prejudiced. Accordingly, there is no merit to this issue.

II. Discovery

¶ 17. Pruitt also contends that: he was denied a right to conduct discovery in preparation of a defense to the allegations leading to the revocation of his PRS, and he was prejudiced by the State's decision to proceed only on the revocation of his PRS. Pruitt did not raise these issues at the revocation hearing, and we note that he was represented by counsel at the hearing. In fact, the circuit judge explicitly asked if the attorney's understanding was that they were in court that day to nolle prosequi the second charge for sale of cocaine and proceed on the PRS revocation. Pruitt's attorney responded: "Yes sir."

¶ 18. Moreover, Pruitt cites no authority for the proposition that he had any right to discovery in a revocation hearing. We have consistently held that arguments "unsupported...