Christopher S. Sobrado a/k/a Christopher Steven Sobrado a/k/a Chris v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2012-CP-00484-COA
CHRISTOPHER S. SOBRADO A/K/A
CHRISTOPHER STEVEN SOBRADO A/K/A
CHRIS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
REHEARING:
APPELLEE
04/09/2012
HON. PAUL S. FUNDERBURK
PONTOTOC COUNTY CIRCUIT COURT
CHRISTOPHER S. SOBRADO (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CIVIL – POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
REVERSED AND REMANDED – 09/10/2013
GRANTED; REVERSED AND REMANDED
– 02/18/2014
MANDATE ISSUED:
EN BANC.
ROBERTS, J., FOR THE COURT:
MODIFIED OPINION ON REHEARING
¶1.
Acting on its own motion, this Court grants rehearing in this matter, withdraws its
prior opinion, and substitutes this opinion in its place.
¶2.
This case centers on a circuit court’s authority to reinstate a prisoner’s suspended
sentence based on misconduct that occurred while he was still serving his initial ten-year
sentence as an inmate under the supervision of the Mississippi Department of Corrections
(MDOC). Christopher Sobrado appeals the Pontotoc County Circuit Court’s judgment
summarily dismissing his motion for post-conviction relief (PCR) after the circuit court
ostensibly revoked his post-release supervision and reinstated the suspended portion of his
sentence for burglary of a dwelling. Because the record on appeal does not clearly indicate
whether the conduct that led to the circuit court’s decision occurred while Sobrado was still
an inmate on earned-release supervision (ERS) or whether he had been officially discharged
from his ten-year sentence and placed on post-release supervision, we reverse the circuit
court’s judgment and remand this matter for an evidentiary hearing as described below.
FACTS AND PROCEDURAL HISTORY
¶3.
Sobrado was indicted for two counts of burglary of a dwelling. The prosecution and
Sobrado negotiated a plea agreement that the prosecution would “retire” one burglary charge
in exchange for Sobrado’s guilty plea to the second burglary charge. The plea agreement
was also contingent upon Sobrado’s payment of restitution to both of the burglary victims.
¶4.
On April 10, 2003, Sobrado went before the circuit court and pled guilty to the second
count of burglary of a dwelling.1 The circuit court accepted Sobrado’s guilty plea and
followed the prosecution’s sentencing recommendation. Specifically, the circuit court
sentenced Sobrado to twenty-five years in the custody of the MDOC, with fifteen years
suspended and ten years to serve, followed by five years of post-release supervision.2
¶5.
Additionally, the circuit court ordered Sobrado to pay restitution to the two burglary
1
The file before the circuit court bore the cause number CR02-144.
2
The circuit court set Sobrado’s sentence to run concurrently with sentences that he
had received incident to four previous convictions.
2
victims. To ensure that Sobrado complied with his restitution obligation, the circuit court
told Sobrado, “Upon completion of your sentence, you will be placed on five years [of] postrelease supervision, [and] you will be placed in a restitution center as designated by the
[MDOC] until all fines, cost[s,] and restitution are paid.” In the circuit court’s subsequent
sentencing order, the circuit court specified the conditions of Sobrado’s post-release
supervision.3
Among other conditions, the circuit court reserved the right to revoke
Sobrado’s post-release supervision if Sobrado failed to pay restitution to the victims. The
circuit court further ordered that during Sobrado’s term of post-release supervision, he “shall
be transported to the restitution center to successfully complete and pay all cost[s], fines, and
restitution.”
¶6.
On January 16, 2008, Sobrado was reclassified by the MDOC and placed on ERS.4
As an MDOC inmate, Sobrado was sent to the Hinds County Restitution Center. In February
2008, Sobrado began working at two restaurants. Sobrado was obligated to tender his
paychecks to the restitution center, but he failed to tender approximately $2,800 of his
earnings. Sobrado was later transferred to two other restitution centers, where he tendered
all of his paychecks to the MDOC. Based on the record, it appears that Sobrado spent
3
We note that the circuit court specifically ordered that Sobrado was jointly and
severally liable to pay one burglary victim $7,293.37. However, the circuit court’s
sentencing order did not specify that Sobrado was jointly and severally liable to pay $1,850
to the other burglary victim.
4
Sobrado’s MDOC time sheet is in the record, and it indicates that his maximum
discharge date was October 16, 2013. His time sheet further indicates that his earliest
possible ERS release date was December 9, 2007. His tentative discharge date, assuming
that he satisfactorily participated in ERS, was June 21, 2009. He earned a total of three years
and 282 days of earned time as a trusty. He also earned 140 days of meritorious earned time
to reduce his initial ten-year sentence.
3
seventeen months in various restitution centers. Through June 2009, Sobrado had deposited
a total of approximately $9,200 toward his restitution. After deducting for his room and
board and his personal allowance, Sobrado’s restitution account contained approximately
$4,200.
