Smith v. State

• Decision Date: 10 November 2015
• Docket Number: No. 2014–CA–00446–COA.,2014–CA–00446–COA.
• Court: Mississippi Court of Appeals
• Parties: Antonio Vashon SMITH a/k/a Antonio V. Smith a/k/a Antonio Smith, Appellant v. STATE of Mississippi, Appellee.

196 So.3d 986

Antonio Vashon SMITH a/k/a Antonio V. Smith a/k/a Antonio Smith, Appellant

v.STATE of Mississippi, Appellee.

No. 2014–CA–00446–COA.

Court of Appeals of Mississippi.

Nov. 10, 2015.

Rehearing Denied April 19, 2016.

James A. Williams, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before GRIFFIS, P.J., BARNES and JAMES, JJ.

JAMES

, J., for the Court:

¶ 1. Antonio Vashon Smith appeals the dismissal of his postconviction-relief (PCR) motion by the Clarke County Circuit Court. Finding no error, we affirm the circuit court's judgment of dismissal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 22, 2006, Smith was indicted on one count of sexual battery, in violation of Mississippi Code Annotated section 97–3–95(1)(d)

(Rev.2014), and one count of fondling, in violation of Mississippi Code Annotated section 97–5–23(1) (Rev.2014). On July 19, 2006, Smith filed a petition to enter a plea of guilty to the fondling charge, but maintained his innocence under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). As part of the plea agreement, the sexual-battery count was dismissed. The same day, the circuit court conducted a plea hearing and accepted Smith's guilty plea. The circuit court accepted the recommendation of the State and sentenced Smith to ten years, with all ten years suspended and five years of supervised probation. Smith was given credit for five days of pretrial incarceration and was ordered to pay a total of $1,269.50 in court assessments as well as a probation-supervision fee at the rate of $45 per month.

¶ 3. On March 29, 2007, Smith's probation officer filed an affidavit stating that Smith violated his probation for failing to register as a sex offender. After being continued, a revocation hearing was held in circuit court on August 29, 2007. Smith was represented again by his trial counsel at the hearing. Smith's probation officer testified that Smith was scheduled to reregister on February 5, 2007, and as of March 6, 2007, the date of his arrest, he had not reregistered. Smith admitted that he failed to reregister as a sex offender and that he knew it was a violation of his probation. Smith testified that he failed to register because it “slipped my mind.” The circuit court revoked Smith's probation and ordered Smith to serve one year in the custody of the Mississippi Department of Corrections (MDOC). Smith was given credit for 182 days of pretrial incarceration. The order revoking probation stated: “If [Smith] fails to strictly abide by [the] probation terms[,] then he will be subject to revocation of the remaining Nine (9) years of his original Ten (10) year sentence.” The order also provided that Smith's probation would end in July 2011. The State chose not to pursue Smith's failure to register as a separate crime.

¶ 4. On August 6, 2009, Smith's probation officer filed a petition to revoke Smith's probation because Smith failed to register as a sex offender on two occasions. The petition provided that despite Smith being warned twice not to let his sex-offender registration expire, it expired in April 2009 and August 2009. The petition also stated that Smith failed to pay court assessments of $1,269.50 and supervision fees, which were $551 in arrears.

¶ 5. On September 1, 2009, the circuit court held a revocation hearing. Smith was not represented by counsel at the hearing. Smith informed the court that he violated the terms of probation because he “went through a lot.” Specifically, he claimed he was depressed, did not have transportation, had a suspended license, and could not find employment. After hearing testimony from Smith's probation officer and arguments from Smith, the circuit court found that Smith had violated each of the conditions identified by his probation officer. The circuit court revoked Smith's probation, and ordered him to serve the remaining balance of his suspended sentence in the custody of MDOC, with credit given for twenty-three days of pretrial incarceration.

¶ 6. On December 18, 2012, Smith filed a PCR motion alleging various grounds for relief. On February 26, 2013, the circuit court entered an opinion and order summarily dismissing Smith's PCR motion. The circuit court found that Smith's PCR motion alleged an exception to the three-year statute of limitations under Mississippi Code Annotated section 99–39–5(2)(b)

(Rev.2015). The circuit court found that “excepted from this three-year statute of limitations ‘are those cases in which the [movant] claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked[.]’ ” For that reason, the circuit court addressed the merits of Smith's claims and found each one to be meritless.

