Sinko v. State

• Decision Date: 12 April 2016
• Docket Number: No. 2015–CA–00107–COA.,2015–CA–00107–COA.
• Citation: 192 So.3d 1069
• Court: Mississippi Court of Appeals
• Parties: Nathan SINKO a/k/a Nathan C. Sinko, Appellant v. STATE of Mississippi, Appellee.

192 So.3d 1069

Nathan SINKO a/k/a Nathan C. Sinko, Appellant

v.STATE of Mississippi, Appellee.

No. 2015–CA–00107–COA.

Court of Appeals of Mississippi.

April 12, 2016.

Rehearing Denied June 14, 2016.

Jim Waide, Tupelo, attorney for appellant.

Office of the Attorney General by Barbara Wakeland Byrd, Anthony Louis Schmidt Jr., attorneys for appellee.

Before IRVING, P.J., FAIR and WILSON, JJ.

WILSON

, J., for the Court:

¶ 1. In May 2012, Nathan Sinko pled guilty to manufacturing and possessing methamphetamine. Under the statutes in effect at the time of Sinko's plea and sentencing, his conviction for manufacturing a controlled substance other than marijuana rendered him ineligible for parole. Indeed, this Court made this point clear in McGovern v. Miss. Department of Corrections, 89 So.3d 69 (Miss.Ct.App.2011)

. Nonetheless, for reasons that have not been explained, prior to and continuing well after McGovern, the Mississippi Department of Corrections (MDOC) classified Sinko and other offenders convicted of manufacturing or selling a controlled substance other than marijuana as parole eligible. Accordingly, MDOC continued to assign parole eligibility dates to these offenders, and the Parole Board continued to grant them parole. It appears that this continued for at least two and a half years after the McGovern decision. Thus, when Sinko entered MDOC custody in 2012, MDOC gave him a parole eligibility date, which was adjusted over time. In July 2014, Sinko received an “Action of the Parole Board,” dated July 8, 2014, that indicated that he would be paroled on September 22, 2014. However, before he was paroled, MDOC informed Sinko that he was not eligible for parole, apparently because MDOC was attempting to comply, belatedly, with the statutes that this Court interpreted in McGovern. Sinko challenged MDOC's determination by filing a motion for post-conviction relief (PCR) in circuit court. After the circuit court denied his motion, he appealed.

¶ 2. On appeal, Sinko argues that legislation enacted in 2014 made him eligible for parole, even though the statutes in effect at the time of his plea and sentencing provided that he was ineligible. Sinko also argues that by depriving him of parole eligibility based on an “arbitrarily selected ‘cut-off date,’ ” MDOC violated his rights under the Equal Protection Clause and the Due Process Clause. Finally, Sinko argues that his 2011 guilty plea was involuntary because the court did not inform him that he would be ineligible for parole. For the reasons discussed below, we conclude that based on the changes to the law effective July 1, 2014, Sinko's conviction for manufacturing methamphetamine does not render him ineligible for parole. We do not hold that Sinko is entitled to be paroled; that is a decision for the Parole Board. We hold only that his conviction for manufacturing methamphetamine does not render him ineligible. Because we decide the case on statutory grounds, we do not address Sinko's constitutional claims.

FACTS AND PROCEDURAL HISTORY

¶ 3. In July 2011, the Oktibbeha County grand jury returned a three-count indictment charging Sinko with manufacturing methamphetamine in violation of Mississippi Code Annotated section 41–29–139

(Rev.2009) (Count I); possessing more than thirty grams of methamphetamine in violation of section 41–29–139 (Count II); and generating waste in connection with the manufacturing of methamphetamine in violation of Mississippi Code Annotated section 49–17–603 (Supp.2011) (Count III). On May 2, 2012, Sinko pled guilty to Count I and Count II. In exchange, the State dropped Count III.

¶ 4. At Sinko's plea hearing, the circuit judge questioned Sinko thoroughly and found that his plea was knowing and voluntary. As the factual basis for the plea, the State reported that in March 2011 Sinko's father-in-law alerted the sheriff's department that Sinko was operating a meth lab in a shed behind Sinko's home. Deputies investigated and found Sinko in possession of a cooler with several bottles “found to have a mixture of things in the middle of a methamphetamine cook.” Nine bottles submitted to the crime lab were found to contain a total of 172.1 grams of methamphetamine.

¹ On Count I, the court sentenced Sinko to twelve years in MDOC custody, a $5,000 fine, and five years of post-release supervision. On Count II, the court sentenced him to twelve years in MDOC custody and a $5,000 fine, with the sentence to run concurrently to the sentence on Count I.

¶ 5. On September 23, 2014, Sinko filed a pro se PCR motion. Sinko alleged that he pled guilty with the understanding that he would be eligible for parole, and that he was given and had always had a parole eligibility date “up to a few weeks ago,” but that his “parole date [had been] taken away.” Sinko asked the court to “ORDER [his] parole date to be placed back or allow [him] any type of [PCR].”