¶7.
On June 19, 2009, he was fired from his job at Wendy’s. Two days later, he was
written up for “disobeying a direct order of a[n MDOC] staff member.” On June 22, 2009,
MDOC Field Officer Fannie Tonth signed a “warrant for [Sobrado’s] arrest [for] violation
of [his] probation.” According to Officer Tonth, Sobrado “violated the terms of [his] order
of probation” when he: (a) was fired from his job on June 19, 2009; (b) refused to obey an
order to wake up and clean his area on June 21, 2009; and (c) when he requested to sign out
of the restitution center on June 22, 2009.
¶8.
According to Officer Tonth’s violation-report form, the MDOC discharged Sobrado
from ERS on June 21, 2009.5
At that time, Sobrado began his term of post-release
supervision. In other words, on June 21, 2009, Sobrado appears to have been officially
discharged from his initial ten-year sentence. However, the record does not contain what has
been described as a “gold certificate of discharge” from the MDOC.
¶9.
On July 7, 2009, the State filed a petition to revoke Sobrado’s post-release supervision
and impose the suspended portion of the circuit court’s sentence. The next day, the circuit
court conducted a hearing on the State’s petition. Based on Sobrado’s allegations that there
were discrepancies between his earnings and his deposit account while he was on ERS, the
5
That date matches the date of Sobrado’s tentative discharge date on his MDOC time
sheet.
4
circuit court continued the hearing until September 11, 2009, so Joe Cotton, the MDOC
director of accounting, could testify and reconcile the discrepancies. Cotton later testified
that the discrepancies were related to the fact that Sobrado simply cashed some of his
paychecks during 2008, and he did not tender them to the restitution center.
¶10.
Ultimately, the circuit court concluded that Sobrado more likely than not violated the
terms of his post-release supervision by failing to abide by the rules of the restitution center.
As a result, the circuit court reinstated the fifteen-year portion of Sobrado’s suspended
sentence. However, the circuit court suspended five years of that sentence and required
Sobrado to serve ten more years in MDOC custody, followed by five years of post-release
supervision.
¶11.
In August 2011, Sobrado filed a PCR motion attacking the validity of the circuit
court’s revocation of his post-release supervision incident to case number CR02-144.
Among other issues, Sobrado claimed the circuit court lacked jurisdiction to revoke his postrelease supervision and reinstate the previously suspended portion of his sentence. He also
claimed that his post-release supervision was unlawfully revoked. Without requiring a
response from the State, the circuit court “denied” Sobrado’s PCR motion.6 Sobrado appeals.
STANDARD OF REVIEW
¶12.
“This Court will not disturb a [circuit] court’s dismissal of a [PCR motion] unless the
[circuit] court’s decision was clearly erroneous.” Wardley v. State, 37 So. 3d 1222, 1223-24
6
Because the circuit court disposed of Sobrado’s PCR motion without requiring a
response from the State, the circuit court’s disposition is more accurately characterized as
a summary dismissal of Sobrado’s PCR motion than a denial.
5
(¶4) (Miss. Ct. App. 2010). A circuit court “may summarily dismiss a PCR motion where
‘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.’” White v. State, 59 So.
3d 633, 635 (¶4) (Miss. Ct. App. 2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp.
2010)). Questions of law receive a de novo review. Id.
ANALYSIS
¶13.
Sobrado claims that the circuit court erred when it revoked his post-release
supervision. He further argues that the circuit court had no authority to revoke his postrelease supervision for conduct that occurred while he was on ERS.7
¶14.
Based on various statutory mechanisms that may operate to reduce the time that an
offender must remain incarcerated for a felony sentence, Sobrado was “released” from prison
after he had served approximately four and one-half years of the circuit court’s initial tenyear sentence for burglary of a dwelling. As required by Mississippi Code Annotated section
47-5-138(6) (Supp. 2013), the MDOC placed Sobrado on ERS. Notwithstanding Sobrado’s
“release” from incarceration, while he was on ERS, he “retain[ed] inmate status and
7
Sobrado’s appellate brief contains no authority to support his claim. Ordinarily, the
failure to cite authority in support of an argument on appeal renders an issue procedurally
barred. See M.R.A.P. 28(a)(6). However, Sobrado cited authority in the brief he filed in
support of his PCR motion. Furthermore, “[w]here, as here, a prisoner is proceeding pro se,
we take that fact into account and, in our discretion, credit not so well[-]pleaded allegations
. . . [so] that a prisoner’s meritorious complaint may not be lost because [it was] inartfully
drafted.” Myers v. State, 583 So. 2d 174, 176 (Miss. 1991). Based on the precise
circumstances of this case and the issues presented within it, we decline to find that this issue
is procedurally barred. However, we caution pro se litigants that the failure to include
authority in support of an argument on appeal will likely result in our finding that such an
argument is procedurally barred.