¶ 7. On appeal, Smith raises the following issues: (1) whether the second revocation hearing subjected him to double jeopardy; (2) whether he was entitled to an evidentiary hearing; (3) whether he was denied effective assistance of counsel.

Smith also attacked the voluntariness of his plea, which the circuit court addressed, as will this Court. Finding no error, we affirm the circuit court's dismissal of Smith's PCR motion.

STANDARD OF REVIEW

¶ 8. When reviewing a circuit court's denial or dismissal of a PCR motion, we will only disturb the circuit court's factual findings if they are clearly erroneous. Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss.2010)

. Questions of law are reviewed de novo. Id. Mississippi Code Annotated section 99–39–11(2) (Rev.2015) states: “If 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, the judge may make an order for its dismissal and cause the petitioner to be notified.” “This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Dickens v. State, 119 So.3d at 1141, 1143–44 (¶ 6) (Miss.Ct.App.2013) (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009) ).

DISCUSSION

I. Whether Smith was subjected to double jeopardy.

¶ 9. Smith argues that he is denied due process and fundamental fairness because he was subjected to double jeopardy when the circuit court revoked his probation for a second time and reinstated the remaining balance of his originally suspended ten-year sentence. We will address the merits of Smith's claim because he argues that his probation was unlawfully revoked, which is an exception to the three-year statute of limitations for filing a PCR motion under section 99–39–5(2)(b)

.

¶ 10. “It is well settled in Mississippi that courts have the authority to reinstate any sentence that was previously suspended.” Edwards v. State, 123 So.3d 936, 938 (¶ 6) (Miss.Ct.App.2013)

(citing Pruitt v. State, 953 So.2d 302, 305 (¶ 8) (Miss.Ct.App.2002) ). Mississippi Code Annotated section 47–7–37(5)(a) (Rev.2015) provides in pertinent part:

The probation and parole officer after making an arrest shall present to the detaining authorities a similar statement of the circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Within twenty-one (21) days of arrest and detention by warrant as herein provided, the court shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence.

Id. (emphasis added).

¶ 11. Smith failed to abide by a condition of his probation by failing to register. Upon revocation, a portion of his suspended sentence was reinstated. Following his release from incarceration, while Smith was on probation, Smith again failed to abide by the conditions of his probation. For that reason, the circuit court revoked Smith's probation. The circuit court ordered Smith to be reincarcerated for the remaining balance of his suspended sentence as authorized by section 47–7–37(5)(a)

. The circuit court was vested with discretion to revoke and reinstate the remaining portion of Smith's suspended sentence. Agent v. State, 30 So.3d 370, 374 (¶ 11) (Miss.Ct.App.2010) (holding that the trial judge has the discretion to impose a lesser sentence, but also has the authority to reinstate the entire sentence under section 47–7–37

). The circuit court did not resentence Smith, nor did it lengthen his original sentence upon the second revocation. Instead, the circuit court reinstated the remaining balance of the suspended portion of his sentence. Accordingly, this issue is without merit.

II. Whether Smith was entitled to an evidentiary hearing.

¶ 12. Smith argues that he was denied due process and fundamental fairness because he was denied an evidentiary hearing on his PCR motion. In support of this argument, Smith claims that (1) he was not informed that his sentence would be served day-for-day; (2) his probation officer told him at the hearing that he would speak up for him at the hearing, but did not; and (3) the circuit court erred in concluding that he did not pay any of his fines and fees. We disagree.

¶ 13. The circuit court may dismiss a PCR motion, without having held an evidentiary hearing, when it is clear that the movant is not entitled to relief under the Uniform Post–Conviction Collateral Relief Act (UPCCRA). State v. Santiago, 773 So.2d 921, 923–24 (¶ 11) (Miss.2000)

. “A [circuit court] enjoys wide discretion in determining whether to grant an evidentiary hearing.” Williams v. State, 4 So.3d 388, 392 (¶ 11) (Miss.Ct.App.2009) (citing Hebert v. State, 864 So.2d 1041, 1045 (¶ 11) (Miss.Ct.App.2004) ). “A post-conviction claim for relief is properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit.” Id. (citing Holland v. State, 956 So.2d 322, 326 (¶ 7)...