Williams v. State

• Decision Date: 15 February 2022
• Docket Number: 2020-CP-00950-COA
• Parties: Alfred WILLIAMS, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

334 So.3d 177

Alfred WILLIAMS, Appellant

v.STATE of Mississippi, Appellee

NO. 2020-CP-00950-COA

Court of Appeals of Mississippi.

February 15, 2022

ATTORNEY FOR APPELLANT: ALFRED WILLIAMS (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Alfred Williams appeals from the Lamar County Circuit Court's denial of post-conviction collateral relief (PCR). After review, we reverse the circuit court's judgment and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2. In August 2011, Williams was convicted of fondling and was sentenced to fifteen years, with seven years to serve, in the custody of the Mississippi Department of Corrections with eight years of post-release supervision (PRS).

¶3. In March 2019, a field officer signed an "Affidavit of Violation of Post Release." According to the officer, Williams violated the following conditions of his PRS:

[Condition] (A) Commit no offense against the laws of this [or] any other state of the United States, or laws of the United States: Offender was arrested by the Hattiesburg Police Department for Possession of a Controlled Substance (Marijuana) with Intent to Distribute.

Condition (L) Defendant shall pay all fines, fees, restitution, and all costs of court and assessment ar[e] to be paid at a minimum of $100.00 per month beginning (30) days from the date of this order: Offender [has] never paid anything to the court. He ow[e]s the Lamar Court 2458.00.

¶4. At a hearing in May 2019, the following colloquy occurred:

COURT: Alfred Williams. Mr. Williams, do you understand why you're here today?

WILLIAMS: Yes, sir.

COURT: Okay, I remember you Mr. Williams. You were originally convicted of [fondling]. You've now been arrested for possession ... with intent to distribute; is that correct?

WILLIAMS: Yes, sir.

COURT: I'm not asking you whether you're guilty or not guilty. Can you perhaps give me some kind of statement that would help me make a decision?

WILLIAMS: Yes, sir. That won't ever happen again, possession with intent. I'm sorry. I ask the [c]ourt to have mercy on me, and I'm sorry. I guess I had a stroke since I've been out of prison, and I do go home and stay out of trouble. I don’[t] smoke, drink or do drugs. I'm asking, Your Honor, have mercy [on] me and reinstate my probation and give me another chance.

After a short recess the court stated:

Mr. Williams, my final decision has been made. I've reconsidered your sentence, and based on the new arrest of possession -- I had intended to give you the remainder five years to serve the remainder of your probation, and that'll be the sentence of the Court today. You're dismissed.

¶5. Subsequently, the court entered an "Order of Revocation of Post Release." The order noted that Williams had violated the conditions of his PRS when (1) he was arrested by the Hattiesburg Police Department for possession of a controlled substance (marijuana) with intent to distribute, and (2) he failed to pay the court $2,458. Ultimately, the court revoked Williams' PRS and ordered him to serve the remaining five years of the eight years of his PRS.

¶6. At some point, the district attorney decided to nolle prosequi Williams' drug-possession charge. As a result, in June 2020, over a year after the May 2019 hearing, Williams filed a motion for reconsideration of his recommitment sentence. Williams asked the court to reinstate his period of PRS in light of the district attorney's decision to nolle prosequi the charge that had resulted in his PRS revocation. The court initially denied Williams' motion for reconsideration. However, a couple of weeks later, the court vacated its order. The court held that Williams' motion should have been considered a PCR motion and ordered the State to respond to Williams' motion.

¶7. In its response, the State asserted that Williams admitted to the arresting officer that he sold marijuana in order to afford his own place to live. Additionally, the State represented that a probation officer executed an affidavit stating that Williams had failed to make payments toward his fines, fees, or restitution and still owed the Lamar County Circuit Court at least $2,458. Therefore, the State argued that Williams' motion should be denied.¹

¶8. The court entered an order denying post-conviction relief on August 18, 2020. The court noted that the sole issue was whether Williams' PRS should be reinstated in light of the district attorney's decision to nolle prosequi the charge that resulted in Williams' PRS revocation. Ultimately, the court found that although the district attorney decided not to pursue the drug-possession charge, Williams had confessed to the crime during the revocation hearing. Therefore, the court held that reasonable grounds existed to find Williams violated the conditions of his PRS.