6
remain[ed] under” the MDOC’s jurisdiction. Miss. Code Ann. § 47-5-138(6). To remain an
inmate on ERS, Sobrado was obligated to observe certain conditions set by the MDOC. Id.
¶15.
ERS is operated exclusively by the MDOC, with no involvement by circuit courts.
Violations of ERS conditions are only reported to the MDOC. See Miss. Code Ann. § 47-727(3) (Supp. 2013). MDOC “hearing officers” will then conduct revocation hearings. Miss.
Code Ann. § 47-5-138(6). If a hearing officer finds that an inmate violated ERS conditions
and revokes the inmate’s ERS, the inmate “shall serve the remainder of the sentence,” with
credit for the time he was on ERS. Miss. Code Ann. § 47-5-138(7) (Supp. 2013). For
reasons that are not apparent in the record, the MDOC took no steps to revoke Sobrado’s
ERS for violating the rules and regulations of the restitution center.
¶16.
Post-release supervision is significantly different than ERS. Circuit courts have the
exclusive authority to sentence qualified offenders to a term of post-release supervision. See
Miss. Code Ann. § 47-7-34(1) (Rev. 2011). Circuit courts set the conditions that an offender
must follow while he is on post-release supervision. Miss. Code Ann. § 47-7-37 (Rev. 2011).
Violations of those conditions are reported to the circuit court. Id. And the circuit court
conducts revocation hearings when there are allegations that an offender on post-release
supervision violated the circuit court’s conditions. Id. Finally, the circuit court has the sole
authority to revoke an offender’s post-release supervision for violations occurring while an
offender is on post-release supervision and “impose any part of the sentence [that] might
have been imposed at the time of conviction.” Id. Suffice it to say, while Sobrado was an
inmate on ERS, he could not simultaneously be on post-release supervision. See Jones v.
State, 97 So. 3d 1254, 1258 (¶10) (Miss. Ct. App. 2012).
7
¶17.
Officer Tonth raised three specific claims that Sobrado violated the conditions of his
post-release supervision: (1) when he got fired from his job on June 19, 2009; (2) when he
disobeyed an order to get up and clean his area on June 21, 2009; and (3) when he signed out
of the restitution center on June 22, 2009. The circuit court could only revoke Sobrado’s
post-release supervision for misconduct that occurred while he was actually on post-release
supervision. See Smith v. State, 742 So. 2d 1146, 1148 (¶11) (Miss. 1999). “One cannot
violate a condition of [post-release supervision] that does not [yet] exist.” Id.
¶18.
As previously mentioned, Officer Tonth’s rule-violation report states that the MDOC
discharged Sobrado from ERS on June 21, 2009. After his discharge, Sobrado immediately
began his term of post-release supervision. Thus, the circuit court could not have revoked
Sobrado’s post-release supervision for misconduct that occurred while he was on ERS.
While Sobrado was on ERS, he was classified as an inmate under the exclusive jurisdiction
of the MDOC. See Miss. Code Ann. § 47-5-138(6). A circuit court cannot revoke a term of
post-release supervision for conduct that occurred while a prisoner is an inmate in the
MDOC’s legal custody. Jones, 97 So. 3d at 1258 (¶11). But in Edwards v. State, 946 So.
2d 822, 824 (¶8) (Miss. Ct. App. 2007), this Court affirmed a circuit court’s decision to
revoke an inmate’s post-release supervision for conduct that occurred while the inmate was
on ERS. In so doing, this Court held that “it was immaterial as to whether [a prisoner] was
under [ERS] or post-release supervision at the time he violated the terms of his probation.”
Id. (quoting Grace v. State, 919 So. 2d 987, 989 (¶8) (Miss. Ct. App. 2005)). To the extent
that Edwards allows a circuit court to revoke an inmate’s post-release supervision for
misconduct that occurred while the inmate was on ERS, Edwards is overruled.
8
¶19.
The circuit court held that Sobrado violated the terms of his post-release supervision
by “[f]ail[ing] to complete the [r]estitution [c]enter as ordered. The offender signed himself
out of [the] center [because he] wish[ed] to appear back before the [c]ircuit [c]ourt.” There
was testimony that Sobrado requested to sign out of the restitution center on June 21, 2009.
The record does not indicate whether Sobrado had been discharged from ERS at that time.
However, in the warrant for Sobrado’s arrest for violating his “probation,” Officer Tonth
charged that Sobrado also requested to sign out of the restitution center on June 22, 2009.
But as Sobrado noted during the revocation hearing, there was no documentary proof that
Sobrado had signed out of the restitution center. During the revocation hearing, it was clear
that Sobrado wanted an explanation regarding the discrepancy between the balance of his
restitution account and the amount of money that he had earned while he was housed at
various restitution centers. It is also clear that Sobrado did not understand the nature of his
joint and several liability to pay restitution to the two burglary victims. After hearing the
circuit court’s explanations, Sobrado said, “I’d just like to apologize to the [c]ourt for taking
up its time.” Sobrado then asked the circuit court to give him “another opportunity to pay
[restitution].”