¶ 6. Sinko subsequently obtained counsel, and on November 13, 2014, he filed a new PCR motion. In his new PCR motion, Sinko alleged that he had been “set to be released [on September 22, 2014,] after being granted parole on July 8, 2014.” In support, Sinko submitted an “Action of the Parole Board” that appears to reflect a decision of the Parole Board to that effect. Sinko also submitted MDOC “Inmate Time Sheets” that he received in 2012, 2013, and 2014, each reflecting a parole eligibility date. Sinko alleged that sometime after July 8, 2014, but before he was paroled, MDOC informed him that he was ineligible for parole under Mississippi Code Annotated section 47–7–3

, as interpreted in McGovern, supra. Sinko alleged that until MDOC abruptly declared him ineligible for parole, similarly situated offenders had been deemed parole eligible and paroled as a result of MDOC's prior “misinterpretation of the law.” Sinko alleged that MDOC's decision to correct its “misinterpretation” effective on an arbitrary “ ‘cut-off’ date” violated his rights to equal protection and due process. Sinko asked the court “to set [ ] his sentence aside” and “sentence him to time served.”

¶ 7. On December 8, 2014, the circuit judge dismissed Sinko's PCR petition. The court ruled that it was without jurisdiction to reconsider or amend Sinko's sentence and that Sinko “failed to establish any claim which would warrant [PCR].” Sinko filed a timely notice of appeal.

DISCUSSION

¶ 8. As stated in the introduction to this opinion, we conclude that based on statutory amendments that went into effect on July 1, 2014, Sinko's conviction for manufacturing methamphetamine does not render him ineligible for parole. However, in the circuit court, Sinko failed to make this argument and failed to request appropriate relief. Accordingly, we must first consider whether the issue is properly before this Court.

I. Whether Sinko's claim that he is eligible for parole is properly before this Court.

¶ 9. In his first issue on appeal, Sinko argues that a PCR motion is a proper vehicle to challenge MDOC's determination that he is ineligible for parole. The State agrees with him, and we do too. See Keys v. State, 67 So.3d 758, 759–60 (¶¶ 6–9) (Miss.2011)

(holding that a PCR motion is a proper vehicle for challenging a parole-eligibility determination).

¶ 10. A more difficult procedural issue is that Sinko's claim that he is eligible for parole plainly does not entitle him to the relief that he requested in the second or amended PCR motion that he filed in the circuit court, which was to have his sentence set aside and to be re-sentenced to time served.² Moreover, in the circuit court Sinko did not raise the statutory argument that he now advances on appeal. At oral argument, Sinko's appellate counsel, who is not the same attorney who represented him in the circuit court, candidly conceded these points. He acknowledged that the “proper relief was not requested” in the circuit court and that this Court “certainly” could affirm for that reason alone.

¶ 11. This is a problem for Sinko because a “trial judge cannot be put in error on a matter which was not presented to him for decision.” Green v. State, 183 So.3d 28, 30–31 n. 1 (Miss.2016)

(quoting Holmes v. State, 798 So.2d 533, 534 (¶ 16) (Miss.2001) ).³ The only matter presented to the circuit judge for decision in this case was whether Sinko was entitled to have his sentence set aside and to be re-sentenced to time served on constitutional grounds. The circuit judge committed no error by ruling that he was not.

¶ 12. By failing to raise certain issues and request the proper relief in the circuit court, Sinko clearly waived the right to raise those issues on appeal. But Sinko's waiver does not deprive this Court of jurisdiction or discretion to decide those issues. On appeal, both Sinko and the State have briefed and ably argued the merits of the question whether he is eligible for parole as a result of statutory amendments that went into effect on July 1, 2014. On that issue, the record requires no further development. Moreover, the record suggests that if Sinko's interpretation of the 2014 amendments is correct, he should have been released on parole over eighteen months ago. Under these circumstances, it would be unjust to require Sinko to start over in a new circuit court action or administrative proceeding. Moreover, the issue is an important one that deserves prompt resolution. At oral argument, the State agreed with Sinko that there will be “numerous other appeals raising this same issue,” which appears to affect potentially hundreds of inmates. In the interest of judicial economy, we have discretion to address such issues on appeal even if they were waived and never properly presented to the trial court. See, e.g., Tinnon v. Martin, 716 So.2d 604, 613–14 (¶¶ 52

, 57–58) (Miss.1998); Fordice v. Bryan, 651 So.2d 998, 1001 (Miss.1995) ; State Hwy. Comm'n of Miss. v. McDonald's Corp., 509 So.2d 856, 860, 863 (Miss.1987). Accordingly, we will address Sinko's contention that he is eligible for parole notwithstanding his waiver.

...