¶9. Subsequently, Williams filed a document that the circuit court treated as a notice of appeal.² On appeal, Williams seemingly claims (1) the court erred by revoking his PRS, (2) the court failed to revoke his PRS within thirty days, (3) his double jeopardy rights were violated when his PRS was revoked, and (4) the court imposed an illegal sentence when he was initially sentenced in August 2011 to eight years of PRS.³

STANDARD OF REVIEW

¶10. "When reviewing a [circuit] court's denial or dismissal of a PCR motion, we will only disturb the [circuit] court's decision if it is clearly erroneous; however, we review the [circuit] court's legal conclusions under a de novo standard of review." Williams v. State , 228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017) (quoting Thinnes v. State , 196 So. 3d 204, 207-08 (¶10) (Miss. Ct. App. 2016) ).

DISCUSSION

¶11. Under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), Williams had three years to file a PCR motion. Miss. Code Ann. § 99-39-5(2) (Rev. 2020). However, excepted from the three-year statute of limitations are those cases in which the petitioner can demonstrate that his probation, parole, or conditional release has been unlawfully revoked. Id . § 99-39-5(2)(b).

I. Revocation

¶12. Williams claims that the court erred by denying post-conviction relief. More specifically, Williams argues that the court should have reinstated his period of PRS because the district attorney ultimately decided to nolle prosequi the charge that was used to revoke his PRS.

¶13. As set forth by statute and our rules of criminal procedure, "[a] hearing to determine whether probation should be revoked shall be held before the sentencing court ...." MRCrP 27.3(a) ; see Miss. Code Ann. § 47-7-37 (Supp. 2018). "[A] probationer may waive the hearing ... and the sentencing court may make a final disposition of the issue, if: (1) the probationer has been given sufficient notice of the charges and sufficient notice of the evidence to be relied upon; and (2) the probationer admits, under the requirements of Rule 27.3(e), commission of the alleged violation." MRCrP 27.3(b). The requirements of Rule 27.3(e) are as follows:

Before accepting an admission by a probationer that the probationer has violated a condition of probation or a lawful instruction issued by the supervising officer, the court shall determine that the probationer understands the following:

(1) the nature of the violation to which an admission is offered;

(2) the right to be represented by counsel as provided by Rule 27.3(d) ;

(3) the right to testify and to present witnesses and other evidence on the probationer's own behalf and to cross-examine adverse witnesses under subsection (f)(1); and

(4) that, if the alleged violation involves a criminal offense for which the probationer has not yet been tried, the probationer may still be tried for that offense and, although the probationer may not be required to testify, that any statement made by the probationer at the present proceeding may be used against the probationer at a subsequent proceeding or trial.

The court shall also determine that the probationer waives these rights, that the admission is voluntary and not the result of force, threats, coercion, or promises, and that there is a factual basis for the admission.

"Proceedings to revoke ... [a] period of post-release supervision shall be conducted in accordance with Rule 27." MRCrP 27.4.⁴

¶14. Assuming the person on PRS does not waive the hearing, the court may revoke a person's PRS and impose any or all of the sentence if the court "finds by a preponderance of the evidence, that ... [the] person under post-release supervision has committed a felony or absconded." Miss. Code Ann. § 47-7-37.1. "[T]he mere arrest of a probationer is not a violation of probation." Elkins v. State , 116 So. 3d 185, 188 (¶12) (Miss. Ct. App. 2013) (quoting Brown v. State , 864 So. 2d 1058, 1060 (¶9) (Miss. Ct. App. 2004) ). "[W]hen alleged criminal activity is the basis for revocation, the State ‘must show proof of an actual conviction, or that a crime has been committed and that it is more likely than not that the probationer committed the offense.’ " Lewis v. State , 291 So. 3d 398, 400 (¶8) (Miss. Ct. App. 2020) (quoting Brown , 864 So. 2d at 1060 (¶9) ).

¶15. The entirety of the revocation hearing is transcribed below:

COURT: Alfred Williams. Mr. Williams, do you understand why you're here today?

WILLIAMS: Yes, sir.

COURT: Okay, I remember you, Mr. Williams. You were originally convicted of [fondling]. You've now been arrested for possession ... with intent to distribute; is that correct?

WILLIAMS: Yes, sir.

COURT: I'm not asking you whether you're guilty or not guilty. Can you perhaps give me some kind of statement that would help me make a decision?

WILLIAMS: Yes, sir. That won't ever happen again, possession with intent. I'm sorry. I ask the [c]ourt to have mercy on me, and I'm sorry. I guess I had a stroke since I've been out of prison, and I do go home and stay out of trouble. I don’[t] smoke, drink or do drugs. I'm asking, Your Honor, have mercy [on] me and

...