¶20.
The State argues that based on Rodriguez v. State, 839 So. 2d 561 (Miss. Ct. App.
2003), it was permissible for the circuit court to revoke Sobrado’s post-release supervision.
Curtis Rodriguez was convicted of aggravated assault and sentenced to twelve years in the
custody of the MDOC, with eleven years suspended and one year to serve, followed by five
years of “supervised probation.” Id. at 563 (¶2). The circuit court also ordered Rodriguez
to pay restitution to the victim. Id. While Rodriguez was on probation, the circuit court
9
ordered that he be sent to a restitution center. Id. at (¶3). Based on Rodriguez’s violation of
restitution-center rules while he was on probation, the circuit court revoked his probation and
reinstated the previously suspended eleven-year portion of his sentence. Id. at (¶5). This
Court held that there was “adequate evidence to revoke [Rodriguez’s] probation.” Id. at 564
(¶10). But the question in Sobrado’s case is different. The issue is whether Sobrado was an
inmate on ERS when the alleged violations occurred, or whether he had been discharged
from his initial ten-year sentence and placed on post-release supervision with the circuit
court.
¶21.
With utmost respect, the dissent fails to comprehend the issue in this case. Contrary
to the dissent’s claim, this opinion does not question “the validity of the failure to pay
restitution as a basis for revocation of a suspended sentence.” The circuit court specifically
sentenced Sobrado to twenty-five years in the custody of the MDOC, with fifteen years
suspended and ten years to serve, followed by five years of post-release supervision. The
circuit court set conditions that Sobrado must obey during that five-year term of post-release
supervision. There is no question that the circuit court had the authority to set those
conditions of post-release supervision.
¶22.
Sobrado was an inmate in the custody of the MDOC until he was discharged from his
ten-year initial sentence. The circuit court sentenced Sobrado on April 10, 2003. The dissent
is incorrect that there was a “condition to the suspension of his sentence and of his [postrelease supervision].” The dissent further states that “the original sentencing order required
Sobrado to attend the restitution center to complete restitution as a term and condition prior
to receiving his suspended sentence and post-release supervision.” That statement is simply
10
false. The circuit court suspended fifteen years of Sobrado’s sentence on the very day that
he was sentenced. The circuit court did not “conditionally” suspend part of Sobrado’s
sentence; the circuit court unequivocally suspended fifteen years of his sentence. If Sobrado
was to violate the conditions of his post-release supervision during the five-year period that
he was actually on post-release supervision, then the circuit court could revoke the entire
fifteen years of Sobrado’s suspended sentence. Terminology is important. The suspended
portion of Sobrado’s sentence was not “conditionally” suspended based on some not-yetdetermined future event, such as successful completion of the restitution center.
¶23.
The outcome-determinative issue in this case is whether the circuit court had
jurisdiction to revoke Sobrado’s suspended sentence. Section 47-7-37 provides that “[a]t any
time during the period of probation the court, or judge in vacation, may issue a warrant for
violating any of the conditions of probation . . . .” (Emphasis added). Our statute on postrelease supervision states that “[t]he period of post-release supervision shall be conducted
in the same manner as a like period of supervised probation, including a requirement that the
defendant shall abide by any terms and conditions as the court may establish.” Miss. Code
Ann. § 47-7-34(2). “Procedures for termination and recommitment shall be conducted in the
same manner as procedures for the revocation of probation and imposition of a suspended
sentence.” Id. Stated differently, the circuit court can issue a warrant for arrest for a
violation that occurs during the period of probation or post-release supervision. This is the
exact principle announced by the supreme court in Smith, 742 So. 2d at 1148 (¶11).
¶24.
In its wisdom, the Mississippi Legislature has authorized the MDOC to reclassify
inmates to ERS status or the Intensive Supervision Program (ISP) – colloquially known as
11
“house arrest” – if they meet certain requirements. The MDOC can then release those
inmates from physical custody prior to their final discharge from their term of imprisonment.
During this period of time prior to their official discharge, such inmates are still within the
exclusive jurisdiction of the MDOC. Some refer to such inmates as “outmates.” If they
violate the conditions of ERS or ISP as set by the MDOC, then the MDOC has the sole
authority to reclassify them and return them to custody status. If such an “outmate” commits
a new crime while on ERS or ISP status, he certainly may be prosecuted for that new offense.
However, only the MDOC can reclassify him to custody status by revoking his ERS and
require that he serve out the balance of his initial sentence.
¶25.
The record does not contain documentation to support the fact that Sobrado was
actually discharged from ERS on June 21, 2009. It is unclear whether Sobrado was on postrelease supervision at the time the alleged misconduct that led to his revocation occurred.
Furthermore, due to the contents of the record before us, we cannot determine whether
Sobrado signed out of the restitution center. And if he did, we cannot determine if his
reasoning was based on his refusal to participate in the program, or whether he simply
wanted an explanation regarding the balance of his account and the nature of his joint and
several liability. It is unclear whether the rules of the restitution center provide a mechanism
for Sobrado’s seemingly reasonable requests. Furthermore, it is unclear whether Sobrado
had an avenue to receive the information he sought, yet chose not avail himself of it.
Consequently, we reverse the judgment of the circuit court and remand this matter for an
evidentiary hearing.
¶26.
During that evidentiary hearing, the circuit court must determine if the MDOC had
12
discharged Sobrado from ERS and placed him on post-release supervision on June 21, 2009.
Additionally, the circuit court must determine whether Sobrado had signed out of the
restitution center. If he had, the circuit court must determine whether Sobrado’s decision to
sign out of the restitution center because he wanted explanations regarding his restitution
account and the nature of his joint and several liability is tantamount to his refusal to abide
by the terms of the restitution center. Naturally, Sobrado’s misconduct that occurred before
he was actually placed on post-release supervision will be irrelevant during the evidentiary
hearing, because the circuit court had no authority to revoke Sobrado’s post-release
supervision for misconduct that occurred while he was on ERS.
¶27.
As a final note, it bears mentioning that Sobrado filed a motion for immediate release
with this Court. We entered an order passing that motion for consideration of the merits of
this appeal. Based on our resolution of Sobrado’s appeal, we find that his motion for
immediate release is moot.
¶28. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED,
AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
PONTOTOC COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND
JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH
SEPARATE WRITTEN OPINION.
CARLTON, J., DISSENTING:
¶29.
I respectfully dissent from the majority’s opinion. I would affirm the circuit court’s
decision in this case. The original sentencing order required Sobrado to attend the restitution
13
center to complete restitution as a term and condition prior to receiving his suspended
sentence and post-release supervision (PRS). See Miss. Code Ann. § 47-7-34 (Rev. 2011)
(defendant shall abide by the terms and conditions as the court may establish). Under
Mississippi Code Annotated section 47-7-37 (Rev. 2011), the sentencing judge possessed the
authority and discretion to revoke Sobrado’s suspended sentence and PRS for his violation
of a condition or term of his suspended sentence and PRS.8 The record shows Sobrado quit
the restitution center by signing himself out after being told that he failed to complete his
service and pay his restitution.
¶30.
Sentencing judges certainly possess the statutory authority to establish the period of
supervision, as well as the terms and conditions of supervision. Miss. Code Ann. §§ 47-734(2); 47-7-35 (Rev. 2011). Section 47-7-34(2) also provides as follows:
The period of post-release supervision shall be conducted in the same manner
as a like period of supervised probation, including a requirement that the
defendant shall abide by any terms and conditions as the court may establish.
Failure to successfully abide by the terms and conditions shall be grounds to
terminate the period of post-release supervision and to recommit the defendant
to the correctional facility from which he was previously released.9
See also Grace v. State, 919 So. 2d 987, 989 (¶8) (Miss. Ct. App. 2005); Rodriguez v. State,
839 So. 2d 561, 564 (¶¶9-10) (Miss. Ct. App. 2003). Sobrado’s violation herein extends
beyond a mere violation of an administrative rule imposed by the MDOC upon defendants
when incarcerated, and instead extends to an expressed condition of his suspended sentence.
See Miss. Code Ann. §§ 47-5-801 to -807 (Rev. 2011) (MDOC administrative remedies
8
See Rodriguez v. State, 839 So. 2d 561, 564 (¶¶9-10) (Miss. Ct. App. 2003).
9
See also Lott v. State, 115 So. 3d 903, 907-08 (¶13) (Miss. Ct. App. 2013)
(acknowledging court can require defendant to abide by terms and conditions of PRS).
14
procedures); Siggers v. Epps, 962 So. 2d 78, 80 (¶6) (Miss. Ct. App. 2007) (Administrativeremedies procedures apply to inmate grievances for adverse MDOC rule-violation reports.).
¶31.
With respect to our standard of review of the trial court’s denial of Sobrado’s PCR
motion, precedent establishes that the 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) (Supp. 2013). “When reviewing a [trial] court's decision to deny a [PCR
motion,] this Court will not disturb the trial court's factual findings unless they are found to
be clearly erroneous.” Presley v. State, 48 So. 3d 526, 528 (¶10) (Miss. 2010). However,
we review questions of law utilizing a de novo standard of review. Id.
¶32.
Application of the standard of review to this case requires that we affirm the trial
court’s denial of Sobrado’s PCR motion. As previously acknowledged, the sentencing trial
court clearly possessed the statutory authority to establish terms and conditions for Sobrado’s
receipt of his suspended sentence and PRS. The trial court also possessed the authority to
require Sobrado to attend the restitution center and complete restitution as such a condition
to the suspension of his sentence and PRS. In an analogous case, Rodriguez, 839 So. 2d at
564 (¶¶9-10), this Court recognized that the completion of service at a county restitution
center constituted a valid condition of probation or suspended sentence. More specifically,
this Court acknowledged that completion of services at the Hinds County Restitution Center
was one of the conditions the trial court imposed as a condition of defendant Rodriguez’s
suspended sentence. Id. at (¶9). Rodriguez, however, failed to satisfy the required restitution
and was transferred from both the Hinds County Restitution Center and the Leflore County
15
Restitution Center.10 Upon revocation of his suspended sentence, the trial court ordered
Rodriguez into the custody of the Hinds County Restitution Center, where he was to remain
until he completed the service at the court-ordered restitution center. Id. at 563 (¶3). Upon
appellate review, this Court recognized the court-ordered restitution as a valid condition of
Rodriguez’s suspended sentence. Id. at 564 (¶¶9-10). This Court also found that the trial
court possessed sufficient evidence supporting revocation of Rodriguez’s sentence, since the
record reflected that Rodriguez failed to complete his service and restitution at the county
restitution center. Id.
¶33.
Similarly, in the instant case, the record contains sufficient evidence supporting the
factual findings of the trial court that Sobrado failed to satisfy the terms and conditions of the
original sentencing order requiring that he complete service at a restitution center to satisfy
restitution.11 The record further reflects that Sobrado was not denied due process in his
revocation proceedings. Clearly, the record reflects that Sobrado is entitled to no relief.12
10
See Riely v. State, 562 So. 2d 1206, 1211-12 (Miss. 1990) (resident of the Attala
County Restitution Center was not denied due process when he had notice of hearing, right
to be heard, right to present evidence, and right to cross-examine witnesses).
11
Revocation must be based upon a showing of evidence that more likely than not the
defendant violated the terms and conditions of his suspended sentence or PRS. See Miss.
Code Ann. § 47-7-37; Miss. Code Ann. § 47-7-34(2); see also Reese v. State, 21 So. 3d 625,
628 (¶11) (Miss. Ct. App. 2008); Jones v. State, 976 So. 2d 407, 413 (¶19) (Miss. Ct. App.
2008) (appropriate standard for revocation of PRS is whether the circuit court believes it was
more likely than not that the defendant violated the terms and conditions of his PRS).
12
See Payton v. State, 845 So. 2d 713, 719 (¶22) (Miss. Ct. App. 2003) (cert. denied),
(explaining minimum due process required in revocation proceedings). In the instant case,
the requirement of restitution as a condition of the suspended sentence was articulated in the
original sentencing order. Hence, no issue exists as to Sobrado receiving notice of the terms
and conditions required for suspension of his sentence and PRS. See also Tunstall v. State,
767 So. 2d 167, 169-71 (¶¶10-16) (Miss. 1999) (acknowledging the validity of express
16
¶34.
The majority withdraws its original opinion and issues this new majority to extend the
decision to overrule Edwards v. State, 946 So. 2d 822 (Miss. Ct. App. 2007). However, in
so doing, the majority overlooks the long line of precedent that Edwards relied upon that
recognizes the sentencing trial judge’s authority to revoke a suspended sentence for
violations of the terms and conditions thereof, before expiration of the sentence. 13 The
majority lacks a proper basis to withdraw the Court’s original opinion and issue a new,
revised opinion to overrule past precedent, since no error of law or fact existed and no
injustice existed in the Court’s original opinion warranting such withdrawal and issuance of
a new opinion.14
¶35.
The majority raises a question as to the validity of the failure to pay restitution as a
basis for revocation of a suspended sentence. However, restitution has long been recognized
as a valid condition of probation or a suspended sentence. 15 In the case of Bradford v. State,
832 So. 2d 1288, 1290 (¶10) (Miss. Ct. App. 2002), Judge Southwick, writing for the Court,
preconditions).
13
See Riely, 562 So. 2d at 1211-12; Grace, 919 So. 2d at 989 (¶8); Rodriguez, 839
So. 2d at 564 (¶¶9-10).
14
See Ryan v. Schad, 133 S. Ct. 2548, 2550-51 (2013); Bell v. Thompson, 545 U.S.
794, 804-07 (2005). Neither party briefed Edwards v. State, and no error of law or fact or
injustice exists in this case. The majority fails to show that any exceptional circumstance in
the court’s original opinion warranted review of this Court’s decision on its own motion.
See also M.R.A.P. 41(a) (providing that the mandate of the Mississippi Court of Appeals
shall issue twenty days after the latest of the following: the entry of judgment; the disposition
of a timely motion for rehearing; or the dismissal of a petition for certiorari review in the
Mississippi Supreme Court).
15
See also Miss. Code Ann. § 9-7-201(8)(a) (Supp. 2013) (Circuit Court Community
Corrections Act allows sentencing offenders to restitution center as condition of suspended
sentence or PRS); Miss. Code Ann. § 99-37-19 (Supp. 2013) (restitution centers).
17
relied upon Bearden v. Georgia, 461 U.S. 660, 668-69 (1983), when explaining that if the
court finds a probationer failed to pay restitution through neglect or design or willful
disobedience, then revocation of the probationer’s probation does not violate the Fourteenth
Amendment of the United States Constitution.16 The record herein contains evidence of
Sobrado’s willful refusal to complete restitution and service at the restitution center;
accordingly, I submit that the record before us meets the standard articulated by Judge
Southwick in Bradford.
¶36.
Similarly, in Edwards, 946 So. 2d at 823 (¶4), which the majority overrules, the
defendant, Edwards, pled guilty to felony DUI and was sentenced to five years, with two
years to serve, in the custody of the MDOC and three years on PRS. He was released from
MDOC custody on May 17, 2004, and then placed on ERS. Id. at 823 (¶1). On June 16,
2004, Edwards was arrested for aggravated assault and was thereafter indicted for the assault
on August 10, 2004. Id. In that case, Edwards violated no internal rule of MDOC while
incarcerated, but instead violated a term and condition of his probation, which was set forth
in his original sentencing order, by committing the felony of aggravated assault while
released on ERS. On review, this Court recognized the discretion and jurisdiction of the
sentencing trial judge to revoke probation when the defendant violates the terms of the
probation, even while on ERS. Id. at 823-24 (¶8). Edwards’s indictment reflected a
violation of the terms and conditions of his probation and suspended sentence while placed
16
For other cases wherein failure to pay restitution was included as a basis for
revocation, see Lott, 115 So. 3d 903; and Summerall v. State, 2012-CP-01354-COA, 2013
WL 6231796 (Miss. Ct. App. Dec. 3, 2013).
18
on ERS. Id. Additionally, Edwards’s ERS status did not prohibit the State from prosecuting
him for the aggravated assault committed while he was on ERS, nor did it prohibit revocation
of his probation. An application of the majority’s logic would have prevented the State from
prosecuting Edwards since he committed a crime while on ERS.
¶37.
The authority and discretion of a sentencing trial judge is undermined by the assertion
that the trial court is powerless to revoke probation or a suspended sentence when a
defendant commits a felony and thus violates the express conditions and terms of that
probation or suspension.17 In Edwards, Edwards was indicted for the felony of aggravated
assault, which carried a maximum sentence of twenty years (even though Edwards was
sentenced to serve only seven years in the custody of the MDOC, with five years of PRS).
Id. at 823 (¶3). The sentence imposed for the DUI felony offense, however, had not yet
expired. Id. Thus, the sentencing trial court possessed the authority to revoke Edwards’s
probation for the felony he committed while on ERS. Id. at 824 (¶8). In other cases, this
Court chose to adopt a reasonable interpretation of a trial judge’s inartfully worded
sentencing order in order to determine the trial court’s intent to suspend a sentence of
incarceration on the condition of successful completion of ISP.18 See Johnson v. State, 77
17
See Johnson, 77 So. 3d 1152, 1157 (¶18) (Miss. Ct. App. 2012) (This Court chose
a reasonable interpretation and determined that the “intent” of the trial court’s sentencing
order was to suspend eight years of the defendant’s sentence and make successful
completion of ISP a condition of the defendant’s suspended sentence.).
18
See Ivory v. State, 999 So. 2d 420, 427 (¶17) (Miss. Ct. App. 2008). In Ivory, the
defendant was placed on ISP, and she used cocaine during that period. Id. at 423 (¶4). This
Court concluded that based on the discretion afforded to sentencing judges, the circuit court
retained jurisdiction over Ivory to resentence her by suspending the remaining fifteen years
of her sentence and placing her on PRS. Id. at 429 (¶27).
19
So. 3d 1152, 1157 (¶18) (Miss. Ct. App. 2012).19
¶38.
The opinion in Edwards cites to Grace, 919 So. 2d at 989 (¶8), wherein this Court
similarly found the trial court possessed jurisdiction until expiration of the entire term for
which Grace was sentenced, “including any and all portions ordered suspended.” Edwards,
946 So. 2d at 824 (¶8). This Court also found that the trial court could revoke probation for
a violation of the probation terms committed while the defendant was on ERS or PRS.
Grace, 919 So. 2d at 989 (¶8). I would agree that MDOC lacks authority to revoke a
sentence that was suspended by the sentencing trial court, and that the sentencing trial court
lacks authority to revoke a sentence suspended by the trial court due to a violation of a mere
internal MDOC rule that is not a valid specified condition or term of the suspended
sentence.20 However, the sentencing trial court, as in this case, certainly retains authority to
revoke a suspended sentence and PRS for a violation of the conditions and terms required
for such suspension as set forth in the original sentencing order.21 Rodriguez, 839 So. 2d at
19
Judge Roberts authored the Court’s opinion.
20
Section 47-5-803(2) provides the procedures for inmate grievances pertaining to
MDOC rule violations. See also Siggers, 962 So. 2d at 80 (¶6) (inmates aggrieved by
adverse MDOC-rule-violation reports must pursue those grievances pursuant to the
administrative review procedures); see Miss. Code Ann. §§ 47-5-801 to -807 ( administrative
procedures for inmates of MDOC to pursue administrative remedies for grievances against
the State or MDOC). See generally Rodriguez, 839 So. 2d at 563 (¶6) (discussing
jurisdiction over revocation of a suspended sentence and PRS); Grace, 919 So. 2d at 989
(¶8) (This Court acknowledged that the sentencing trial court retained jurisdiction over the
defendant on probation for possession of a controlled substance for the entire period of the
eight-year sentence, including when the defendant was on ERS or PRS, and thus the
sentencing trial court possessed the authority to revoke probation when the defendant failed
to report to his supervising officer.).
21
Grace, 919 So. 2d at 989 (¶8) (citing Rodriguez, 839 So. 2d at 563 (¶6)) (Authority
to revoke probation is vested only in the courts under section 47-7-37.).
20
563 (¶6). This Court reasoned in Grace that the authority to revoke probation is vested only
in the courts under section 47-7-37, and accordingly, probationers remain under the
jurisdiction of the courts until the entire term for which they were sentenced has expired,
including any and all portions ordered suspended. Grace, 919 So. 2d at 989 (¶8); see also
Tunstall v. State, 767 So. 2d 167, 169-71 (¶¶10-16) (Miss. 1999) (acknowledging the validity
of express preconditions).
¶39.
Jurisprudence recognizes that sentencing trial courts may impose conditions and terms
that extend beyond the minimum statutory terms and conditions. For example, Mississippi
DUI Law & Practice, citing section 47-7-35, acknowledges:
[T]he courts referred to in [Mississippi Code Annotated] section[s] 47-7-33
[(Rev. 2011)] or 47-7-34 shall determine the terms and conditions of probation
or [PRS] and may alter or modify, at any time during the period of probation
or [PRS], the conditions and may include among the following or any other:
....
(a)
Commit no offense against the laws of this or any other
state . . . ;
(b)
Avoid injurious or vicious habits;
(c)
Avoid persons or places of disreputable or harmful
character;
(d)
Report to the probation and parole officer as directed;
(e)
Permit the probation and parole officer to visit him at
home or elsewhere;
(f)
Work faithfully at suitable employment so far as
possible;
(g)
Remain within a specified area;
21
(h)
Pay his fine in one (1) or several sums;
(i)
Support his dependants;
(j)
Submit, as provided in [Mississippi Code Annotated]
[s]ection 47-5-601 [Rev. 2011], to any type of breath,
saliva[,] or urine chemical analysis test, the purpose of
which is to detect the possible presence of alcohol or a
substance prohibited or controlled by any law of the State
of Mississippi or the United States[.]
See Victor W. Carmody, Kevin T. Stewart & Lance O. Mixon, Mississippi DUI Law &
Practice § 21:8, at 789 (2012).
¶40.
In summary, the record contains sufficient evidence to support the trial court’s
revocation of Sobrado’s suspended sentence and PRS for a violation of the conditions and
terms set forth in the original sentencing order requiring that he complete his service at the
restitution center and complete the payment of restitution. The trial court possessed authority
to revoke Sobrado’s suspended sentence and PRS until expiration of his sentence for these
violations of the terms and conditions of such suspension and PRS. As acknowledged, we
will not disturb a trial court’s factual findings unless they are found to be clearly erroneous,
and the record reflects substantial evidence supporting the trial court’s findings that Sobrado
failed to complete his service at the restitution center. Moreover, the record reflects no
dispute that Sobrado quit his service at the restitution center after being informed that his
service was not yet complete. Sobrado signed himself out of the restitution center after being
duly informed that he had not yet completed his restitution requirements, and at that time he
was released from ERS. He was then placed onto PRS and ordered to appear before the
sentencing trial judge for his failure to complete his service at the restitution center, as
22
required by the original sentencing order as a condition to the suspension of his sentence and
of his PRS. The revocation hearing complied with statutory and due-process requirements,
and the record reflects substantial evidence supporting the trial court’s revocation decision.
The trial court acted within its authority, and the trial court’s findings are not erroneous.
¶41.
Based on this reasoning, I dissent.
23
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